THE COURTS
Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CHS. 5 AND 6 ]
Order Amending Rule 587 and Revising the Comments to Rules 580 and 605 of the Rules of Criminal Procedure; No. 431 Criminal Procedural Rules Doc.
[43 Pa.B. 3330]
[Saturday, June 22, 2013]
Order Per Curiam
And Now, this 4th day of June, 2013, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 42 Pa.B. 1369 (March 17, 2012), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 967), 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 the amendments to Pennsylvania Rule of Criminal Procedure 587 are adopted and the revisions to the Comments to Pennsylvania Rules of Criminal Procedure 580 and 605 are approved in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective July 4, 2013.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES
PART G(1). Motion Procedures Rule 580. Disposition of Pretrial Motions.
Unless otherwise provided in these rules, all pretrial motions shall be determined before trial. Trial shall be postponed by the court for the determination of pretrial motions, if necessary.
Comment See Rule 587(B) for the procedures for motions to dismiss on double jeopardy grounds.
Official Note: Rule 309 adopted June 30, 1964, effective January 1, 1965; renumbered Rule 310 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; renumbered Rule 580 March 1, 2000, effective April 1, 2001; Comment revised June 4, 2013, effective July 4, 2013.
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 4, 2013 revision of the Comment adding a citation to Rule 587 concerning motions to dismiss on double jeopardy grounds published with the Court's Order at 43 Pa.B. 3331 (June 22, 2013).
Rule 587. Motion for Dismissal.
(A) Untimely Filing of Information.
(1) Upon motion and a showing that an information has not been filed within a reasonable time, the court may order dismissal of the prosecution, or in lieu thereof, make such other order as shall be appropriate in the interests of justice.
[(B)] (2) The attorney for the Commonwealth shall be afforded an opportunity to respond.
(B) Double Jeopardy.
(1) A motion to dismiss on double jeopardy grounds shall state specifically and with particularity the basis for the claim of double jeopardy and the facts that support the claim.
(2) A hearing on the motion shall be scheduled in accordance with Rule 577 (Procedures Following Filing of Motion). The hearing shall be conducted on the record in open court.
(3) At the conclusion of the hearing, the judge shall enter on the record a statement of findings of fact and conclusions of law and shall issue an order granting or denying the motion.
(4) In a case in which the judge denies the motion, the findings of fact shall include a specific finding as to frivolousness.
(5) If the judge makes a finding that the motion is frivolous, the judge shall advise the defendant on the record that a defendant has a right to file a petition for review of that determination pursuant to Rule of Appellate Procedure 1573 within 30 days of the order denying the motion.
(6) If the judge denies the motion but does not find it frivolous, the judge shall advise the defendant on the record that the denial is immediately appealable as a collateral order.
Comment Cf. Pa.R.J.A. 1901 concerning termination of inactive cases.
[See Rule 575 for the procedures governing motions and answers.]
A motion filed pursuant to this rule must comply with the provisions of Rule 575 (Motions and Answers) and Rule 576 (Filing and Service by Parties).
In any case in which a summary offense is joined with a misdemeanor, felony, or murder charge, and therefore is part of the court case, a dismissal of the prosecution pursuant to paragraph [(A)] (A)(1) would include the dismissal of the summary offense. See the Comment to Rule 502 (Instituting Proceedings in Court Cases).
''Hearing,'' as used in paragraph (B)(2) includes the taking of testimony, or the hearing of argument, or both. See Rule 115 for the procedures for the recording and transcribing of the hearing.
Paragraph (B)(4) requires the judge to make a specific finding whether the motion is being dismissed as frivolous. The judge should expressly cite on-point controlling case law that would make the claim frivolous. See, e.g., Commonwealth v. Gains, 383 Pa.Super. 208, 217, 556 A.2d 870, 874 (1989) (''A frivolous claim is a claim clearly and palpably without merit; it is a claim which presents no debatable question.''). A mere adverse decision of the case does not mean the matter is frivolous.
Although the judge is required to advise the defendant of his or her appellate rights in paragraphs (B)(5) and (B)(6) upon dismissing the motion, nothing in this rule is intended to preclude the defendant from proceeding to trial without first appealing the double jeopardy question. See, e.g., Commonwealth v. Lee, 490 Pa. 346, 350, 416 A.2d 503, 504 (1980) (''Unquestionably, appellant could have sought immediate appellate review of the question involved. For whatever reason, however, appellant proceeded to trial without first appealing the double jeopardy question. We believe that a defendant may choose to proceed to trial and if convicted, still challenge the propriety of the pretrial motion to dismiss on double jeopardy grounds on appeal.'' (citations omitted)).
For the procedures for challenging the denial of the motion to dismiss on double jeopardy grounds when the judge makes a finding that the motion is frivolous, see Rule of Appellate Procedure 1573.
Pursuant to Rule of Appellate Procedure 1701(d), the filing of a petition for review does not affect the judge's power to proceed further in the case while the petition for review is pending.
Official Note: Rule 316 adopted June 30, 1964, effective January 1, 1965; amended June 8, 1973, effective July 1, 1973; amended February 15, 1974, effective immediately; renumbered Rule 315 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; Comment revised January 28, 1983, effective July 1, 1983; amended August 12, 1993, effective September 1, 1993; renumbered Rule 587 and amended March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004; Comment revised March 9, 2006, effective September 1, 2006; amended June 4, 2013, effective July 4, 2013.
Committee Explanatory Reports:
* * * * * Final Report explaining the June 4, 2013 provisions of the new paragraph (B) concerning motions to dismiss on double jeopardy grounds published with the Court's Order at 43 Pa.B. 3331 (June 22, 2013).
CHAPTER 6. TRIAL PROCEDURES IN COURT CASES
PART A. General Provisions Rule 605. Mistrial.
* * * * *
Comment This rule replaces the practice of moving for the withdrawal of a juror.
Examples of ''manifest necessity'' can be found in Commonwealth v. Stewart, 456 Pa. 447, 317 A.2d 616 ([Pa.] 1974); Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 ([Pa.] 1973); United States ex rel. Russo v. Superior Court of New Jersey, Law Division, Passaic County, 483 F.2d 7 (3rd Cir. 1973), cert. denied, 414 U.S. 1023 (1973); United States v. Tinney, 473 F.2d 1085 (3rd Cir. 1973), cert. denied, 412 U.S. 928 (1973); United States v. Jorn, 440 U.S. 470 (1971); and United States v. Perez, 9 Wheat. 579 (1824); see also Illinois v. Somerville, 410 U.S. 458 (1973).
See Rule 587(B) for the procedures when a motion to dismiss on double jeopardy grounds is filed.
Official Note: Rule 1118 adopted January 24, 1968, effective August 1, 1968; amended June 28, 1974, effective September 1, 1974; renumbered Rule 605 and amended March 1, 2000, effective April 1, 2001; Comment revised June 4, 2013, effective July 4, 2013.
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 4, 2013 revision of the Comment adding a citation to Rule 587 concerning motions to dismiss on double jeopardy grounds published with the Court's Order at 43 Pa.B. 3331 (June 22, 2013).
FINAL REPORT1
Amendments to Pa.R.Crim.P. 587 and Revisions to the Comments to Pa.Rs.Crim.P. 580 and 605
Motion to Dismiss Based on Double Jeopardy Grounds On June 4, 2013, effective July 4, 2013, upon the joint recommendation of the Criminal Procedural Rules Committee (''Criminal Committee'') and the Appellate Court Procedural Rules Committee (''Appellate Committee''), the Court adopted the amendment of Rule of Criminal Procedure 587 and correlative revisions to the Comments to Rules of Criminal Procedure 580 and 605. The rule changes clarify the procedures when a defendant files a motion to dismiss based on double jeopardy grounds. The Court also adopted new Rule of Appellate Court Procedure 1573 and correlative changes to Rules of Appellate Procedure 313 and 1516 to clarify the appeal procedures when a defendant's motion to dismiss based on double jeopardy has been denied. These changes were developed in response to the Court's directive in Commonwealth v. Orie, 610 Pa. 552, 22 A.3d 1021 (2011).
I. Background
In Commonwealth v. Orie, 610 Pa 552, 22 A.3d 1021 (2011), the Court clarified the appropriate procedures for an appellate court to follow when a trial court dismisses a defendant's pre-trial double jeopardy challenge as frivolous. The Court asked the Appellate Court Procedural Rules Committee and the Criminal Procedural Rules Committee to evaluate the Court's proposed procedural framework for possible further refinement.
The two Committees established a joint subcommittee to study the issue. During the subcommittees' discussions of the Orie case and the Court's directive, the members noted that there is no uniformity in how motions to dismiss on double jeopardy grounds currently are handled at the trial level. They reasoned that this lack of uniformity contributes to the confusion that the Court was addressing in Orie. The subcommittees accordingly recommended, to which the Committees agreed, that it would be helpful to the bench and bar if the Criminal Rules were amended to specify the procedures to be followed in the court of common pleas when a defendant files a motion to dismiss based on double jeopardy grounds.
II. Discussion of the Criminal Rule Changes
The amendments are designed to incorporate into the procedures governing motions to dismiss on double jeopardy grounds the factors the Committees considered most important. These are: (1) protecting a defendant's rights, (2) creating a record at the trial level for purposes of appeal and preserving all parties' positions, and (3) ensuring the defendant understands his or her appeal rights.
The new procedures embodying these factors have been added to Rule 587 (Motion for Dismissal) as new paragraph (B). Paragraph (B)(1) requires that the motion state specifically and with particularity the basis for the claim of double jeopardy and the facts supporting the claim. This requirement is comparable to the motion requirements in Rule 575(A)(2)(c).
Paragraph (B)(2) requires that there be a hearing conducted in open court. A hearing on the record is vital to preserve the parties' positions for appeal purposes. As elaborated in the Comment, the ''hearing'' in this context may include (1) taking testimony, (2) taking testimony and presenting arguments, or (3) merely presenting arguments as the judge determines necessary in a given case.
Paragraph (B)(3) requires that the judge enter on the record findings of fact and conclusions of law at the conclusion of the hearing and issue an order granting or denying the motion. Paragraph (B)(4) adds the requirement from Orie and prior cases that if the judge denies the motion, the judge also must make specific findings as to frivolousness. The members of the Criminal Committee noted, anecdotally, that frequently judges will deny the motion to dismiss on double jeopardy grounds without making a finding with regard to frivolousness unless or until a defendant challenges the denial of the motion, and that some judges do not explain the basis for finding the motion frivolous. Recognizing that these practices are a source of confusion and that they cause problems for defendants and appellate courts when such motions are denied, the amendments require the trial judge to make a specific finding as to frivolousness at the time the judge decides the double jeopardy motion, and further require a trial judge to make a contemporaneous record of the judge's reasons for his or her findings. Furthermore, the Rule 587 Comment has been revised to include a cross-reference to Commonwealth v. Gains, 383 Pa. Super. 208, 217, 556 A.2d 870, 874 (1989), to provide guidance about what constitutes a frivolous claim. The Comment explains that ''a 'frivolous claim is a claim clearly and palpably without merit; it is a claim which presents no debatable question' '' and a ''mere adverse decision in the case does not mean the matter is frivolous.''
Paragraphs (B)(5) and (B)(6) require that the judge advise the defendant on the record of his or her appellate rights. When the judge makes a finding that the motion is frivolous, paragraph (B)(5) requires the judge to advise the defendant that he or she has the right to file a petition for review within 30 days of the order denying the motion. When the judge denies the motion but does not find it frivolous, paragraph (D)(6) requires the judge to advise the defendant the denial is immediately appealable as a collateral order under the Appellate Rules.
One issue related to the defendant's appellate rights concerned the consequences of a defendant failing to challenge a denial of a motion to dismiss on double jeopardy grounds. Although a failure to file a timely appeal from a final order (and from some interlocutory orders) will result in waiver, case law has recognized that because of the constitutional ramifications of a double jeopardy claim, a defendant may bring a challenge immediately or may defer a challenge to a denial of such a motion until the conclusion of the trial. As an aid to the bench and bar, the Rule 587 Comment has been revised to include a cross-reference to Commonwealth v. Lee, 490 Pa. 346, 350, 416 A.2d 503, 504 (1980), a case in which the Court explained that a defendant may, but does not have to, challenge a denial of the double jeopardy motion immediately after the entry of the order denying the motion and may wait until the conclusion of the trial to appeal.
The Comment also includes a cross-reference to the new Appellate Rule provisions concerning petitions for review set forth in new Rule of Appellate Procedure 1573. As a further aid to the bench and bar, the Comment includes a cross-reference to Rule of Appellate Procedure 1701(d) to make it clear that the filing of a petition for review does not affect the judge's power to proceed further in the case while the petition for review is pending.
Finally, cross-references to the new Criminal Rule provisions in Rule 587 have been added to the Comments to Rules 580 (Disposition of Pretrial Motions) and 605 (Mistrial).
III. Discussion of Appellate Rule Changes
As noted above, the Court also adopted new Rule of Appellate Court Procedure 1573 and correlative changes to Rules of Appellate Procedure 313 and 1516 to clarify the appeal procedures when a defendant's motion to dismiss based on double jeopardy has been denied. A different process for securing review is employed when a judge denies a motion to dismiss on double jeopardy grounds without a finding of frivolousness than when the judge determines that the motion was frivolous in addition to being non-meritorious.
New Pa.R.A.P. 1573 provides the parameters and procedure for seeking review when a motion to dismiss on double jeopardy grounds is ruled to be frivolous. If the trial court does not make a determination that the claim is frivolous, a defendant would continue to file a notice of appeal pursuant to the collateral order rule in Pa.R.A.P. 313. The note to Pa.R.A.P. 313 has been revised to cross-reference the Pa.R.A.P. 1573 procedures for petitions for review in this situation. Pa.R.A.P. 901 and Pa.R.A.P. 1516 and its note also are amended to make it clear that the proper document is a petition for review and not a notice of appeal.
[Pa.B. Doc. No. 13-1109. Filed for public inspection June 21, 2013, 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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