THE COURTS
[ 234 PA. CODE CH. 1 ]
Order Adopting New Rule 151 and Approving the Revision of the Comment to Rule 150 of the Rules of Criminal Procedure; No. 439 Criminal Procedural Rules Doc.
[43 Pa.B. 6654]
[Saturday, November 9, 2013]
Order Per Curiam
And Now, this 24th day of October, 2013, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 42 Pa.B. 5164 (August 11, 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 new Pennsylvania Rule of Criminal Procedure 151 is adopted and the revision to the Comment to Pennsylvania Rule of Criminal Procedure 150 is approved in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective January 1, 2014.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART E. Miscellaneous Warrants Rule 150. Bench Warrants.
* * * * *
Comment This rule addresses only the procedures to be followed after a bench warrant is executed, and does not apply to execution of bench warrants outside the Commonwealth, which are governed by the extradition procedures in 42 Pa.C.S. § 9101 et seq., or to warrants issued in connection with probation or parole proceedings.
For the bench warrant procedures when a witness is under the age of 18 years, see Rule 151.
Paragraph (A)(2) permits the bench warrant hearing to be conducted using two-way simultaneous audio-visual communication, which is a form of advanced communication technology. See Rule 103. Utilizing this technology will aid the court in complying with this rule, and in ensuring individuals arrested on bench warrants are not detained unnecessarily.
* * * * * Official Note: Adopted December 30, 2005, effective August 1, 2006; Comment revised October 24, 2013, effective Janaury 1, 2014.
Committee Explanatory Reports:
Final Report explaining new Rule 150 providing procedures for bench warrants published with the Court's Order at 36 Pa.B. 184 (January 14, 2006).
Final Report explaining the October 24, 2013 Comment revision adding a cross-reference to new Rule 151 published with the Court's Order at 43 Pa.B. 6655 (November 9, 2013).
(Editor's Note: The following rule is new and printed in regular type to enhance readability.)
Rule 151. Bench Warrant Procedures When Witness is Under Age of 18 Years.
(A) In a court case when a bench warrant for a witness under the age of 18 years is executed, except as provided in this rule, the case is to proceed in accordance with the procedures in Rule 150.
(B) Upon execution of the warrant for a minor witness, the arresting officer immediately shall inform the proper judicial officer and a parent or guardian of the minor witness of the arrest of the minor witness.
(C) Execution of Bench Warrant in County of Issuance
(1) If the judicial officer who issued the bench warrant, or another judicial officer designated by the president judge or by the president judge's designee, is not available to conduct the bench warrant hearing without unnecessary delay, the minor witness shall be taken before the on-call judge of the court of common pleas.
(a) The on-call judge shall determine whether to release the witness or to detain the witness pending the bench warrant hearing. If the bench warrant specifically orders detention of the minor witness, the on-call judge shall not release the witness.
(b) If the on-call judge determines the witness must be detained, the witness shall be detained in a detention facility. The on-call judge shall notify the parent or guardian of the minor witness of the detention.
(2) The minor witness shall not be detained without a bench warrant hearing on that bench warrant longer than 24 hours, or the close of the next business day if the 24 hours expires on a non-business day.
(D) Execution of Bench Warrant Outside County of Issuance
(1) The minor witness shall be taken before a common pleas court judge of the county of arrest without unnecessary delay and in no case later than the end of the next business day.
(2) The judge shall identify the minor witness as the subject of the bench warrant, decide whether detention as a minor witness is necessary, and order that arrangements be made immediately to transport the minor witness to the county of issuance.
(3) If transportation cannot be arranged immediately, the minor witness shall be released unless the bench warrant specifically orders detention of the witness. In this case, the minor witness shall be detained in an out-of-county detention facility.
(4) If detention is ordered, the minor witness shall be brought to the county of issuance within 72 hours from the execution of the bench warrant.
(5) If the time requirements of this paragraph are not met, the minor witness shall be released.
Comment This rule was adopted in 2013 to establish the procedures when a witness subject to a bench warrant is under the age of 18. The procedures following the execution of a bench warrant set forth in Rule 150 apply to cases when the witness is under the age of 18, except as otherwise provided in this rule.
Paragraph (B) ensures that the judicial officer who issued the bench warrant is aware that the minor witness has been arrested, and that a parent or guardian of the arrested minor witness is notified of the arrest.
The procedures in paragraph (C) for cases in which the bench warrant is executed in the county of issuance, recognize the need, when the issuing judicial officer is unavailable, to conduct the bench warrant hearing, for the common pleas court judge who is on call to determine whether a minor witness may be released or must be detained. If the minor witness is detained, the bench warrant hearing must be held no later than the end of the next business day. If the bench warrant hearing is not conducted within this time period, the minor witness must be released.
The minor witness may not be detained in an adult facility pending a bench warrant hearing.
In cases in which the bench warrant is executed outside the county of issuance, the minor witness must be transported to the county of issuance within 72 hours of the execution of the bench warrant, and the bench warrant hearing must be conducted by the end of the next business day.
As used in this rule, ''minor witness'' means a witness who is under the age of 18 years, and ''proper judicial officer'' means the judicial officer who issued the bench warrant, or, another judicial officer designated by the president judge or by the president judge's designee.
Official Note: Adopted October 24, 2013, effective January 1, 2014.
Committee Explanatory Reports:
Final Report explaining the October 24, 2013 adoption of new Rule 151 providing procedures for bench warrants when a witness is under the age of 18 published with the Court's Order at 43 Pa.B. 6655 (November 9, 2013).
FINAL REPORT1
Adoption of New Pa.R.Crim.P. 151, and Approval of Revisions to the Comment to Pa.R.Crim.P. 150
Bench Warrant Procedures for Witnesses Who Are Under the Age of 18 Years On October 24, 2013, effective January 1, 2014, upon the recommendation of the Criminal Procedural Rules Committee (''Criminal Committee''), the Court adopted new Rule of Criminal Procedure 151 (Bench Warrant Procedures When Witness is Under Age of 18 Years) and approved the revision of the Comment to Pa.R.Crim.P. 150 (Bench Warrants). The new rule and correlative Comment revision establish new procedures for court cases after the execution of a bench warrant that was issued for a witness who is under the age of 18 years.
For the past several years, the Committee has been examining procedures governing the use of subpoenas in the courts of common pleas and in magisterial district courts.2 The Committee agreed a comparable procedure should be included in the proposed changes to Rule 107 that were being developed. Correlative to this discussion, the Committee also discussed procedures for the issuance of bench warrants for witnesses under the age of 18 who have failed to appear when issued a subpoena. The Committee reviewed the provisions for bench warrants in Juvenile Rule 140 (Bench Warrants for Failure to Appear at Hearings), specifically in paragraph (D) for witnesses. The Committee agreed there should be comparable special procedures for bench warrants for minor witnesses in the Rules of Criminal Procedure, and that these special procedures should be set forth in a separate rule, new Rule 151.
Rule 151 sets forth the procedures after a bench warrant for a witness who is under the age of 18 years is issued and executed. Paragraph (A) establishes that, except as provided in Rule 151, the bench warrant procedures in Rule 150 govern cases in which the bench warrant is for a witness under the age of 18 years. Paragraph (B) requires the arresting officer to notify the judicial officer that the minor witness has been arrested on the bench warrant. The arresting officer also is required to notify the parent or guardian of the minor witness. This parental notification requirement is comparable to the requirements in Juvenile Rule 140(D)(3).
The Committee discussed at length the procedure when a minor witness is arrested on a bench warrant and the issuing judicial officer is not available. The issue was whether magisterial district judges (MDJs) are permitted to lodge juveniles in detention facilities. The consensus was that MDJs do not have the authority to lodge juveniles in a detention facility on these bench warrants.
The Committee also discussed the issue of detention of underage witnesses in common pleas court cases in judicial districts without easy access to detention facilities. The members opined that alternatives to detention should be considered such as release on an electronic monitor.
The Committee concluded that the best resolution of issues related to the detention of a minor witness when the issuing judicial officer is not available, whether the bench warrant was issued by an MDJ or by a common pleas court judge, is to require that the minor witness be taken before the on-call common pleas court judge for a bail decision, including release on an electric monitoring unit, or a detention decision. Paragraph (C)(1) and para-graph (C)(1)(a) require the minor witness to be taken to the on-call common pleas court judge for a determination whether to set bail or to detain the witness pending the bench warrant hearing if the judicial officer who issued the bench warrant, or, another judicial officer designated by the president judge or by the president judge's designee, is not available to conduct the bench warrant hearing without unnecessary delay. Paragraph (C)(1)(a) also limits the on-call judge's ability to release when the bench warrant specifically orders the detention of the minor witness. See also Juvenile Rule 140(D)(1)(b). If the on-call judge determines that the minor witness must be detained, paragraph (C)(1)(b) requires that the witness be detained in a detention facility.
Paragraph (C)(2) is taken from Juvenile Rule 140(D)(2) (Prompt Hearing) that requires the bench warrant hearing to be conducted ''by the next business day'' when the minor witness is detained, and if the hearing is not conducted within this time frame, the witness must be released. This language has been modified slightly in Rule 151(C)(2) to provide that the hearing be conducted ''before the end of the next business day.'' The Committee believes this language is clearer.
Paragraph (D) (Execution of Bench Warrant Outside County of Issuance) is taken from Juvenile Rule 140(D)(4) (Out-of-County Custody). Rule 140(D)(4)(a) is addressed in Rule 151(B) by the requirement that the arresting officer notify the proper judicial officer of the arrest of the minor witness.
Paragraphs (D)(2), (D)(3), (D)(4), and (D)(5) follow the requirements in Rule 140(D)(4)(b), (c), (d), (e), (f), and (g). When a minor witness is arrested on a bench warrant out of the county of issuance, paragraph (D)(1) requires the minor witness to be taken before a judge of the county of arrest without unnecessary delay. In no case may there be a delay longer than the end of the next business day. When the minor witness appears before the judge, the judge is required to confirm that the minor witness is the subject of the bench warrant, must decide whether to detain the minor witness, and make arrangements to transport the minor witness to the county of issuance. If the judge is not able to arrange transport, the minor witness must be released unless the bench warrant specifically orders detention. In these cases, the minor witness must be brought to the county of issuance within 72 hours from the execution of the bench warrant or be released.
Because Rule 151 is a court case rule and not a Juvenile Court rule, the Committee did not included the provisions in Juvenile Rule 140(D) for a master or for an ''other order of court.'' Rule 151 applies only to bench warrants issued in court cases unlike the bench warrants that are issued pursuant to Juvenile Rule 140.
The Rule 151 Comment elaborates on the provisions of the new rule and includes a cross-reference to Rule 150. The fourth paragraph explains that a minor witness may not be detained in an adult facility pending the bench warrant hearing.
The Rule 150 Comment has been revised to include a cross-reference to new Rule 151.
[Pa.B. Doc. No. 13-2102. Filed for public inspection November 8, 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.
2 See Committee explanatory Report at 35 Pa.B. 1557 (March 5, 2005) and Supplemental Report at 35 Pa.B. 5677 (October 15, 2005). During these discussions, Rule of Juvenile Court Procedure (''Juvenile Rule'') 123 was amended to require parental notification when a subpoena is issued for a minor witness. The Committee also looked at Act 98 of 2008 that amended 42 Pa.C.S. § 6333 to require notice to a parent or guardian of the subpoena issued to any witness who is under the age of 18 years. Changes correlative to this statutory provision also have been added to Civil Rule 234.2 and MDJ Rule 214. Although the Committee's work on Rule 107 is continuing, the members have agreed a comparable procedure should be included in the final version of any changes to Rule 107 that would be proposed.
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