THE COURTS
Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CHS. 2—6 AND 9 ]
Order Amending Rules 230, 528 and 584 and Revising the Comments to Rules 316, 456, 502, 515, 569, 576, 602, 634, 649 and 905 of the Rules of Criminal Procedure; No. 417 Criminal Procedural Rules Doc.
[42 Pa.B. 6247]
[Saturday, October 6, 2012]
Order Per Curiam
And Now, this 21st day of September, 2012, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3) in the interests of justice and efficient administration, 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) Pennsylvania Rules of Criminal Procedure 230, 528, and 584 are amended; and
(2) the revisions of the Comments to Pennsylvania Rules of Criminal Procedure 316, 456, 502, 515, 569, 576, 602, 634, 649, and 905 are approved, all in the following form. This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective November 1, 2012.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 2. INVESTIGATIONS
PART B(1). Investigating Grand Juries Rule 230. Disclosure of Testimony Before Investigating Grand Jury.
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(B) Defendant in a Criminal Case:
(1) When a defendant [is] in a criminal case has testified before an investigating grand jury concerning the subject matter of the charges against him or her, upon application of such defendant the court shall order that the defendant be furnished with a copy of the transcript of such testimony.
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Official Note: Rule 263 adopted June 26, 1978, effective January 9, 1979; renumbered Rule 230 and amended March 1, 2000, effective April 1, 2001; amended September 21, 2012, effective November 1, 2012.
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 September 21, 2012 correction of a typographical error in paragraph (B)(1) published with the Court's Order at 42 Pa.B. 6251 (October 6, 2012).
CHAPTER 3. ACCELERATED REHABILITATIVE DISPOSITION (ARD)
PART B. Court Cases Rule 316. Conditions of the Program.
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Comment * * * * *
A defendant may be required to accept conditions of the program as provided by statute. See, e.g., 75 Pa.C.S. § [3731(e)(6)] 3807 (Accelerated Rehabilitation Disposition).
Official Note: Rule 182 approved May 24, 1972, effective immediately; amended January 28, 1983, effective February 1, 1983; Comment revised April 10, 1989, effective July 1, 1989; Comment revised September 26, 1996, effective immediately; renumbered Rule 316 and amended March 1, 2000, effective April 1, 2001; Comment revised September 21, 2012, effective November 1, 2012.
Committee Explanatory Reports:
Report explaining the September 26, 1996 Comment revision published with the Court's Order at 26 Pa.B. 4894 (October 12, 1996).
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 September 21, 2012 correction of the reference to the Vehicle Code in the last paragraph of the Comment published with the Court's Order at 42 Pa.B. 6251 (October 6, 2012).
CHAPTER 4. PROCEDURES IN SUMMARY CASES
PART E. General Procedures in Summary Cases Rule 456. Default Procedures: Restitution, Fines, and Costs.
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Comment * * * * *
When a defendant defaults on a payment of restitution, fines, or costs, paragraph (B) requires the issuing authority to notify the defendant of the default, and to provide the defendant with an opportunity to pay the amount due or appear within 10 days to explain why the defendant should not be imprisoned for nonpayment. Notice by first class mail is considered complete upon mailing to the defendant's last known address. See Rule [430(D)] 430(B)(4).
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Official Note: Adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986; January 1, 1986 effective dates extended to July 1, 1986; Comment revised February 1, 1989, effective July 1, 1989; rescinded October 1, 1997, effective October 1, 1998. New Rule 85 adopted October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999; renumbered Rule 456 and amended March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; amended March 3, 2004, effective July 1, 2004; Comment revised April 1, 2005, effective October 1, 2005; Comment revised September 21, 2012, effective November 1, 2012.
Committee Explanatory Reports:
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Final Report explaining the September 21, 2012 Comment revision correcting the typographical error in the fourth paragraph published with the Court's Order at 42 Pa.B. 6251 (October 6, 2012).
CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES
PART B. Instituting Proceedings Rule 502. Instituting Proceedings in Court Cases.
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Comment * * * * *
If the defendant is held for court, the attorney for the Commonwealth submits an information to the court (see Rule [225] 560). See Section 8931(d) of the Judicial Code, 42 Pa.C.S. § 8931(d).
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Official Note: Original Rule 102(1), (2), and (3), adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 102 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 101, and made applicable to court cases only, September 18, 1973, effective January 1, 1974; Comment revised February 15, 1974, effective immediately; amended June 30, 1975, effective September 1, 1975; Comment amended January 4, 1979, effective January 9, 1979; paragraph (1) amended October 22, 1981, effective January 1, 1982; Comment revised July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; Comment revised January 31, 1991, effective July 1, 1991; Comment revised August 12, 1993, effective September 1, 1993; amended August 9, 1994, effective January 1, 1995; Comment revised January 16, 1996, effective immediately; renumbered Rule 502 and amended March 1, 2000, effective April 1, 2001; amended March 9, 2006, effective September 1, 2006; Comment revised September 21, 2012, effective November 1, 2012.
Committee Explanatory Reports:
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Final Report explaining the September 21, 2012 revising the second paragraph of the Comment to correct a typographical error published with the Court's Order at 42 Pa.B. 6251 (October 6, 2012).
PART B(3). Arrest Procedures in Court Cases
(a) Arrest Warrants Rule 515. Execution of Arrest Warrant.
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Comment * * * * *
Paragraph (C) abolishes the traditional practice known as ''NEI'' or ''[no] non est inventus'' as being no longer necessary.
Official Note: Formerly Rule 124, adopted January 28, 1983, effective July 1, 1983; amended July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; renumbered Rule 122 and Comment revised August 9, 1994, effective January 1, 1995; renumbered Rule 515 and amended March 1, 2000, effective April 1, 2001; Comment revised May 10, 2002, effective September 1, 2002; amended February 12, 2010, effective April 1, 2010; Comment revised July 31, 2012, effective November 1, 2012; Comment revised September 21, 2012, effective immediately.
Committee Explanatory Reports:
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Final Report explaining the September 21, 2012 revising the last paragraph of the Comment by correcting a typographical error published with the Court's Order at 42 Pa.B. 6251 (October 6, 2012).
PART C(1). Release Procedures Rule 528. Monetary Condition of Release [of] on Bail.
(A) If the bail authority determines that it is necessary to impose a monetary condition of bail, to determine the amount of the monetary condition, the bail authority shall consider:
(1) the release criteria set forth in Rule [4002] 523; and
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Official Note: Former Rule 4007 adopted July 23, 1973, effective 60 days hence, replacing prior Rule 4013; amended January 28, 1983, effective July 1, 1983; rescinded September 13, 1995, effective January 1, 1996, and replaced by Rule [531] 4011. Present Rule 4007 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 528 and amended March 1, 2000, effective April 1, 2001; amended September 21, 2012, effective November 1, 2012.
Committee Explanatory Reports:
Final Report explaining the provisions of the new rule published with Court's Order at 25 Pa.B. 4116 (September 30, 1995).
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 September 21, 2012 amendment correcting a typographical error in paragraph (A)(1) published with the Court's Order at 42 Pa.B. 6251 (October 6, 2012).
PART G. Procedures Following Filing of Information Rule 569. Examination of Defendant by Mental Health Expert.
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Comment * * * * *
Examination of Defendant
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The court is required in paragraph (A)(2)(b) to inform the defendant, in person on the record, about the request for a compelled examination. See Rule [118] 119 (Use of Two-Way Simultaneous Audio-Video Communication in Criminal Proceedings). The court is to explain that the examination is being conducted at the request of the attorney for the Commonwealth and that the purpose of the examination is to obtain information about defendant's mental condition. In addition, the court should explain the procedures for the examination that are included in the court's order as set forth in paragraph (A)(2)(b), and explain the potential consequences of the defendant's failure to cooperate with the examination.
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Official Note: Adopted January 27, 2006, effective August 1, 2006; Comment revised September 21, 2012, effective November 1, 2012.
Committee Explanatory Reports:
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Final Report explaining the September 21, 2012 revision of the Comment correcting a typographical error in the eighth paragraph published with the Court's Order at 42 Pa.B. 6251 (October 6, 2012).
PART G(1). Motion Procedures Rule 576. Filing and Service by Parties.
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Comment * * * * *
Although paragraph [(C)(1)(d)] (B)(2)(d) permits the use of assigned mailboxes for service under this rule, the Attorney General's office never may be served by this method.
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Official Note: Former Rule 9022 adopted October 21, 1983, effective January 1, 1984; amended March 22, 1993, effective January 1, 1994; amended July 9, 1996, effective September 1, 1996; renumbered Rule 576 and amended March 1, 2000, effective April 1, 2001. Former Rule 9023 adopted October 21, 1983, effective January 1, 1984; amended June 2, 1994, effective September 1, 1994; renumbered Rule 577 and amended March 1, 2000, effective April 1, 2001; rescinded March 2, 2004, effective July 1, 2004. Rules 576 and 577 combined and amended March 3, 2004, effective July 1, 2004, Comment revised June 4, 2004, effective November 1, 2004; Comment revised September 18, 2008, effective February 1, 2009; Comment revised September 21, 2012, effective November 1, 2012.
Committee Explanatory Reports:
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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 March 3, 2004 changes amending and combining Rule 576 with former Rule 577 published with the Court's Order at 34 Pa.B. 1561 (March 20, 2004).
Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service's return receipt electronic option published with the Court's Order at 38 Pa.B. 5428 (October 4, 2008).
Final Report explaining the September 21, 2012 revision of the Comment correcting a typographical error in the thirteenth paragraph published with the Court's Order at 42 Pa.B. 6251 (October 6, 2012).
Rule 584. Motion for Change of Venue or Change of Venire.
(A) All motions for change of venue or for change of venire shall be made to the court in which the case is currently pending. Venue or venire may be changed by that court when it is determined after hearing that a fair and impartial trial cannot [be] otherwise be had in the county where the case is currently pending.
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Official Note: Rule 313 adopted June 30, 1964, effective January 1, 1965; Comment added June 28, 1976, effective July 1, 1976; renumbered Rule 312, and amended 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 December 11, 1981, effective July 1, 1982; renumbered Rule 584 and amended March 1, 2000, effective April 1, 2001; amended September 21, 2012, effective November 1, 2012.
Committee Explanatory Reports:
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Final Report explaining the September 21, 2012 amendment correcting a typographical error in paragraph (A) published with the Court's Order at 42 Pa.B. 6251 (October 6, 2012).
CHAPTER 6. TRIAL PROCEDURES IN COURT CASES
PART A. General Provisions Rule 602. Presence of the Defendant.
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Comment Nothing in this rule is intended to preclude a defendant from affirmatively waiving the right to be present at any stage of the trial, see e.g., Commonwealth v. Vega, 553 Pa. 255, 719 A.2d 227 ([Pa.] 1998) (plurality) (requirements for a knowing and intelligent waiver of a defendant's presence at trial includes a full, on-the-record colloquy concerning consequences of forfeiture of the defendant's right to be present) or from waiving the right to be present by his or her actions, see e.g., Commonwealth v. Wilson, 551 Pa. 593, 712 A.2d 735 ([Pa.] 1998) (defendant, who fled courthouse after jury was impaneled and after subsequent plea negotiations failed, was deemed to have knowingly and voluntarily waived the right to be present).
Former Rule 1117(c) was moved to Rule 462 (Trial de novo) in 2000 as part of the reorganization of the rules.
Official Note: Rule 1117 adopted January 24, 1968, effective August 1, 1968; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; renumbered Rule 602 and amended March 1, 2000, effective April 1, 2001; amended December 8, 2000, effective January 1, 2001; Comment revised September 21, 2012, effective November 1, 2012.
Committee Explanatory Reports:
[FORMER RULE 1117:]
Final Report explaining the October 28, 1994 amendments published with the Court's Order at 24 Pa.B. 5841 (November 26, 1994).
[FORMER RULE 602:]
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 December 8, 2000 amendments published with the Court's Order at 30 Pa.B. 6546 (December 23, 2000).
Final Report explaining the September 21, 2012 revision to the second paragraph of the Comment correcting a typographical error published with the Court's Order at 42 Pa.B. 6251 (October 6, 2012).
PART C(1). Impaneling Jury Rule 634. Number of Peremptory Challenges.
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Comment This rule governs the number of peremptory challenges for the selection of principal trial jurors. The number of peremptory challenges for the selection of alternate trial jurors is set forth in Rule [645] 633.
Previous Rule 1126 was adopted after the abolition of the Courts of Oyer and Terminer and General Jail Delivery, and served to preserve the number of peremptory challenges established with reference to such courts by the Act of March 6, 1901, P. L. 16, § 1, as amended by Act of July 9, 1901, P. L. 629, § 1. That rule was rescinded in 1977 in view of the Act of October 7, 1976, P. L. 1089, No. 217, §§ 1—2, which repealed the 1901 peremptory challenge statute and established the number of peremptory challenges without reference to the abolished courts.
Present Rule [1126] 634 (then-Rule 1126) was adopted in 1980 after the Act of October 7, 1976, P. L. 1089, No. 217, § 1, and other statutory provisions relating to peremptory challenges (see Act of March 31, 1860, P. L. 427, § 40, as amended by Act of October 7, 1976, P. L. 1055, No. 213, § 1) were repealed by the Judiciary Act Repealer Act, 42 P. S. § 20002(a) (377), (1479) (1979). Although this rule is intended to replace the repealed statutes as to peremptory challenges, the rule retains the number of peremptories that was established by such statutes.
When offenses of different grades are charged in a case, the number of peremptory challenges is intended to be determined by the highest grade of offense charged; cumulation is not intended.
Official Note: Previous Rule 1126 adopted December 24, 1968, effective January 1, 1969; rescinded May 26, 1977, effective July 1, 1977; present Rule 1126 adopted July 1, 1980, effective August 1, 1980; renumbered Rule 634 and amended March 1, 2000, effective April 1, 2001; Comment revised September 21, 2012, effective November 1, 2012.
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 September 21, 2012 revision to the first and third paragraphs of the Comment correcting typographical errors published with the Court's Order at 42 Pa.B. 6251 (October 6, 2012).
PART C(2). Conduct of Jury Trial Rule 649. Sealed Verdict.
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Comment The 1972 amendment deleted the exception of those cases in which a capital crime is charged in view of Furman v. Georgia, 408 U.S. 238 (1972) and its companion cases, and in view of Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 ([Pa.] 1972).
This rule codifies the existing law with respect to sealed verdicts. See Rule [600(A)] 103, Rule 601 and Rule 648(F).
Paragraph (C) follows the Pennsylvania cases, Commonwealth v. Watson, 211 Pa. Superior Ct. 394, 236 A.2d 567 ([Pa. Super.] 1967); Commonwealth v. Lemley, 158 Pa. Superior Ct. 125, 44 A.2d 317 ([Pa. Super.] 1945).
Official Note: Rule 1121 adopted January 24, 1968, effective August 1, 1968; amended November 29, 1972, effective 10 days hence; renumbered Rule 649 and amended March 1, 2000, effective April 1, 2001; Comment revised September 21, 2012, effective November 1, 2012.
Committee Explanatory Reports:
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Final Report explaining the September 21, 2012 revision of the Comment correcting a rule reference in the second paragraph and the case citations published with the Court's Order at 42 Pa.B. 6251 (October 6, 2012).
CHAPTER 9. POST-CONVICTION COLLATERAL PROCEEDINGS Rule 905. Amendment and Withdrawal of Petition for Post-Conviction Collateral Relief.
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Comment ''Defective,'' as used in paragraph (B), is intended to include petitions that are inadequate, insufficient, or irregular for any reason; for example, petitions that lack particularity; petitions that do not comply substantially with Rule [1502] 902; petitions that appear to be patently frivolous; petitions that do not allege facts that would support relief; petitions that raise issues the defendant did not preserve properly or were finally determined at prior proceedings.
When an amended petition is filed pursuant to paragraph (D), it is intended that the clerk of courts transmit a copy of the amended petition to the attorney for the Commonwealth. This transmittal does not require a response unless one is ordered by the judge as provided in these rules. See Rules 903 and 906.
Official Note: Previous Rule 1505 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 Rules [906(B), 908(A)] 1506(b), 1508(a), and present Rule [905(C)] 1505(c). Present Rule 1505 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; renumbered Rule 905 and amended March 1, 2000, effective April 1, 2001; Comment revised September 21, 2012, effective November 1, 2012.
Committee Explanatory Reports:
Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
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 September 21, 2012 revision of the Comment correcting a typographical error in the first paragraph published with the Court's Order at 42 Pa.B. 6251 (October 6, 2012).
FINAL REPORT1
Amendments of Rules of Criminal Procedure 230, 528, and 584, and revision of the Comments to Rules of Criminal Procedure 316, 456, 502, 515, 569, 576, 602, 634, 649 and 905
Technical Corrections On September 21, 2012, effective November 1, 2012, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rules of Criminal Procedure 230, 528, and 584, and approved the revision of the Comments to Rules of Criminal Procedure 316, 456, 502, 515, 569, 576, 602, 634, 649 and 905.
From time to time, the Committee has received communications identifying, and the members have noted, typographical errors in the Criminal Rules. The changes made in this Recommendation correct typographical errors that have come to the Committee's attention since the reorganization and renumbering of the Criminal Rules in 2000, and are not substantive in nature,
(A) The following rules have been amended to correct typographical errors in the text of the rules.
(1) The first sentence of Rule 230(B)(1) is amended by changing ''is'' to ''in;'' and
(2) Rule 584(A) is amended by deleting ''be'' in the third line between ''cannot'' and ''otherwise.''
(B) The Comments to the following rules have been revised to correct typographical errors.
(1) The last paragraph of the Comment to Rule 316 is revised by changing the reference to 75 Pa.C.S. § 3731(e)(6) to 75 Pa.C.S. § 3807 to reflect the change in the relevant statutory provisions when the Vehicle Code was amended in 2003.
(2) The fourth paragraph of the Comment to Rule 456 is revised by changing the reference to ''Rule 430(D)'' to ''Rule 430(B)(4).''
(3) The last paragraph of the Comment to Rule 515 is revised by changing ''no'' to ''non'' in ''non est inventus.''
(4) The eighth paragraph of the Comment to Rule 569 is revised by changing the reference to ''Rule 118'' to ''Rule 119'' to reflect the change in numbering that occurred after Rule 569 was adopted.
(5) The thirteenth paragraph of the Comment to Rule 576 is revised by changing the reference to paragraph ''(C)(1)(d)'' to ''(B)(2)(d).''
(6) The second paragraph of the Rule 602 Comment is revised by changing the reference to ''Rule 642'' to ''Rule 462.''
(C) The following rules have been amended or the Comments revised to correct the references to rule numbers that were changed as part of the reorganization and renumbering of the rules in 2000.
(1) The second paragraph of the Rule 502 Comment is revised to correct the rule reference by replacing ''225'' with ''560.''
(2) Rule 528(A)(1) is amended to correct the rule reference by replacing ''4002'' with ''523.''
(3) The first paragraph of the Rule 634 Comment is revised to correct the rule reference by replacing ''645'' with ''633.'' The third paragraph of the Comment is revised to correct the rule reference by replacing ''1126'' with ''634.''
(4) The second paragraph of the Rule 649 Comment is revised to correct the rule reference by replacing ''600(A)'' with ''103.''
(5) The first paragraph of the Rule 905 Comment is revised to correct the rule reference by replacing ''1502'' with ''902.''
[Pa.B. Doc. No. 12-1937. Filed for public inspection October 5, 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.
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