[42 Pa.B. 4140]
[Saturday, July 7, 2012]
[Continued from previous Web Page]
PART [F] G. Procedures Following Filing of Information Rule 573. Pretrial Discovery and Inspection.
* * * * * (B) DISCLOSURE BY THE COMMONWEALTH
* * * * * (2) DISCRETIONARY WITH THE COURT:
(a) In all court cases, except as otherwise provided in [Rule] Rules 230 (Disclosure of Testimony Before Investigating Grand Jury) and 556.10 (Secrecy; Disclosure), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant's attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
* * * * *
Comment This rule is intended to apply only to court cases. However, the constitutional guarantees mandated in Brady v. Maryland, 373 U.S. 83 (1963), and the refinements of the Brady standards embodied in subsequent judicial decisions, apply to all cases, including court cases and summary cases, and nothing to the contrary is intended. For definitions of ''court case'' and ''summary case,'' see Rule 103.
See Rule 556.10(B)(5) for discovery in cases indicted by a grand jury.
The attorney for the Commonwealth should not charge the defendant for the costs of copying pretrial discovery materials. However, nothing in this rule is intended to preclude the attorney for the Commonwealth, on a case-by-case basis, from requesting an order for the defendant to pay the copying costs. In these cases, the trial judge has discretion to determine the amount of costs, if any, to be paid by the defendant.
* * * * * Pursuant to paragraphs (B)(2)(b) and [(C)(2)(b)] (C)(2) the trial judge has discretion, upon motion, to order an expert who is expected to testify at trial to prepare a report. However, these provisions are not intended to require a prepared report in every case. The judge should determine, on a case-by-case basis, whether a report should be prepared. For example, a prepared report ordinarily would not be necessary when the expert is known to the parties and testifies about the same subject on a regular basis. On the other hand, a report might be necessary if the expert is not known to the parties or is going to testify about a new or controversial technique.
* * * * * Official Note: Present Rule 305 replaces former Rules 310 and 312 in their entirety. Former Rules 310 and 312 adopted June 30, 1964, effective January 1, 1965. Former Rule 312 suspended June 29, 1973, effective immediately. Present Rule 305 adopted June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; Comment revised April 24, 1981, effective June 1, 1981; amended October 22, 1981, effective January 1, 1982; amended September 3, 1993, effective January 1, 1994; amended May 13, 1996, effective July 1, 1996; Comment revised July 28, 1997, effective immediately; Comment revised August 28, 1998, effective January 1, 1999; renumbered Rule 573 and amended March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004; Comment revised March 26, 2004, effective July 1, 2004; amended January 27, 2006, effective August 1, 2006; amended June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 3, 2004 amendments to paragraphs (A), (C)(1)(a), and [(C)(1)(16)] (C)(1)(b), and the revision to the Comment adding the reference to Rules 575 and 576 published with the Court's Order at 34 Pa.B. 1561 (March 20, 2004).
* * * * * Final Report explaining the June 21, 2012 amendments concerning discovery when case is indicted by grand jury published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
PART [F(1)] G(1). Motion Procedures Rule 578. Omnibus Pretrial Motion for Relief.
* * * * *
Comment Types of relief appropriate for the omnibus pretrial motions include the following requests:
* * * * * (5) to quash or dismiss an information;
(6) for change of venue or venire;
(7) to disqualify a judge;
(8) for appointment of investigator; [and]
(9) for pretrial conference[.] ; and
(10) challenging the array of an indicting grand jury.
The omnibus pretrial motion rule is not intended to limit other types of motions, oral or written, made pretrial or during trial, including those traditionally called motions in limine, which may affect the admissibility of evidence or the resolution of other matters. The earliest feasible submissions and rulings on such motions are encouraged.
See Rule 556.4 for challenges to the array of an indicting grand jury and for motions to dismiss an information filed after a grand jury indicts a defendant.
Official Note: Formerly Rule 304, adopted June 30, 1964, effective January 1, 1965; amended and renumbered Rule 306 June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; amended October 21, 1983, effective January 1, 1984; Comment revised October 25, 1990, effective January 1, 1991; Comment revised August 12, 1993, effective September 1, 1993; renumbered Rule 578 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
Report explaining the October 25, 1990 Rule 306 Comment revision published at [12] 20 Pa.B. 1696 (March 24, 1990).
* * * * * 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 21, 2012 revision of the Comment referencing indicting grand jury rules published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 582. Joinder—Trial of Separate Indictments or Informations.
* * * * *
Comment * * * * * Paragraph (A)(1)(a) is based upon Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 ([Pa.] 1981). Paragraph (A)(1)(b) is based upon statutory and case law that, ordinarily, if all offenses arising from the same criminal episode or transaction are not tried together, subsequent prosecution on any such offense not already tried may be barred. See the Crimes Code, 18 Pa.C.S. §§ 109—110; Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808 (1973), addendum opinion on remand, 455 Pa. 622, 314 A.2d 854 ([Pa.] 1974); Commonwealth v. Tarver, 467 Pa. 401, 357 A.2d 539 ([Pa.] 1976). The court has also held that a defendant's failure to move for consolidation does not ordinarily constitute a waiver of an objection to a subsequent, separate trial of any such offense. See, e.g., Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 ([Pa.] 1981).
See Rule 571 concerning arraignment procedures.
Although most references to indictments and indicting grand juries were deleted from these rules in 1993 since the indicting grand jury was abolished in all counties (see PA. CONST. art. I, § 10 and 42 Pa.C.S. § 8931(b)), the reference was retained in paragraphs (A) and (B) of this rule because there may be some cases still pending that were instituted under the former indicting grand jury rules prior to the abolition of the indicting grand jury in 1993. These references to ''indictment'' do not apply in the context of an indicting grand jury convened pursuant to the new indicting grand jury procedures adopted in 2012 in which an information would be filed after a grand jury indicts a defendant. See Rules 103 and 556.11.
Official Note: Rule 1127 adopted December 11, 1981, effective July 1, 1982; amended August 12, 1993, effective September 1, 1993; amended August 14, 1995, effective January 1, 1996; renumbered Rule 582 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; Comment revised June 21, 2012, effective in 180 days.
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 21, 2012 revision of the last paragraph of the Comment concerning the abolition of the indicting grand jury published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
PART [G] H. Plea Procedures Rule
590. Pleas and Plea Agreements. 591. Withdrawal of Plea of Guilty or Nolo Contendere.
CHAPTER 6. TRIAL PROCEDURES IN COURT CASES
PART C(2). Conduct of Jury Trial Rule 646. Material Permitted in Possession of the Jury.
* * * * * (C) During deliberations, the jury shall not be permitted to have:
(1) a transcript of any trial testimony;
(2) a copy of any written or otherwise recorded confession by the defendant;
(3) a copy of the information or indictment; and
(4) except as provided in paragraph (B), written jury instructions.
(D) The jurors shall be permitted to have their notes for use during deliberations.
Comment * * * * * Paragraph (D) was added in 2005 to make it clear that the notes the jurors take pursuant to Rule 644 may be used during deliberations.
[Although most references to indictments and indicting grand juries were deleted from these rules in 1993 because the indicting grand jury was abolished in all counties, see PA. CONST. art. I, § 10 and 42 Pa.C.S. § 8931(b), the reference was retained in this rule because there may be some cases still pending that were instituted prior to the abolition of the indicting grand jury.]
Official Note: Rule 1114 adopted January 24, 1968, effective August 1, 1968; amended June 28, 1974, effective September 1, 1974; Comment revised August 12, 1993, effective September 1, 1993; amended January 16, 1996, effective July 1, 1996; amended November 18, 1999, effective January 1, 2000; renumbered Rule 646 March 1, 2000, effective April 1, 2001; amended June 30, 2005, effective August 1, 2005; amended August 7, 2008, effective immediately; amended October 16, 2009, effective February 1, 2010; amended June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
* * * * * Final Report explaining the October 16, 2009 amendment concerning providing jurors with the elements of the charged offenses in writing published with the Court's Order at 39 Pa.B. [6331,] 6333 (October 31, 2009).
Final Report explaining the June 21, 2012 amendment to paragraph (C)(3) and the revision of the Comment concerning the former abolition of the indicting grand jury published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 648. Verdicts.
* * * * *
Comment Paragraph (A) of the rule replaces the practice of automatically appointing the first juror chosen as foreman of the jury. Paragraphs (C), (D), and (E) serve only to codify the procedure where conviction or acquittal of one offense operates as a bar to a later trial on a necessarily included offense. Similarly, the rule applies to situations of merger and autrefois convict or acquit. No attempt is made to change the substantive law [which] that would operate to determine when merger or any of the other situations arise. See, e.g., Commonwealth v. Comber, 374 Pa. 570, 97 A.2d 343 (1953).
Paragraph (F) provides for the disposition in the court of common pleas of any summary offense that is joined with the misdemeanor, felony, or murder charges that were tried before the jury. Under no circumstances may the trial judge remand the summary offense to the issuing authority, even in cases in which the defendant is found not guilty by the jury. See also Rule 543 (Disposition of Case at Preliminary Hearing).
Paragraph (G) provides for the polling of the jury and requires the judge to send the jury back for deliberations in accordance with Commonwealth v. Martin, 379 Pa. 587, 109 A.2d 325 (1954). With respect to the procedure upon non-concurrence with a sealed verdict, see Rule 649(C).
Although most references to indictments and indicting grand juries were deleted from these rules in 1993 because the indicting grand jury was abolished in all counties, see PA. CONST. art. I, § 10 and 42 Pa.C.S. § 8931(b), the reference was retained in paragraphs (D) and (E) of this rule because there may be some cases still pending that were instituted under the former indicting grand jury rules prior to the abolition of the indicting grand jury in 1993. These references to ''indictment'' do not apply in the context of an indicting grand jury convened pursuant to the new indicting grand jury procedures adopted in 2012 in which an information would be filed after a grand jury indicts a defendant. See Rules 103 and 556.11.
Official Note: Rule 1120 adopted January 24, 1968, effective August 1, 1968; amended February 13, 1974, effective immediately; paragraph (E) amended to correct printing error June 28, 1976, effective immediately; paragraph (F) amended April 26, 1979, effective July 1, 1979; amended August 12, 1993, effective September 1, 1993; renumbered Rule 648 and amended March 1, 2000, effective April 1, 2001; amended March 9, 2006, effective September 1, 2006; Comment revised June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
* * * * * Final Report explaining the March [3] 9, 2006 amendments 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 revision of the Comment concerning the former abolition of the indicting grand jury published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
CHAPTER 9. POST-CONVICTION COLLATERAL PROCEEDINGS Rule 903. Docketing and Assignment.
* * * * *
Comment * * * * * Although most references to indictments and indicting grand juries were deleted from these rules in 1993 since the indicting grand jury has been abolished in all counties, see PA. CONST. art. I, § 10 and 42 Pa.C.S. § 8931(b), the reference was retained in paragraph (A) of this rule because there may be some cases still pending that were instituted under the former indicting grand jury rules prior to the abolition of the indicting grand jury in 1993. These references to ''indictment'' do not apply in the context of an indicting grand jury convened pursuant to the new indicting grand jury procedures adopted in 2012 in which an information would be filed after a grand jury indicts a defendant. See Rules 103 and 556.11.
If a defendant in a death penalty case files a petition before the trial judge has made a determination concerning the appointment of counsel as required by Rule 904(G), after making the docket entry and placing the petition in the criminal case file, the clerk promptly must forward a copy of the petition to the trial judge for that determination.
Official Note: Previous Rule 1503 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by present Rule 1504. Present Rule 1503 adopted February 1, 1989, effective July 1, 1989; amended June 19, 1996, effective July 1, 1996; amended August 11, 1997, effective immediately; Comment revised January 21, 2000, effective July 1, 2000; renumbered Rule 903 and Comment revised March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004; Comment revised June 21, 2012, effective in 180 days.
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 21, 2012 revision of the Comment concerning the former abolition of the indicting grand jury published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
CHAPTER 10. RULES OF CRIMINAL PROCEDURE FOR THE PHILADELPHIA MUNICIPAL COURT AND THE PHILADELPHIA TRAFFIC COURT
PART A. Philadelphia Municipal Court Procedures Rule 1003. Procedure in Non-Summary Municipal Court Cases.
* * * * * (D) PRELIMINARY ARRAIGNMENT
* * * * * (3) At the preliminary arraignment, the issuing authority:
* * * * * (d) also shall [also] inform the defendant:
(i) of the right to secure counsel of choice and the right to assigned counsel in accordance with Rule 122;
(ii) of the day, date, hour, and place for the trial, which shall not be less than 20 days after the preliminary arraignment, unless the issuing authority fixes an earlier date for the trial or the preliminary hearing upon request of the defendant or defense counsel, with the consent of the attorney for the Commonwealth;
(iii) in a case charging a felony, 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, of the date, time, and place of the preliminary hearing, which shall not be less than 14 nor more than 21 days after the preliminary arraignment unless extended for cause or the issuing authority fixes an earlier date upon the request of the defendant or defense counsel with the consent of the complainant and the attorney for the Commonwealth; and that failure to appear without good cause for the preliminary hearing will be deemed a waiver by the defendant of the right to be present at any further proceedings before the issuing authority, and that the case shall proceed in the defendant's absence, and a warrant of arrest shall be issued; and
* * * * *
Comment * * * * * 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 (1987).
The 2012 amendment to paragraph (D)(3)(d)(iii) 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 556.2. See also Rule 556.11 for the procedures when a case will be presented to the indicting grand jury.
Under paragraph (D)(4), after the preliminary arraignment, if the defendant is detained, the defendant must be given an immediate and reasonable opportunity to post bail, secure counsel, and notify others of the arrest. Thereafter, if the defendant does not post bail, he or she must be committed to jail as provided by law.
* * * * * Official Note: Original Rule 6003 adopted June 28, 1974, effective July 1, 1974; amended January 26, 1977, effective April 1, 1977; amended December 14, 1979, effective April 1, 1980; amended July 1, 1980, effective August 1, 1980; amended October 22, 1981, effective January 1, 1982; Comment revised December 11, 1981, effective July 1, 1982; amended January 28, 1983, effective July 1, 1983; amended February 1, 1989, effective July 1, 1989; rescinded August 9, 1994, effective January 1, 1995. New Rule 6003 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; amended March 22, 1996, effective July 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; amended August 28, 1998, effective immediately; renumbered Rule 1003 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 August 15, 2005, effective February 1, 2006; amended April 5, 2010, effective April 7, 2010; amended January 27, 2011, effective in 30 days; amended June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
* * * * * Court's Order adopting the April 5, 2010 amendments to paragraph (D)(3)(d) published at 40 Pa.B. 2012 (April 17, 2010).
Court's Order adopting the January 27, 2011 amendments to paragraph (E) concerning hearsay published at 41 Pa.B. 834 (February 12, 2011).
Final Report explaining the June 21, 2012 amendments to paragraph (D)(3)(d)(iii) concerning indicting grand juries published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
FINAL REPORT1
New Pa.Rs.Crim.P. 556 through 556.12, and Correlative Changes to Pa.Rs.Crim.P. 103, 540, 542, 544, 547, 560, 573, 578, 582, 646, 648, 903, and 1003
Indicting Grand Juries On June 21, 2012, effective in 180 days, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court adopted new Rules of Criminal Procedure 556 through 556.12, amended Rules of Criminal Procedure 103, 540, 544, 547, 560, 573, 646, and 1003, and approved the revision of the Comments to Rules of Criminal Procedure 542, 578, 582, 648, and 903. The rule changes provide, inter alia, for the resumption of the use of indicting grand juries, but only as a local option in the narrowly defined circumstance of cases in which witness intimidation has occurred, is occurring, or is likely to occur.
I. Background
In December 2009, the Philadelphia Inquirer published a series of articles reporting on what was viewed as systemic problems within the criminal justice system of the First Judicial District. In response to these articles, the Court appointed a Commission to study the issues raised by the Philadelphia Inquirer.
One of the problems identified in the Inquirer articles concerned intimidation by threats of violence to witnesses and/or witnesses' family members. ''Witness intimidation pervades the Philadelphia criminal courts, increasingly extracting a heavy toll in no-show witnesses, recanted testimony—and collapsed cases . . . Prosecutors, detectives, and even some defense lawyers say witness fear has become an unspoken factor in virtually every court case involving violent crime in Philadelphia. Reluctant or terrified witnesses routinely fail to appear in court, and when they do, they often recant their earlier testimony or statements to police.''2
The Court's Commission suggested that one means to address the witness intimidation problem would be to re-institute the indicting grand jury in Pennsylvania. The Commission appointed a subcommittee to develop procedures for the re-instituted indicting grand jury in Pennsylvania. The Commission's subcommittee's recommendations included, as a way to address the problem of witness intimidation, a proposal that the Court adopt rules providing for the use of the indicting grand jury similar to the indicting grand jury procedures in a number of other jurisdictions and the federal courts. The Commission's subcommittee opined that providing the attorney for the Commonwealth with the option of proceeding directly from a preliminary arraignment to an indicting grand jury, rather than having to go through a preliminary hearing, would eliminate the problems related to witness intimidation in Philadelphia. The Commission's subcommittee suggested that the indicting grand jury be utilized in lieu of proceeding by preliminary hearing on an as-needed basis in cases in which witness intimidation has occurred or is a distinct possibility. The Commission further postulated that, because the Pennsylvania Supreme Court has the exclusive authority to establish rules of criminal procedure, the Court has the authority issue an order that would repudiate 42 Pa.C.S. § 8931(f) and provide district attorneys with the discretion to proceed with a preliminary hearing followed by the filing of an information or proceed directly from the preliminary arraignment to an indicting grand jury.
The Court referred the matter to the Criminal Procedural Rules Committee for a ''considered evaluation'' of the Commission's subcommittee's recommendation and whether the process for re-instituting the indicting grand jury could be accomplished by rule or would have to be by statute.
The Criminal Procedural Rules Committee, in considering whether the process for re-instituting the indicting grand jury was within the Court's rule-making authority, reviewed the history of the indicting grand jury and its evolution in Pennsylvania. We also examined the constitutional provisions, statutes, rules, and the case law governing indicting grand juries in Pennsylvania and in other jurisdictions. In addition, the Committee reviewed the legislative and rule history relative to the constitutional amendment that permitted judicial districts, with the permission of the Court, to elect to proceed by information instead of indictment.
Consistent with the views expressed by the Commission's subcommittee, the consensus of the Committee is that, pursuant to its constitutional and statutory authority to prescribe general rules governing practice, procedure, and conduct of all courts, the Court has the power to re-institute the indicting grand jury by rule. In reaching this conclusion, the Committee, also agreeing with the position of the Commission's subcommittee, reasoned that because the 1973 amendment of Article I § 10 of the Pennsylvania Constitution and the subsequent enabling legislation3 permitted, but did not mandate, the courts of common pleas to proceed by information instead of by indictment, but only with the permission of the Court, the Court similarly could permit the same courts of common pleas to resume using the indicting grand jury with the permission of the Court. The Committee also noted that the Court already has exercised its rule-making authority in this area by adopting new rules in 1964 governing indicting grand juries, adopting rule changes in 1974 establishing the procedures for proceeding with an information instead of by indicting grand jury, and after the last court of common pleas received the Court's approval to proceed by information in 1991, in 1993, rescinding the indicting grand jury rules as no longer necessary. The members believe this history fully supports the Court proceeding by rule to re-institute the use of the indicting grand jury.
II. Discussion
Placement of New Rules
When initially considering the placement of the new indicting grand jury rules, it was thought that the rules merely would be re-inserted into the same chapter of the rules where the indicting grand jury rules had been prior to being rescinded—then-Chapter 200 (Grand Jury, Indictment, and Information). However, since the time when the indicting grand jury rules were rescinded, the Criminal Rules have been reorganized and renumbered, and there no longer is a chapter comparable to former Chapter 200.4
In the current rules, Chapter 200 deals only with investigations and includes the search warrant and investigating grand jury rules. The rules governing preliminary hearings are in Chapter 5, Part D (Proceedings in Court Cases Before Issuing Authorities), and the rules governing informations, formerly in Chapter 2, are now in Chapter 5 Part E (Procedures Following a Case Held for Court).
Procedurally, the indicting grand jury procedures are comparable to preliminary hearing procedures and would occur after the preliminary arraignment and before the procedures for when a case is held for court. In view of this, a new part, Part E (Indicting Grand Jury), has been added to Chapter 5 and is dedicated to the indicting grand jury procedures.5 The new rules begin with Rule 556. Because of the dearth of available numbers in this chapter, although not a preferred method for numbering the Criminal Rules, but a less confusing option than renumbering all the rules in Chapter 5, all the new rules in Part E fall under Rule 556, and the next rules in the sequence are 556.1 etc.
Resumption of Indicting Grand Jury
The Committee recommended, because the Court was constitutionally required to approve the judicial districts' requests to proceed by information instead of indictment, that before a judicial district may resume using the indicting grand jury, the judicial district be required to receive the approval of the Court. Accordingly, the Court, in its Order adopting the new indicting grand jury rules, is requiring that the individual judicial districts petition the Court for permission to re-institute the indicting grand jury, similar to the petition procedure used when the judicial districts requested permission to proceed by information. To provide notice of this requirement, the Order would be referenced in the Comment to new Rule 556.
Scope of Indicting Grand Jury Authority: Proposed New Rule 556 (Indicting Grand Jury)
The Committee discussed how broad the jurisdiction of the indicting grand juries should be and whether the scope should be expanded beyond the cases in which witness intimidation is at issue.
After considering various approaches, the approach approved is, as a first step for bringing back the indicting grand jury, that the new procedures be narrowly drafted so that the indicting grand jury is to be used on an as-needed basis where witness intimidation has occurred or is a distinct possibility. In reaching this conclusion, consideration also was given to the facts that indicting grand juries have not been used in Pennsylvania for more than eighteen years and the new rules are not providing for a preliminary hearing procedure following indictment as was the case in the previous practice.
Accordingly, new Rule 556 (Indicting Grand Jury) permits the judicial districts to proceed by indicting grand jury as provided by the rules but only in cases in which witness intimidation has occurred, is occurring, or is likely to occur.
New Rule 556.1 (Summoning Panels of Grand Jurors)
New Rule 556.1 sets forth the procedures for summoning an indicting grand jury. These procedures are similar to the procedures for summoning an investigating grand jury set forth in Rule 221 except that the new rule does not set a limit on the number of individuals to summon. As explained in the Comment, the decision on the number of jurors to summon is left to the discretion of the judge to accommodate the needs of the judicial district.
When a judicial district elects to proceed with the indicting grand jury, the president judge, or the president judge's designee, must order that one or more panels be summoned. The Committee noted that some of the judicial districts that choose to use the indicting grand jury may want to have a standing grand jury for that purpose, while other judicial districts will summon the indicting grand jury on an as-needed basis. The rule is intended to permit both practices.
The Committee also discussed whether judicial districts with sitting investigating grand juries could order the investigating grand jury to sit as an indicting grand jury when an indicting grand jury is needed. The members, particularly the members from the smaller judicial districts, noted that mandating two separate grand juries in a county, an investigating one and an indicting one, could double the cost and the administrative burden. They reasoned that if there is an existing investigating grand jury, permitting this dual function would promote judicial economy and would make it easier for the smaller judicial districts to utilize the indicting grand jury under these rules. In addition, from the Committee's research into this question, we learned that several other jurisdictions provide for this dual function by rule or statute.6
In view of these considerations, the new rules permit this dual function in Pennsylvania. To accommodate a sitting investigating grand jury to sit as an indicting grand jury, to the extent possible, the new procedures for the indicting grand jury, including the procedures for summoning, are the same as the procedures for the investigating grand jury.7
The Committee also discussed whether by permitting the investigating grand jury to sit as an indicting grand jury, the rules create an inconsistency with the provision of Section 4548(c) of the Investigating Grand Jury Act, 42 Pa.C.S. § 4548(c) (Other Powers), that provides, inter alia, ''[e]xcept for the power to indict, the investigating grand jury shall have every power available to any other grand jury in the Commonwealth.'' The Committee initially thought the statute could be a problem and in the published version of the proposal provided for the limited suspension of the statute.
The Committee reconsidered this proposed suspension during the post-publication discussion of the rules. Although the new rules permit a judicial district to have the members of a standing investigating grand jury to sit as an indicting grand jury, there is a bright line between the functions of the two grand juries. The investigating grand jury proceeds as provided in Rules of Criminal Procedure 220 through 231 and in 42 Pa.C.S. § 4521 et seq. and the indicting grand jury will proceed pursuant to the new rules. Accordingly, the Committee recommended to the Court that a suspension is unnecessary. Consistent with this decision, the Comment to new Rule 556 includes a paragraph that makes it clear that the new rules only apply to indicting grand juries and do not apply to any county, regional, or statewide investigating grand juries.
New Rule 556.2 (Proceeding by Indicting Grand Jury without Preliminary Hearing)
New Rule 556.2 sets forth the new procedures for either proceeding to an indicting grand jury or proceeding to a preliminary hearing. Although the Commission's subcommittee proposed that the judge always must summon a grand jury upon the request of the attorney for the Commonwealth, the Committee believes there must be some oversight of the process by the judge, particularly since the scope of the grand jury is limited. To accomplish this, paragraph (A)(1) of new Rule 556.2 requires that to proceed to an indicting grand jury, the attorney for the Commonwealth must file a motion setting forth sufficient facts that show that witness intimidation has occurred, is occurring, or is likely to occur. This fact-based motion procedure provides the judge with an opportunity to decline to grant the motion but only if the attorney for the Commonwealth does not make out probable cause that witness intimidation has occurred, is occurring, or is likely to occur. However, if the judge finds the motion makes out probable cause, he or she must grant the motion.
The Committee received some publication responses questioning the motion procedure, but after reconsidering this procedure during its post-publication discussions, declined to make the changes suggested by the respondents and reaffirmed that there should be some judicial oversight at this stage. Concerning the issues the respondents had about the motion procedure leading to litigation, the Committee's consensus was that the rules should remain silent about litigating these motions. The members observed that there are a number of motions filed in criminal cases for which the rules do not provide procedures for challenges or for appeals.
The Committee, however, did agree that the published version of Rule 556.2 should be modified to provide further clarity concerning the Commonwealth's burden for establishing the facts that evidence there is or is likely to be witness intimidation. The Committee modified the published version of new Rule 556.2 to require that the attorney for the Commonwealth must set forth sufficient facts to make out probable cause that there is or is likely to be witness intimidation.
Because the motion is fact specific, the Committee agreed it would be helpful to the bench and the bar if the verification requirements in Rule 575 (Motions and Answers) are reiterated in the Rule 556.2 Comment, as follows: ''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.''
Paragraph (A)(2) requires that the motion is made ex parte to the president judge, or the president judge's designee. In most cases, it is anticipated that the judge designated to receive these motions also will be the judge designated to supervise the grand jury. If the judge grants the motion, the judge shall seal the motion and the order granting the motion, and the attorney for the Commonwealth shall file both with the clerk of courts. The ex parte and sealing requirements are incorporated into the procedures to ensure the protection of the witnesses and victims subject to the intimidation.
In addition, concurrently with granting the motion, the judge must notify the proper issuing authority that the attorney for the Commonwealth's motion has been granted. This provides the issuing authority with notice that the case is being submitted to the grand jury and that the case is to be closed in the magisterial district office.
Procedurally under the new rules, all court cases will continue to be instituted by the filing of a complaint or an arrest without a warrant, the preliminary arraignment, when required by the rules, will be conducted by the proper issuing authority, and the preliminary hearing initially will be scheduled by the issuing authority. In the published version of the rules, the Committee had proposed that the case remain open in the proper issuing authority's office when the attorney for the Commonwealth is proceeding to an indicting grand jury instead of to a preliminary hearing. The Committee, at that time, reasoned, because the case has not been held for court, and until the grand jury proceeding actually is held, the possibility that a preliminary hearing will have to be held remains. However, several respondents criticized this proposed procedure as being too complicated and confusing because there would be case files open in the issuing authority's office and the clerk of courts office on the same case at the same time, and because the status hearings proposed in the published version of the rules would create additional work at the magisterial district level, and would unnecessarily require additional appearances for the parties, with additional costs and expenses.
In view of these concerns, the Committee reconsidered the proposal and agreed with the respondents that it makes more sense to have the whole case be in the court of common pleas from the time the motion to present a case to an indicting grand jury is granted. Accordingly, once the issuing authority receives notice that the case is going to be submitted to an indicting grand jury, the case must be closed in the magisterial district court and forwarded to the clerk of courts as provided in Rule 547.
To accommodate this new procedure, the provisions that require the issuing authority to close the case after receiving the notice from the judge and to forward the case to the court of common pleas are incorporated into Rule 556.2(A)(3)(a). In addition, Rule 556.2(A)(3)(b) includes a provision comparable to the provision in Rule 543 that once the case is closed in the magisterial district court office, the case is required to remain in the court of common pleas for all further proceedings. This ''no remand' requirement is emphasized in the Rule 556.2 Comment.
Paragraph (C) requires that the case be submitted to the grand jury within 21 days of the date of the order granting the attorney for the Commonwealth's motion unless the defendant waives the grand jury or the attorney for the Commonwealth elects not to proceed to the grand jury. If the case is not presented to the grand jury after the motion has been granted, the defendant would then be entitled to a preliminary hearing in the court of common pleas.
During the post-publication discussions, several members questioned whether 21 days was a sufficient amount of time within which to convene a grand jury for the purpose of hearing the case, particularly when there is no sitting grand jury. Some members questioned why there should be any time limit. Others pointed out that a time limit is necessary to ensure that the case keeps moving and because in many of these cases the defendant is incarcerated. The Committee considered adding in a ''cause shown'' extension of time, extending the time to 45 days, and imposing a time limit on the judge to decide the motion that would trigger the 21-day time for submitting the case. Ultimately, because each idea had faults, the Committee rejected all the alternative ideas. The members agreed that how to work within the 21-day time limit in the rule in each judicial district should be a decision made at the local level.
The rules also permit the defendant to waive the grand jury proceedings in the same manner that he or she may waive the preliminary hearing, with the additional requirement that the attorney for the Commonwealth consents with the waiver. The consent of the Commonwealth requirement was added because there may be situations in which the Commonwealth will want to memorialize a witness's testimony on the record particularly when there is witness intimidation. Paragraph (C) of this rule and new Rule 556.12 provide for the waiver.
New Rule 556.3 (Composition and Organization of the Indicting Grand Jury)
New Rule 556.3 incorporates most of the procedures for the composition and organization of the indicting grand jury that are set forth in Rule 222 for the investigating grand jury because the investigating grand jury also may be sitting as the indicting grand jury. New Rule 556.3 requires that 23 individuals be impaneled for the indicting grand jury as does Rule 222. Rule 556.3, as does Rule 222, requires a minimum of seven and a maximum of 15 individuals as alternate jurors. Both rules require 15 members to constitute a quorum
Paragraphs (C) and (D) address the procedures related to alternates. Paragraph (G) addresses the appointment of the foreperson, deputy foreperson, and the secretary.
New Rule 556.4 (Objections to Grand Jury and Grand Jurors; Motion to Dismiss)
New Rule 556.4 is taken from former Rule 203. During discussions of these procedures, questions arose about the procedures for challenging the array of the grand jury and whether such challenges have a constitutional basis. Research revealed that the right to challenge the array is a common law right and that some of the challenges, such as those based on race or gender, are constitutional challenges. Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966), cited in the former indicting grand jury rules, and other early Pennsylvania cases that recognize the right to challenge the array appear to still be good law. In view of this research, new Rule 556.4 incorporates procedures for challenging the array.
Paragraph (B) of the rule sets forth the procedures for a motion to dismiss. Consistent with the proposed new procedure with regard to the function of the indictment and the fact that after the grand jury holds the defendant for court, the attorney for the Commonwealth will file an information, the motion to dismiss under this rule is a motion to dismiss the information.
During the post-publication discussions about the proposal, the Committee considered whether the published versions of Rule 556.4(B)(1)(b) and of Rule 556.11(B)(2) that established the burden of proof as ''probable cause'' should be modified to conform with the burden of proof at a preliminary hearing, that is, whether the indicting grand jury must find that the evidence makes out a ''prima facie'' case that an offense has been committed and that the defendant has committed it in the same way that the issuing authority must determine that the evidence at the preliminary hearing makes out a prima facie case. The Committee concluded this provision should be modified. Accordingly, the published versions of Rules 556.4(B)(1)(b) and 556.11(B)(2), now 556.11(A)(2), have been amended to provide that the evidence must make out a prima facie case.
The former indicting grand jury rules provided that the motion to dismiss an indictment should be made as part of the omnibus pretrial motion. The Committee agreed that under the new rules, the motion to dismiss also must be made as part of the omnibus pretrial motion, as must the challenge to the array. Rule 556.4(C) spells out these requirements. The Comment to Rule 578 has been revised to add challenges to the array and motions to dismiss to the list of matters that should be included in the omnibus pretrial motion.
The importance of protecting a defendant's right to habeas corpus proceedings when there has been an indicting grand jury proceeding without a preliminary hearing also was an area of concern. To ensure that the procedures in Rule 556.4 are not read as limiting this right, the Rule 556.4 Comment includes a cautionary provision explaining that ''nothing in the rule limits the availability of habeas corpus proceedings as provided by law.'' During the post-publication review, the Committee considered whether anything more should be said concerning habeas corpus proceedings in view of the publication responses. The consensus was that the Comment language is sufficient and no changes to the rule are necessary.
A last point with reference to challenges to the array and motions to dismiss relates to the defendant's access to information concerning the indicting grand jury prior to the grand jury proceedings. Providing for these challenges and motions in the rules does not give the defendant a right to participate in the process prior to an indictment, see, e.g., Commonwealth v. Dessus, supra. In recognition of the special nature of these indicting grand juries because of witness intimidation and the fact that indicting grand juries have not been in existence in Pennsylvania for over 18 years, the Comment provides clarification by explaining ''nothing in this rule is intended to require notice to 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.''
New Rule 556.5 (Duration of Indicting Grand Jury)
New Rule 556.5 is consistent with 42 Pa.C.S. § 4546 (Term of Investigating Grand Jury) except that the rule leaves the duration to the discretion of the judge. The Committee agreed, however, that the judge's discretion should not be unlimited and has incorporated into the rule the outside limit of 18 months.
Although the indicting grand jury proceedings under these new rules ordinarily will be relatively brief, and, therefore, it might not be necessary to provide for an extension mechanism, because the goal is to have the new procedures for the indicting grand jury be the same as the procedures for the investigating grand jury, Rule 556.5 includes, as much as possible, the same detailed procedures for the extension of and early termination of the grand jury that are applicable in investigating grand jury proceedings.
New Rules 556.6 (Administering Oath to Grand Jury and Foreperson) and 556.7 (Administration of Oath to Witnesses; Court Personnel)
The provisions in new Rules 556.6 and 556.7 are taken from former Rules 206 and 207 and current Rules 223, 224, 225, and 227. The supervising judge is required to administer the oath to the foreperson, the deputy foreperson, and the other grand jurors. This provision also includes the text of the oaths that is required to be administered and is the same as in the former rules. The oaths to the witnesses and court personnel are to be administered by the foreperson, or deputy foreperson.
New Rule 556.8 (Recording of Testimony Before Indicting Grand Jury)
New Rule 556.8 provides for the recording of the grand jury proceedings other than deliberations and voting and is taken from Rules 228 and 229.
The rescinded indicting grand jury rules prohibited the recording of the proceedings. The Committee discussed this prohibition and agreed the new rules should follow the recording procedures in the investigating grand jury rules, as well as, the recording procedures in a number of states. The recording of the grand jury proceedings ensures there is a record should there be a need to review the grand jury proceedings.
Although it was suggested that the attorney for the Commonwealth should retain control of the recording device and transcript, the Committee believes it makes more sense if the supervising judge maintains control of the recordings and the transcript, as well as, of any physical evidence introduced during the proceedings. The members who regularly work with investigating grand juries indicated that this is consistent with the practice for investigating grand juries and that it is not an imposition on the supervising judge.
During the post-publication discussions, the Committee reconsidered the provision in the published version of the rule that provides for the destruction of the transcript, except for good cause, if no indictment is returned. Several members pointed out that an indictment may not be returned for multiple reasons and the parties still may need access to the transcripts when no indictment is returned for purposes other than proceeding in the case, such as receiving Brady material that was presented to the grand jury. Furthermore, there are other procedures in place with reference to preserving the transcripts of investigating grand juries that the members believe would apply to the indicting grand jury. In view of these considerations, the published version of Rule 556.8 has been modified by deleting paragraph (D).
New Rule 556.9 (Who May be Present During Sessions of Indicting Grand Jury)
New Rule 556.9 is taken from Rule 231. During consideration of the provisions of Rule 231, whether a witness may disclose his or her testimony was discussed in view of the provisions of 42 Pa.C.S. § 4549(d), which permit a witness to disclose his or her grand jury testimony. The Committee, when drafting this proposed rule, believed the witnesses should not be permitted to disclose their testimony because any case before the indicting grand jury under these new rules involves witness intimidation and permitting a witness to disclose his or her testimony could be dangerous for the witness or others.
The Committee reconsidered this decision during the post-publication review. Several members opined that the witness has a First Amendment right to reveal his or her testimony. Other members thought, because these cases involve witness intimidation, the Commonwealth's interest in protecting these witnesses outweighs the witness' First Amendment claim. Ultimately, it was agreed to delete the prohibition on the witness from revealing his or her testimony from the proposed rules, thus bringing the new indicting grand jury procedures in line with the procedures for witness testimony before the investigating grand jury. Because there may be legitimate reasons why a witness should not reveal his or her testimony after appearing before the grand jury, the new rule includes a provision for the attorney for the Commonwealth to seek an order from the judge that the interests of justice dictate that the witness not reveal his or her testimony.
In addition, the attorney for the Commonwealth may request that the judge delay disclosure of a grand jury witness's testimony but the disclosure may not be later than the conclusion of the direct testimony of the witness at trial.
Although the prohibition on witnesses revealing their testimony had been addressed in the published version of Rule 556.9, the modifications are set forth in proposed Rule 556.10(B)(3) because this rule specifically addresses disclosures.
The Committee also considered the procedures in other jurisdictions for permitting witnesses to testify using two-way simultaneous audio-visual communication. Although the Committee does not believe the rules should mandate this procedure, it agreed there would be no reason not to permit such testimony with the approval of the supervising judge. A paragraph explaining this is included in the Comment.
New Rule 556.10 (Secrecy; Disclosure)
New Rule 556.10 is taken from Rule 230 and provides the procedures for maintaining the secrecy of the grand jury proceedings, paragraph (A), and for disclosure, paragraph (B).
Paragraph (A) requires that all evidence is subject to grand jury secrecy and any violation may be subject to contempt.
The published version of paragraph (B)(2)(b) restricted the defendant's pretrial discovery in cases indicted by a grand jury until 30 days before the commencement of trial. This restricted discovery provision generated several publication responses. The respondents and some of the members expressed concern that the limitation is too broad and would be applied to all discoverable materials in the case when the limitation only should apply to the identities and testimony of the grand jury witnesses who are subject to witness intimidation. Other respondents and a few members argued that having any limitations in the grand jury rules is unnecessary because Rule 573 (Pretrial Discovery and Inspection) has adequate safeguards for the judge to utilize when it is necessary to protect a witness, including, for example, the protective order. See Rule 573(F). They also pointed out that any 30-day limitation will lead to continuances that will delay the proceedings.
The Committee considered several approaches to address these concerns, and concluded that it would be less cumbersome and fairer if the rule provided that most things would be discoverable under Rule 573. The only exception would be evidence that would reveal the identity of the witnesses who are the subject of witness intimidation. Accordingly, the new rule provides that pretrial discovery is subject to Rule 573 and that ''pretrial discovery'' does not include ''testimony or other evidence that would disclose the identity of any witness or victim who has been intimidate, is being intimidated, or who is likely to be intimidated.'' The timing and manner of discovery of this testimony or evidence is left to the discretion of the supervising judge.
To accommodate these changes, new Rule 556.10(B) has been reorganized from the published version. The paragraph begins with the general premise that no person may disclose any matter occurring before the grand jury. The paragraph then provides for specific exceptions to this general premise.
Paragraph (B)(1) provides that the supervising judge must provide the attorney for the Commonwealth with a copy of the transcript of the grand jury proceeding for the attorney's official duties.
Paragraph (B)(2) addresses disclosure to a defendant in a criminal case. The Committee, during the initial development of the proposed new rules, discussed whether a defendant may testify before the indicting grand jury, noting that Rule 230(B)(1) suggests that the defendant may testify before the investigating grand jury, and that other jurisdictions provide for the defendant's testimony. The Committee agreed the rules should not address this issue, but reasoned that leaving the rule silent does not prevent a defendant from asking to testify. Because of concerns that omitting the language from Rule 556.10 might be construed as prohibiting the defendant's right to the transcript, and that could create due process issues, language comparable to Rule 230(B)(1) is incorporated in Rule 556.10(B)(2) thereby ensuring that any defendant who is permitted to testify before the indicting grand jury is entitled to a copy of the transcript of his or her testimony.
Paragraph (B)(3)(a) sets forth the provisions concerning a witness's disclosing his or her testimony that are discussed above in the explanation of proposed new Rule 556.9. Although the new rule permits a witness to disclose his or her testimony, there may be circumstances when the attorney for the Commonwealth would want this disclosure delayed, such as when it is necessary to protect other witnesses. The new rule requires that the supervising judge is to make the determination whether there are compelling reasons when disclosure of the witness's testimony should be delayed. Finally, recognizing that the defendant has the right to this information for his or her defense, the new rule also requires that the transcript of a witness's testimony be furnished to the defendant no later than after the direct testimony of the witness at trial. Paragraph (B)(3)(b) sets forth this limitation on the witness's disclosure.
Paragraph (B)(4) sets forth the procedures for the disclosure of grand jury material or matters, other than deliberations and votes, to law enforcement personnel. This language is comparable to the disclosure provisions for investigating grand juries in Rule 230(C) and 42 Pa.C.S. § 4549(b).
New Rule 556.11 (Proceedings When Case Presented to Grand Jury)
The published version of proposed new Rule 556.11(A) sets forth the requirements that, when a case is to be submitted to an indicting grand jury, the case would remain open in the magisterial district court until the grand jury acts to either indict the defendant (holds the case for court), or declines to indict, and that the issuing authority cancel the preliminary hearing and conduct status hearings every 30 days until the grand jury acts. As explained above in the discussion about new Rule 556.2, several of the publication respondents suggested that this proposed procedure was too complicated and confusing because there would be case files open in the issuing authority's office and the office of the clerk of courts on the same case at the same time, and placed unnecessary burdens and expenses on the issuing authority's office and the parties. In view of these concerns, the Committee agreed to delete these published provisions in Rule 556.11(A).
New paragraph (A), paragraph (B) in the published version, sets forth the scope of the indicting grand jury's authority to act. As mentioned above in the discussion of new Rule 556.4, as part of post-publication modifications, paragraph (A)(2) has been modified to require that the indicting grand jury must make a finding that the evidence establishes a prima facie case before it may indict the defendant. This modification was necessary because the function of the indicting grand jury under the new procedures is the same as the function of the preliminary hearing, see Rule 543, and it is imperative that the same burden applies to both.
Paragraph (B) addresses the voting requirements for the grand jury. In order to indict, there must be an affirmative vote of at least 12 jurors.
Paragraph (C) sets forth the requirements when the grand jury votes to indict. The indictment is prepared and must set forth the offenses on which the grand jury voted to indict. The indictment is to be signed by the foreperson or deputy foreperson and returned to the supervising judge.
Under the former indicting grand jury procedures, after a defendant was held for court following a preliminary hearing, the attorney for the Commonwealth would prepare a bill of indictment and submit that to the indicting grand jury. If the indicting grand jury, after considering the bill of indictment, voted to indict, the attorney for the Commonwealth would prepare the indictment and file it in the court of common pleas and the case would proceed to an arraignment. Because the new indicting grand jury procedures will be in lieu of the preliminary hearing, a change in the function of the grand jury's indictment has been incorporated into the new procedures to simplify the post-indictment procedures, to keep these procedures more in line with the post-preliminary hearing procedures, and to eliminate the need to completely reorganize the rules governing the procedures after a case is held for court that would have been necessary to accommodate the cases proceeding by indictment.
This new procedure changes the function of the grand jury's indictment from the charging document that was comparable to an information to a notice-type document that sets forth the charges held for court by the grand jury and authorizes the attorney for the Commonwealth to file an information. Thereafter, the attorney for the Commonwealth would proceed in the same manner as he or she would proceed after a case is held for court following a preliminary hearing. To accommodate this new procedure, paragraph (D)(1) requires the supervising judge, upon receipt of the indictment, to provide a copy of the indictment to the attorney for the Commonwealth authorizing him or her to prepare an information pursuant to Rule 560.
The Comment includes an explanation that the grand jury's vote to indict is the functional equivalent of holding the defendant for court following a preliminary hearing. The Comment also explains that the indictment 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. This change in the function of the indictment is further clarified in the amendment to the Rule 103 definition of ''indictment'' discussed below.
Paragraph (D)(2) requires the supervising judge to forward a copy of the indictment to the clerk of courts, or to issue an arrest warrant if the subject of the indictment has not be arrested on the charges contained in the indictment. The arrest provision was included because, although infrequent, there are times when the indicting grand jury hears evidence that reveals there is another individual who has not been charged but who is involved in the criminal activity that is the subject of the indicting grand jury. The Committee majority agreed the rule should provide a procedure to address this situation so the case would not ''fall through the cracks.''
Paragraph (E) requires the supervising judge to order the indictment sealed in cases in which the attorney for the Commonwealth so requests. Because the indicting grand jury only will be convened to hear cases in which the witness is being, has been, or is likely to be intimidated, at the time an indictment is to be filed, there still may be justification to maintain the secrecy of the information that was before the grand jury.
If the grand jury declines to indict, as provided in paragraph (F), the supervising judge must dismiss the complaint and notify the clerk of courts of the dismissal. As with a dismissal after a preliminary hearing, the attorney for the Commonwealth may re-file the case pursuant to Rule 544.
As explained in the discussion of new Rule 556.1, there should not be an overlap of functions of the two grand juries when the members of an investigating grand jury sit as an indicting grand jury. However, the Committee recognized that there may be situations after an investigating grand jury has issued a presentment when the attorney for the Commonwealth determines the crime charged in the presentment is one in which there is witness intimidation and submits the case to the indicting grand jury that, in this scenario, is the same body as the investigating grand jury. In this situation, it makes sense to permit the incorporation of the evidence initially presented to the investigating grand jury during the investigation for the grand jury's consideration when it is sitting as the indicting grand jury. The Comment explains that the rule does not prevent the investigating grand jury when sitting as an indicting grand jury from considering the evidence already presented to it.
New Rule 556.12. (Waiver of Grand Jury Action)
New Rule 556.12 sets forth the procedures for the waiver of the grand jury proceedings. The procedures are comparable to the procedures for waiving the preliminary hearing but, as explained above in the discussion of new Rule 556.2(C), require the consent of the attorney for the Commonwealth. In addition, the supervising judge has to approve the waiver.
Rule 541 (Waiver of Preliminary Hearing) recently was amended to provide, if the defendant waives the preliminary hearing and consents to be bound over to court, that the defendant thereafter is precluded from raising the sufficiency of the Commonwealth's prima facie case.8 The changes to Rule 541 also provide that, if the defendant waives the preliminary hearing by way of an agreement, and if the agreement is not accomplished, the defendant may challenge the sufficiency of the Commonwealth's prima facie case. The same provisions have been added to Rule 556.12.
Conforming Changes to Rules 103, 540, 542, 544, 547, 560, 573, 578, 582, 646, 648, 903, and 1003
A number of conforming changes to Rules 103, 540, 542, 544, 547, 560, 573, 578, 582, 646, 648, and 1003 have been made. Except for the changes described below, the conforming changes merely add references to the new indicting grand jury procedures to the Comments of the rules.
Rule 103 has been amended to change the definition of ''indictment'' from ''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'' to ''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.'' This change in the definition conforms the definition with the provision in the new rules that when an indicting grand jury votes to indict the defendant, the attorney for the Commonwealth proceeds by filing an information as set forth in the rules. The definition of ''information'' also has been amended to make it clear that an information is presented to the court by the attorney for the Commonwealth when the defendant is held for court or waives the preliminary hearing or a grand jury proceeding. The Rule 103 Comment further clarifies the new function of the ''indictment'' under the indicting grand jury rules.
Rule 540(F) includes, as an exception to when an issuing authority would set the date for the preliminary hearing, the situation when the attorney for the Commonwealth is presenting the case to an indicting grand jury. Paragraph (F)(3) has been amended to extend the time for conducting the preliminary hearing from 3 to 10 days after the preliminary arraignment to 14 to 21 days after the preliminary arraignment to accommodate the timing for proceeding to an indicting grand jury depending on whether or not the defendant is in custody.
Rule 544(A) has been amended by the addition to the types of cases that the attorney for the Commonwealth may re-file under Rule 544 those case in which the indicting grand jury declines to indict a defendant. The new language makes it clear that the reason the Commonwealth may re-file the charges in these cases is that, when a grand jury declines to indict, the complaint is dismissed.
The published version of Rule 547(A) proposed changes that were consistent with the proposed changes that would have required the case to remain open in the magisterial district court. To conform this rule with the post-publication changes to Rules 556.2 and 556.11 that require the issuing authority to close the case when he or she receives notice that the case will be submitted to the grand jury, paragraph (A) has been amended to require the issuing authority to prepare a transcript after closing the case that is being submitted to the grand jury. Similarly, paragraph (B) has been amended to require the issuing authority to transmit the transcript in the same circumstances. Finally, paragraph (C) has been amended by the addition of a new paragraph (7) that requires a copy of the notice that the case will be presented to the indicting grand jury to be forwarded with the transcript.
Rule 560(A) has been amended by adding the issuance of an indictment to when an information is to be prepared by the attorney for the Commonwealth.
The Rule 578 Comment has been amended to add ''or dismiss'' in paragraph (5) to make it clear that a motion to dismiss an information is to be included in the omnibus pretrial motion and to add a new paragraph (10) providing that a challenge to the array of an indicting grand jury ordinarily would be made as part of the omnibus pretrial motion.
The current Comments to Rules 582, 646, 648, and 903 include an explanation about the retention of the reference to ''indictment'' in the rules after the 1993 rescission of the indicting grand juries. With the addition of the new indicting grand jury rules, the Comments to Rules 582, 648, and 903 have been revised to make it clear that these references to ''indictment'' do not apply in the context of an indictment issued by an indicting grand jury convened pursuant to the new rules. This Comment in current Rule 646 has been deleted as no longer necessary.
The amendment to Rule 646(C)(3) adding ''indictment'' is a corrective amendment referring to indictments under the former indicting grand jury rules.
Rule 1003(D)(3)(d)(iii) has been amended by adding an ''unless'' clause comparable to the ''unless'' clause in Rule 540(F), and explains that the Municipal Court judge must inform the defendant of the preliminary hearing unless the preliminary hearing is waived or the case is being presented to an indicting grand jury.
[Pa.B. Doc. No. 12-1255. Filed for public inspection July 6, 2012, 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 Nancy Phillips, et al., ''Witnesses Fear Reprisals, and Cases Crumble—Intimidation On The Streets Is Changing the Way Trials Are Run.'' Philadelphia Inquirer, Dec. 14, 2009.
3 Act 238 of 1974. The Act, which initially was in Title 17, sections 271—276, was repealed in 1978 as part of the Judiciary Act Repealer Act and replaced and amended by 42 Pa.C.S. § 8931.
4 See 30 Pa.B. 1478 (March 18, 2000).
5 This will necessitate re-naming current Parts E and F.
6 See e.g., Nevada Revised Statutes § 172.175. (Matters into which grand jury shall and may inquire), New Jersey Rule 3:6-9. (Finding and Return of Presentment), and Virginia Code § 19.2-191. (Functions of a grand jury).
7 This reasoning also applies to the inclusion of the procedures from the investigating grand jury rules in new Rules 556.3, 556.5, 556.6, 556.7, 556.8, 556.9, and 556.10.
8 See 42 Pa.B. 2465 (May 12, 2012).
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