THE COURTS
Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CHS. 1 AND 6 ]
Proposed Revision of the Comment to Pa.R.Crim.P. 150 and Proposed Amendment of Pa.R.Crim.P. 602
[47 Pa.B. 4520]
[Saturday, August 5, 2017]The Criminal Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania the amendment of Rule 602 (Presence of the Defendant) and the revision of the Comment to Rule 150 (Bench Warrants) 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.usAll 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 CommitteeCHARLES A. EHRLICH,
Chair
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 * * * * * As used in this rule, ''court'' includes magisterial district judge courts.
For procedures for a defendant who is apprehended on a bench warrant issued as a result of a proceeding in absentia, see Rule 602(C).
For the bench warrant procedures in summary cases, see Rules 430(B) and 431(C).
For the arrest warrants that initiate proceedings in court cases, see Chapter 5, Part B(3)(a), Rules 513, 514, 515, 516, 517, and 518. For the arrest warrants that initiate proceedings in summary cases, see Chapter 4, Part D(1), Rules 430(A) and 431(B).
Official Note: Adopted December 30, 2005, effective August 1, 2006; Comment revised October 24, 2013, effective January 1, 2014; Comment revised , 2017, effective , 2017.
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).
Report explaining the proposed Comment revision cross-referencing the Rule 602 procedures for a defendant to challenge a proceeding being held in absentia published for comment at 47 Pa.B. 4521 (August 5, 2017).
CHAPTER 6. TRIAL PROCEDURES IN COURT CASES
PART A. General Provisions Rule 602. Presence of the Defendant.
(A) The defendant shall be present at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant's absence without cause at the time scheduled for the start of trial or during trial shall not preclude proceeding with the trial, including the return of the verdict and the imposition of sentence.
(B) A corporation may appear by its attorney for all purposes.
(C) CHALLENGES TO A FINDING OF ABSENCE WITHOUT CAUSE
(i) If a defendant is tried in absentia but not sentenced in absentia, the defendant, prior to or at time of sentencing, may file a motion seeking a new trial on the grounds that his or her absence at trial was with cause.
(ii) If a defendant is tried and sentenced in absentia, or if a defendant is present at trial but sentenced in absentia, and the defendant is subsequently taken into custody:
(a) the defendant promptly shall be brought before the sentencing judge, or a judge designated by the president judge, and notified that he or she may file a motion within 30 days seeking a new trial or sentencing hearing on the grounds that his or her absence at trial or at sentencing was with cause.
(b) Counsel for the defendant shall be present at the proceeding at which this notification is given.
(c) The notification shall occur while the defendant is within the jurisdiction of the sentencing court.
(d) The defendant shall remain within the jurisdiction of the sentencing court during the pendency of any motion filed pursuant to this rule or 30 days, whichever is longer.
Comment * * * * * A defendant's presence may be deemed waived by the defendant intentionally failing to appear at any stage of the trial after proper notice. See Commonwealth v. Wilson, 551 Pa. 593, 712 A.2d 735 (1998) (a 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); Commonwealth v. Sullens, 533 Pa. 99, 619 A.2d 1349 (1992) (when a defendant is absent without cause at the time his or her trial is scheduled to begin, the defendant may be tried in absentia).
Any defendant who has been convicted or sentenced in absentia may challenge the holding of the proceeding in his or her absence by filing a motion for a new trial or sentencing hearing once the defendant is before the court. The defendant has the burden of demonstrating that there was justifiable cause for his or her absence. If the judge determines that the absence was with cause, the defendant must be afforded a new trial or sentencing hearing. Any defendant who is apprehended on a bench warrant as a result of a sentencing in absentia must be notified that he or she may file a motion, within 30 days of the notification, challenging the sentencing having been held in absentia. This notice must be given while the defendant is still within the jurisdiction of the sentencing court and prior to any transfer to a correctional facility for execution of sentence. Once a motion is filed pursuant to this rule, the defendant must be retained within the jurisdiction of the sentencing court. If no motion has been filed within the 30 days permitted under this rule, the sentence may be executed.
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 (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). Once a defendant appears before the court, he or she cannot waive his or her right to appear in capital case. See Commonwealth v. Ford, 539 Pa. 85, 650 A.2d 433 (1994) (right of defendant to be present at trial of capital offense is transformed into obligation due to gravity of potential outcome).
* * * * * 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; amended May 2, 2013, effective June 1, 2013; amended , 2017, effective , 2017.
Committee Explanatory Reports:
* * * * * Final Report explaining the May 2, 2013 amendments concerning trials conducted in the defendant's absence published with the Court's Order at 43 Pa.B. 2710 (May 18, 2013).
Report explaining the proposed amendment concerning motions to challenge in absentia proceedings published for comment at 47 Pa.B. 4521 (August 5, 2017).
REPORT
Proposed Amendment to Pa.R.Crim.P. 602; Proposed Revision of the Comment to Pa.R.Crim.P. 150
In Absentia Relief The Committee recently examined the question of relief for those defendants who assert that they have been tried or sentenced in absentia under Rule 602. Rule 602(A) provides that ''the defendant's absence without cause at the time scheduled for the start of trial or during trial shall not preclude proceeding with the trial, including the return of the verdict and the imposition of sentence.'' However, the rule does not specify a procedure for challenging an incorrect finding of absence without cause. There was a suggestion that the rules should provide a specific procedure for raising such challenges, particularly when the defendant has been sentenced in absentia.
During the Committee's discussion it was argued that there was no need to develop separate procedures since existing procedures such as a writ of habeas corpus or nunc pro tunc post-sentence motions should be sufficient to raise these types of challenges. Other members argued that these suggested remedies are not likely to be available. Any post-sentence motion or appeal that is filed by a fugitive defendant will be quashed due to fugitivity, and that, generally, a trial judge loses authority to enter an order in a case 30 days after the judgment of sentence pursuant to 42 Pa.C.S. § 5505. Habeas corpus would not be available because the habeas corpus statute specifically excludes any claims that might be covered by the PCRA and these challenges might be cognizable under the PCRA. However, a PCRA does not appear to be an adequate vehicle for these types of claims due to the fact that challenges cannot be filed while the defendant is a fugitive since the defendant must be in custody serving a sentence and, while the defendant may be able to raise this in a PCRA once taken into custody, he or she may be precluded from this remedy by the PCRA's severe time limitations.
The Committee concluded that the rules should provide explicit procedures to give a defendant a venue to seek this relief. Where a defendant is tried but not sentenced in absentia, the finding of absence without cause may be challenged at the sentencing hearing. This was based on a concept first proposed in a concurrence by Justice Papadakos in the case of Commonwealth vs. Sullens, 619 A.2d. 1349 (Pa. 1992). In that case, Justice Papadakos suggested an erroneous order permitting trial in absentia could be corrected when the defendant appears for sentencing and establishes good cause for his absence at trial, in which case a new trial will be awarded. However, the case in which a defendant is also sentenced in absentia was not addressed in Sullens. Ordinarily when such a defendant is arrested, because sentence has already been imposed, they normally would be taken for execution of sentence.
The Committee discussed the fact that when a defendant is tried in absentia, a bench warrant would have been issued against him or her. In that case, the defendant would be required to be brought before the judge who issued the bench warrant for a bench warrant hearing when apprehended. Initially it was thought that a challenge to the in absentia finding could be raised at the bench warrant hearing or at least the defendant could be advised of the option of seeking relief from the in absentia finding. However, the Committee believed that a bench warrant hearing would be an inadequate venue for determining such an issue, particularly since the burden would be on the defendant to prove that his or her absence was with cause. Additionally, there was a concern that by combining the advice regarding in absentia relief with the bench warrant proceeding, there may be confusion for the defendant regarding the in absentia relief procedures. The Committee concluded that the advice regarding the motion procedure for in absentia challenges should be given at a separate proceeding, conducted by the sentencing judge or a judge designated by the president judge. In order for the defendant to understand the significance of this advice, particularly because this might be his or her last opportunity before the execution of his or her sentence, counsel must be present.
The defendant would have 30 days from the time of the advice proceeding to file the motion challenging the in absentia sentencing. As a logistical matter, the defendant should be kept within the geographical jurisdiction of the sentencing court during the 30 days in which he or she may file the motion. If no motion is filed, the defendant's sentence would be executed.
The provisions for seeking relief from an in absentia proceeding, either guilt determination or sentencing or both, would be included in a new paragraph (C) in Rule 602. Further explanation would be included in the Comment to Rule 602. A cross-reference to Rule 602(C) would be added to the Comment to Rule 150 to alert the judge conducting the bench warrant hearing that a defendant who had been sentenced in absentia will need to be scheduled for a Rule 602(C) proceeding.
[Pa.B. Doc. No. 17-1297. Filed for public inspection August 4, 2017, 9:00 a.m.]
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