THE COURTS

[ 234 PA. CODE CH. 5 ]

Proposed Amendment of Pa.R.Crim.P. 540

[45 Pa.B. 5915]
[Saturday, October 3, 2015]

 The Criminal Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania the amendment of Rules 540 (Preliminary Arraignment) for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.

 Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They neither will constitute a part of the rules nor will be officially adopted by the Supreme Court.

 Additions to the text of the proposal are bolded; deletions to the text are bolded and bracketed.

 The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:

Jeffrey M. Wasileski, Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
Harrisburg, PA 17106-2635
fax: (717) 231-9521
e-mail: criminalrules@pacourts.us

 All communications in reference to the proposal should be received by no later than Friday, November 13, 2015. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.

By the Criminal Procedural
Rules Committee

PAUL M. YATRON, 
Chair

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 5. PRETRIAL PROCEDURES IN
COURT CASES

PART D. Proceedings in Court Cases Before
Issuing Authorities

Rule 540.  Preliminary Arraignment.

*  *  *  *  *

 (G) Unless the preliminary hearing is waived by a defendant who is represented by counsel, or the attorney for the Commonwealth is presenting the case to an indicting grand jury pursuant to Rule 556.2, the issuing authority shall:

 (1)  fix a day and hour for a preliminary hearing which shall not be later than 14 days after the preliminary arraignment if the defendant is in custody on the current case and no later than 21 days if not in custody unless[:] extended for cause shown; and

 [(a) extended for cause shown; or

 (b) the issuing authority fixes an earlier date upon request of the defendant or defense counsel with the consent of the complainant and the attorney for the Commonwealth; and]

 (2)  give the defendant notice, orally and in writing,

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Comment

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 For public access to arrest warrant information, see Rules 513, 513.1, and Commonwealth v. Fenstermaker, [515 Pa. 501,] 530 A.2d 414 (Pa. 1987).

*  *  *  *  *

 Paragraph (G)(2)(c) requires that the defendant be advised of the consequences of failing to appear for any court proceeding. See Rule 602 concerning a defendant's failure to appear for trial; see also Commonwealth v. Bond, 693 A.2d 220, 223 (Pa. Super. 1997) (''[A] defendant who is unaware of the charges against him, unaware of the establishment of his trial date or is absent involuntarily is not absent 'without cause.''').

 There have been some judicial districts in which the practice has been to set a date for the preliminary hearing within the time limits of this rule with no intention of a preliminary hearing actually taking place on that date; instead, the preliminary hearing is automatically continued by the court. This practice is inconsistent with the intent of the rule.

 Nothing in these rules gives the defendant's parents, guardian, or other custodian legal standing in the matter being heard by the court or creates a right of the defendant to have his or her parents, guardian, or other custodian present.

 See Rule 1003(D) for the procedures governing preliminary arraignments in the Philadelphia Municipal Court.

 See Chapter 5, Part H, Rules 595, 596, 597, and 598, for the procedures governing requests for transfer from criminal proceedings to juvenile proceedings pursuant to 42 Pa.C.S. § 6322 in cases in which the defendant was under the age of 18 at the time of the commission of the alleged offense and charged with one of the offenses excluded from the definition of ''delinquent act'' in paragraphs (2)(i), (2)(ii), and (2)(iii) of 42 Pa.C.S. § 6302.

 Official Note: Original Rule 119 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 119 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 140 September 18, 1973, effective January 1, 1974; amended April 26, 1979, effective July 1, 1979; amended January 28, 1983, effective July 1, 1983; rescinded August 9, 1994, effective January 1, 1995. New Rule 140 adopted August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; renumbered Rule 540 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended August 24, 2004, effective August 1, 2005; amended June 21, 2012, effective in 180 days; amended July 31, 2012, effective November 1, 2012; amended May 2, 2013, effective June 1, 2013; Comment revised December 23, 2013, effective March 1, 2014; amended     , 2015, effective     , 2015.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the December 23, 2013 Comment revisions concerning sealed arrest warrant information published with the Court's Order at 44 Pa.B. 243 (January 11, 2014).

 Report explaining the proposed amendments concerning the scheduling of the preliminary hearing published for comment at 45 Pa.B. 5916 (October 3, 2015).

REPORT

Proposed amendment of Pa.R.Crim.P. 540

Scheduling of Preliminary Hearings for Incarcerated Defendants

 Recently, the Committee had been presented with a question regarding the interpretation of the Rule 540(G)(1) requirement for scheduling the preliminary hearing if the defendant is in custody no later than 14 days after the preliminary arraignment or no later than 21 days if the defendant was not in custody.¹ The question was whether the defendant had to be in custody for the current case or for any matter, even one unrelated to the current case, for the shorter time-period to be applicable.

 The preliminary arraignment rule has had a provision requiring the scheduling of the preliminary hearing since it was first adopted as Rule 119 in 1964. Originally, the time limitation was simply ''within 3 to 10 days after the arraignment'' without reference to custody. This provision was changed in 2012 as part of the package that reinstated indicting grand juries, increasing the time limitations to the current 14 and 21 days. The Final Report to those amendments, 42 Pa.B. 4140 (July 7, 2012), contained the following explanation:

Rule 540(F)²

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.

 During the development of these changes, the Committee also noted that the 3/10 day time limitation was more honored in the breach in most jurisdictions and felt that the extended time limitations would be helpful in all cases, not just those which were being considered for presentation to an indicting grand jury.

 In reviewing the history of Rule 540, the Committee concluded that the intention of the scheduling provision was to ensure that the defendant received a timely preliminary hearing. The distinction made for a defendant who was in custody was designed to ensure that a defendant did not languish unduly in jail before a prima facie determination could be made. In other words, the rule is premised on the idea that the defendant should receive a timely preliminary hearing on the possibility that if no prima facie case would be found, the defendant would be given his or her liberty. If the reason that a defendant is incarcerated is unrelated to the charges that would be reviewed at the preliminary hearing, presumably due to charges or a conviction in another case, the defendant will remain incarcerated even if the charges in the current case are dismissed. Therefore, the Committee determined that the rule was intended to apply only to incarceration on the current pending charges. The proposed change to paragraph (G) reflects this clarification.

 The Committee also noted that there appears to have been an omission when the time limitation language was changed in 2012. Paragraph (G)(1)(b) states that the preliminary hearing will be scheduled in the listed time periods unless ''(b) the issuing authority fixes an earlier date upon request of the defendant or defense counsel with the consent of the complainant and the attorney for the Commonwealth.'' Since the 2012 changes altered the language of the paragraph to read ''fix a day and hour for a preliminary hearing which shall not be later than 14 days after the preliminary arraignment if the defendant is in custody and no later than 21 days if not in custody'' there is no ''earlier date'' unlike in the ''3 to 10 days'' in the former rule. Therefore this language was no longer necessary and would be removed.

 During the discussion of the time limitations of the rules, it was noted that the practice in a few jurisdictions is to schedule the preliminary hearing within the time-period required by the rule but with no intention for the hearing to be held on that date. Instead, the court automatically continues the preliminary hearing to a later date. The Committee concluded that this practice is inconsistent with the intent of the rule and is proposing that language be added to the Comment stating so.

[Pa.B. Doc. No. 15-1755. Filed for public inspection October 2, 2015, 9:00 a.m.]

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¹  It should be noted that the practice in Philadelphia is different from the rest of the Commonwealth due to the different procedures in the Philadelphia Municipal Court. Preliminary arraignment procedures, including the provisions for the scheduling of the preliminary hearing, which are generally held only in felony cases, are governed by Rule 1003. Rule 1003(D)(3)(d)(iii) provides that the preliminary hearing ''shall not be less than 14 nor more than 21 days after the preliminary arraignment . . .'' without making a distinction between defendants who are in custody and those who are not.

²  Rule 540 was amended again later in 2012 and then-paragraph (F) was re-lettered to paragraph (G).

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