THE COURTS

[ 234 PA. CODE CH. 4 ]

Proposed Revision of the Comment to Pa.R.Crim.P. 460 and Proposed Amendment of Pa.R.Crim.P. 462

[47 Pa.B. 3959]
[Saturday, July 22, 2017]

 The Criminal Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania the amendment of Rule 462 (Trial De Novo) and the revision of the Comment to Rule 462 (Notice of Appeal) 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, September 15, 2017. 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

CHARLES A. EHRLICH, 
Chair

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 4. PROCEDURES IN SUMMARY CASES

PART F. Procedures in Summary Cases for Appealing to Court of Common Pleas for Trial De Novo

Rule 460. Notice of Appeal.

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Comment

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 Rule 462(D) provides for the dismissal of an appeal when the defendant fails to appear for the trial de novo.

 See Rule 462(F) regarding the retention of a case at the court of common pleas when a petition to file an appeal nunc pro tunc has been denied.

 Certiorari was abolished by the Criminal Rules in 1973 pursuant to Article V Schedule Section 26 of the Constitution of Pennsylvania, which specifically empowers the Supreme Court of Pennsylvania to do so by rule. This Schedule section is still viable, and the substance of this Schedule section has also been included in the Judicial Code, 42 Pa.C.S. § 934. The abolition of certiorari continues with this rule.

 Official Note: Former Rule 86 adopted July 12, 1985, effective January 1, 1986; revised September 23, 1985, effective January 1, 1986; the January 1, 1986 effective dates extended to July 1, 1986; amended February 2, 1989, effective March 1, 1989; amended March 22, 1993, effective January 1, 1994; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; amended February 27, 1995, effective July 1, 1995; amended October 1, 1997, effective October 1, 1998; amended May 14, 1999, effective July 1, 1999; amended March 3, 2000, effective July 1, 2000; rescinded March 1, 2000, effective April 1, 2001, and paragraphs (A), (D), (E), (F), (H), and (I) replaced by Rule 460. New Rule 460 adopted March 1, 2000, effective April 1, 2001; amended February 6, 2003, effective July 1, 2003; Comment revised February 28, 2003, effective July 1, 2003; Comment revised   , 2017, effective   , 2017.

 Committee Explanatory Reports:

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 Final Report explaining the February 28, 2003 Comment revision cross-referencing Rule 461 published with the Court's Order at 33 Pa.B. 1326 (March 15, 2003).

 Report explaining the proposed Comment revision cross-referencing Rule 462(F) published for comment at 47 Pa.B. 3961 (July 22, 2017).

Rule 462. Trial De Novo.

*  *  *  *  *

 (E) If the defendant withdraws the appeal, the trial judge shall enter judgment in the court of common pleas on the judgment of the issuing authority.

 (F) If the defendant has petitioned the trial judge to permit the taking of an appeal nunc pro tunc and this petition is denied, the trial judge shall enter judgment in the court of common pleas on the judgment of the issuing authority.

 [(F)] (G) The verdict and sentence, if any, shall be announced in open court immediately upon the conclusion of the trial, or, in cases in which the defendant may be sentenced to intermediate punishment, the trial judge may delay the proceedings pending confirmation of the defendant's eligibility for intermediate punishment.

 [(G)] (H) At the time of sentencing, the trial judge shall:

*  *  *  *  *

 [(H)] (I) After sentence is imposed by the trial judge, the case shall remain in the court of common pleas for the execution of sentence, including the collection of any fine and restitution, and for the collection of any costs.

Comment

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 The procedures for conducting the trial de novo in the court of common pleas set forth in paragraphs (B), [(F), and] (G) and (H) are comparable to the summary case trial procedures in Rule 454 (Trial in Summary Cases).

 Pursuant to paragraph (B), the decision whether to appear and assume control of the prosecution of the trial de novo is solely within the discretion of the attorney for the Commonwealth. When no attorney appears at the trial de novo on behalf of the Commonwealth or a municipality, the trial judge may ask questions of any witness who testifies, and the affiant may request the trial judge to ask specific questions. In the appropriate circumstances, the trial judge also may permit the affiant to question Commonwealth witnesses, cross-examine defense witnesses, and make recommendations about the case to the trial judge.

 The provisions of paragraph (C) that permit the court to continue the case if there is good cause for the officer's unavailability were added in response to Commonwealth v. Hightower, 652 A.2d 873 (Pa. Super. 1995).

 Paragraph (D) makes it clear that the trial judge may dismiss a summary case appeal when the judge determines that the defendant is absent without cause from the trial de novo. If the appeal is dismissed, the trial judge should enter judgment and order execution of any sentence imposed by the issuing authority.

 New paragraph (F) was added in 2017 to clarify that a case in which a defendant seeks to file an appeal nunc pro tunc, and the common pleas judge denies that petition, the case will remain at the court of common pleas. This is consistent with the long-standing policy under the rules that once a case has moved from the minor judiciary to the court of common pleas, the case remains at common pleas.

 Paragraph [(F)] (G) was amended in 2008 to permit a trial judge to delay imposition of sentence in order to investigate a defendant's eligibility for intermediate punishment for certain offenses, including summary violations of 75 Pa.C.S. § 1543(b) (driving while license is under a DUI-related suspension), but only if he or she meets certain eligibility requirements, such as undergoing a drug and alcohol assessment. Potentially this information may not be available to the trial judge following a trial de novo at the time of sentencing.

 Pursuant to paragraph [(G)] (H), if the defendant is convicted, the trial judge must impose sentence, and advise the defendant of the payment schedule, if any, and the defendant's appeal rights. See Rule 704(A)(3) and Rule 720(D). No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 535 U.S. 654 (2002), Scott v. Illinois, 440 U.S. 367 (1979), and Argersinger v. Hamlin, 407 U.S. 25 (1972).

 Certain costs are mandatory and must be imposed. See, e.g., Section 1101 of the Crime Victims Act, 18 P.S. § 11.1101.

 Once sentence is imposed, paragraph [(H)] (I) makes it clear that the case is to remain in the court of common pleas for execution of the sentence and collection of any costs, and the case may not be returned to the magisterial district judge. The execution of sentence includes the collection of any fines and restitution.

 For the procedures concerning sentences that include restitution in court cases, see Rule 705.1.

 For the procedures for appeals from the Philadelphia Municipal Court Traffic Division, see Rule 1037.

 Official Note: Former Rule 86 adopted July 12, 1985, effective January 1, 1986; revised September 23, 1985, effective January 1, 1986; the January 1, 1986 effective dates extended to July 1, 1986; amended February 2, 1989, effective March 1, 1989; amended March 22, 1993, effective January 1, 1994; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; amended February 27, 1995, effective July 1, 1995; amended October 1, 1997, effective October 1, 1998; amended May 14, 1999, effective July 1, 1999; rescinded March 1, 2000, effective April 1, 2001, and paragraph (G) replaced by Rule 462. New Rule 462 adopted March 1, 2000, effective April 1, 2001; amended March 3, 2000, effective July 1, 2000; amended February 28, 2003, effective July 1, 2003; Comment revised March 26, 2004, effective July 1, 2004; amended January 18, 2007, effective August 1, 2007; amended December 16, 2008, effective February 1, 2009; Comment revised October 16, 2009, effective February 1, 2010; Comment revised May 7, 2014, effective immediately; amended March 9, 2016, effective July 1, 2016; amended   , 2017, effective   , 2017.

 Committee Explanatory Reports:

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 Final Report explaining the March 9, 2016 amendments to paragraph (G) concerning required elements of the sentence published with the Court's Order at 46 Pa.B. 1540 (March 26, 2016).

 Report explaining the proposed amendments regarding appeals nunc pro tunc published for comment at 47 Pa.B. 3961 (July 22, 2017).

REPORT

Proposed Amendment of Pa.R.Crim.P. 462; Proposed Revision of the Comment to Pa.R.Crim.P. 460

Summary Appeal Remand

 The Committee recently examined an issue that has come up occasionally regarding the Court's ''no-remand'' policy in summary cases. The scenario is that a defendant is convicted of a summary offense before a magisterial district judge (MDJ) and then files a petition to be allowed to file a summary appeal nunc pro tunc. The common pleas court denies the petition and orders that the case be ''remanded'' back to the MDJ office. The common pleas judge in these situations has taken the position that, because the common pleas court has never addressed the actual appeal, the case is not subject to the ''no remand'' provisions of Rule 462(H).

 Under Rule 460(D), when an appeal is filed in a summary case, the case and associated documents are transferred from the MDJ to the clerk of courts and then adjudicated by a common pleas judge. Paragraph (H) of Rule 462 states:

(H) After sentence is imposed by the trial judge, the case shall remain in the court of common pleas for the execution of sentence, including the collection of any fine and restitution, and for the collection of any costs.

 This provision is one part of the Court's long-standing ''no remands'' policy. It has been the Court's position that once a case ''goes up'' from the minor judiciary to the court of common pleas, it should stay at common pleas. This policy has been articulated in rule changes that were adopted in 2003 (clarifying when an appeal for a trial de novo in a summary case or a contempt adjudication is taken, the case remains in the court of common pleas for the execution of any sentence and collection of any fines and restitution, and collection of any costs), in 2006 (clarifying the procedures for handling cases in which a summary offense is joined with misdemeanor, felony, or murder charges both when the case is before the issuing authority and after the case is held for court), and in 2010 (addressing three areas in which remands from the court of common pleas to the issuing authority still are occurring despite the Court's policy that prohibits such remands: (1) the practice of remanding cases for a preliminary hearing where a defendant who was designated as ''NEI'' is apprehended; (2) use of remands as remedies for a waived preliminary hearing; and (3) the practice of remanding cases without court involvement when the district attorney withdraws felony/misdemeanor prior to the filing of the information).¹

 Additionally, in 2006, then-Chief Justice Cappy sent a letter to all President Judges reiterating the ''no remand''policy and how it applied specifically to summary appeals. In that letter, Chief Justice Cappy noted that Rule 462 contains paragraph (D), which provides that the case is retained at common pleas if a defendant fails to appear for the trial de novo and the MDJ sentence is entered at common pleas and paragraph (E), which provides similarly when the defendant withdraws the appeal. As noted above, paragraph (H) provides that when a sentence has been entered by the common pleas judge, it remains at common pleas for execution of sentence. The rationale for this policy is to prevent cases from ''bouncing back and forth'' between the MDJ and common pleas courts. This could result in confusion and the potential repeated transfer of court records and case-associated money.

 None of these pronouncements by the Court addressed the situation of the dismissal of a late filed summary appeal. The Committee examined the above history of the no-remand policy and concluded that the underlying rationale of the policy would be applicable to the situation at issue. Since the common pleas court must make a decision on the petition, the case is transferred from the MDJ to the common pleas court. The same concerns about transferring the case record and money are present here as in other summary appeal situations. Additionally, the Committee noted the instances mentioned above where a case in which a full trial de novo has not been held, such as when a defendant fails to appear for the trial, still is retained at the common pleas court.

 Therefore, a new paragraph (F) would be added to Rule 462 that would state specifically that a late-filed appeal adjudicated at common pleas court would remain at common pleas court. Additionally, a cross-reference to this new provision would be added to the Comment to Rule 460 since that rule provides the procedures for filing appeals, including time limitations.

[Pa.B. Doc. No. 17-1201. Filed for public inspection July 21, 2017, 9:00 a.m.]

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¹  See 33 Pa.B. 1324 (March 15, 2003), 36 Pa.B. 1385 (March 25, 2006), and 40 Pa.B. 1068 (February 27, 2010).

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