THE COURTS

Title 234—RULES OF
CRIMINAL PROCEDURE

[234 PA. CODE CHS. 1, 5, 7 AND 10]

Proposed Amendment of Pa.R.Crim.P. 122 and 1003; Rescission of Pa.R.Crim.P. 520—529 and Replacement with Pa.R.Crim.P. 520.1—520.19; Adoption of Pa.R.Crim.P. 708.1, and Renumbering and Amendment of Pa.R.Crim.P. 708.

[52 Pa.B. 205]
[Saturday, January 8, 2022]

 The Criminal Procedural Rules Committee is considering proposing to the Supreme Court of Pennsylvania the proposed amendment of Pa.R.Crim.P. 122 (Appointment of Counsel) and 1003 (Procedure in Non-Summary Municipal Court Cases); rescission of Pa.R.Crim.P. 520—529 and replacement with Pa.R.Crim.P. 520.1—520.19 governing bail proceedings; adoption of Pa.R.Crim.P. 708.1 (Violation of Probation or Parole: Notice, Detainer, Gagnon I Hearing, Disposition, and Swift Sanction Program), and renumbering and amendment of Pa.R.Crim.P. 708 (Violation of Probation or Parole: Gagnon II Hearing and Disposition), for the reasons set forth in the accompanying publication report. Pursuant to Pa.R.J.A. 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 report accompanying this proposal was prepared by the Committee to indicate the rationale for the proposed rulemaking. It will neither constitute a part of the rules nor be adopted by the Supreme Court.

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

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

Joshua M. Yohe, Counsel
Criminal Procedural Rules Committee
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635
FAX: (717) 231-9521
criminalrules@pacourts.us

 All communications in reference to the proposal should be received by Tuesday, March 8, 2022. 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

BETH A. LAZZARA, 
Chair

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 1. SCOPE OF RULES,
CONSTRUCTION AND DEFINITIONS,
LOCAL RULES

PART B. Counsel

Rule 122. Appointment of Counsel.

 (A) Counsel shall be appointed:

 (1) in all summary cases, for all defendants who are without financial resources or who are otherwise unable to employ counsel when there is a likelihood that imprisonment will be imposed;

 (2) in all court cases, prior to the preliminary hearing to all defendants who are without financial resources [or], who are otherwise unable to employ counsel, or as required by rule;

 (3) in all cases, by the court, on its own motion, when the interests of justice require it.

 (B) When counsel is appointed,

 (1) the judge shall enter an order indicating the name, address, and phone number of the appointed counsel, and the order shall be served on the defendant, the appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth pursuant to Rule 114 (Orders and Court Notices: Filing; Service; and Docket Entries); and

 (2) unless otherwise provided in these rules, the appointment shall be effective until final judgment, including any proceedings upon direct appeal.

 (C) A motion for change of counsel by a defendant for whom counsel has been appointed shall not be granted except for substantial reasons.

Comment

 This rule is designed to implement the decisions of Argersinger v. Hamlin, 407 U.S. 25 (1972), and Coleman v. Alabama, 399 U.S. 1 (1970), that no defendant in a summary case be sentenced to imprisonment unless the defendant was represented at trial by counsel, and that every defendant in a court case has counsel starting no later than the preliminary hearing stage.

 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) and Scott v. Illinois, 440 U.S. 367 (1979). See Rule 454 (Trial in Summary Cases) concerning the right to counsel at a summary trial.

 Appointment of counsel can be waived, if such waiver is knowing, intelligent, and voluntary. See Faretta v. California, 422 U.S. 806 (1975). Concerning the appointment of standby counsel for the defendant who elects to proceed pro se, see Rule 121.

 In both summary and court cases, the appointment of counsel to represent indigent defendants remains in effect until all appeals on direct review have been completed.

 Ideally, counsel should be appointed to represent indigent defendants immediately after they are brought before the issuing authority in all summary cases in which a jail sentence is possible, and immediately after preliminary arraignment in all court cases. This rule strives to accommodate the requirements of the Supreme Court of the United States to the practical problems of implementation. Thus, in summary cases, paragraph (A)(1) requires a pretrial determination by the issuing authority as to whether a jail sentence would be likely in the event of a finding of guilt in order to determine whether trial counsel should be appointed to represent indigent defendants. It is expected that the issuing authorities in most instances will be guided by their experience with the particular offense with which defendants are charged. This is the procedure recommended by the ABA Standards Relating to Providing Defense Services § 4.1 (Approved Draft 1968) and cited in the United States Supreme Court's opinion in Argersinger, supra. If there is any doubt, the issuing authority can seek the advice of the attorney for the Commonwealth, if one is prosecuting the case, as to whether the Commonwealth intends to recommend a jail sentence in case of conviction.

 In court cases, paragraph (A)(2) requires counsel to be appointed at least in time to represent the defendant at the preliminary hearing. Although difficulty may be experienced in some judicial districts in meeting the Coleman requirement, it is believed that this is somewhat offset by the prevention of many post-conviction proceedings that would otherwise be brought based on the denial of the right to counsel. However, there may be cases in which counsel has not been appointed prior to the preliminary hearing stage of the proceedings, e.g., counsel for the preliminary hearing has been waived, or a then-ineligible defendant subsequently becomes eligible for appointed counsel. In such cases, it is expected that the defendant's right to appointed counsel will be effectuated at the earliest appropriate time.

 Counsel must be appointed for a defendant, regardless of financial resources, for a hearing to review bail conditions pursuant to Rule 520.15 or impose pretrial detention pursuant to Rule 520.16. See Rule 520.5.

 An attorney may not be appointed to represent a defendant in a capital case unless the attorney meets the educational and experiential requirements set forth in Rule 801 (Qualifications for Defense Counsel in Capital Cases).

 Paragraph (A)(3) retains in the issuing authority or judge the power to appoint counsel regardless of indigency or other factors when, in the issuing authority's or judge's opinion, the interests of justice require it.

 Pursuant to paragraph (B)(2) counsel retains his or her appointment until final judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania. In making the decision whether to file a petition for allowance of appeal, counsel must (1) consult with his or her client, and (2) review the standards set forth in Pa.R.A.P. 1114 (Considerations Governing Allowance of Appeal) and the note following that rule. If the decision is made to file a petition, counsel must carry through with that decision. See Commonwealth v. Liebel, [573 Pa. 375,] 825 A.2d 630 (Pa. 2003). Concerning counsel's obligations as appointed counsel, see Jones v. Barnes, 463 U.S. 745 (1983). See also Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. 2001). The scope and term of counsel's representation may also be limited by rule. For example, see Rule 520.5(D) that provides for limited representation for initial bail determination, review of bail conditions, and pretrial detention.

 See Commonwealth v. Alberta, [601 Pa. 473,] 974 A.2d 1158 (Pa. 2009), in which the Court stated that ''[a]ppointed counsel who has complied with Anders [v. California, 386 U.S. 738 (1967),] and is permitted to withdraw discharges the direct appeal obligations of counsel. Once counsel is granted leave to withdraw per Anders, a necessary consequence of that decision is that the right to appointed counsel is at an end.''

 For suspension of Acts of Assembly, see Rule 1101.

*  *  *  *  *

CHAPTER 5. PRETRIAL PROCEDURES
IN COURT CASES

Part C. Bail

 (Editor's Note: Rules 520—529 of the Rules of Criminal Procedure, which appear in 234 Pa. Code pages 5-24.12 to 15-39, serial pages (395172) to (395174), (312439) to (312440), (395665) to (395666), (382199) to (382200), (312441) to (312444), (335941) to (335942), (376049) to (376052) and (383601) are proposed to be rescinded and replaced with the following proposed new rules.)

Introduction

 In accordance with Section 5702 of the Judicial Code, 42 Pa.C.S. § 5702, which provides that ''all matters relating to the fixing, posting, forfeiting, exoneration, and distribution of bail and recognizances shall be governed by general rules,'' the rules in this subchapter govern the bail determination procedures for the release of a defendant from custody pending the full and final disposition of the defendant's case. In 202 __ , Pa.R.Crim.P. 520—529 were rescinded and replaced with Pa.R.Crim.P. 520.1—520.19 effective ______ ____ , 202 __ .

 The goal of the bail determination procedures is for the least number of people being detained, through timely release at the earliest stage, as is necessary to reasonably ensure appearance for court and the safety of the community, including the victim, defendant, and judicial system.

 All defendants will receive a determination of bail eligibility. Unless the defendant is charged with a disqualifying offense, the process begins with an individualized assessment of release factors to determine whether a defendant is bailable. After considering these factors, the bail authority shall make a determination of the least restrictive necessary and available conditions to reasonably assure the purpose of bail, if any. The purpose of this determination is not to impose punishment. A defendant may not be eligible for bail following a detention hearing.

 (Editor's Note: The following rules are proposed to be added and printed in regular type to enhance readability.)

Rule 520.1. Purpose of Bail.

 (A) Purpose. The purpose of bail is to release timely a defendant at the earliest stage with any conditions to reasonably assure:

 (1) the defendant's appearance for court;

 (2) the safety of the community, including the victim, from harm by the defendant;

 (3) the protection of the defendant from immediate risk of substantial physical self-harm; and

 (4) the integrity of the judicial system.

 (B) Detention. A defendant shall not be detained unless no available condition or combination of conditions can fulfill the purpose of bail.

 (C) Agreements. A bail authority shall accept no agreement of the parties concerning bail conditions unless the bail authority is satisfied the agreement is consistent with the purpose of bail.

Comment

 Article I, § 14 of the Pennsylvania Constitution states: ''All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great; and the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it.''

 The purpose of bail is derived from Article I, § 14 and intended to ''reasonably assure the safety of any person and the community.'' An immediate risk of physical self-harm may include crisis induced by alcohol, drug, or mental health issues requiring emergent intervention.

 Reasonably assuring the integrity of the judicial system includes protection against likely witness intimidation and destruction of evidence.

 A defendant charged with a capital offense or an offense having a maximum sentence of life imprisonment is not bailable regardless of any available condition. See also Rule 520.16.

Rule 520.2. Bail Determination Before Verdict.

 (A) Bail before verdict shall be determined in all cases.

 (B) A defendant may be admitted to bail on any day and at any time.

 (C) Unless otherwise provided by rule, the initial determination of bail shall occur:

 (1) At the preliminary arraignment when the bail authority does not detain the defendant pending a detention hearing pursuant to Rule 520.16; or

 (2) At the preliminary hearing when a defendant does not receive a preliminary arraignment.

Comment

 This rule was adopted in 20 __ and is derived, in part, from prior Rule 520.

 For the minor judiciary's authority to set bail, see the Judicial Code, 42 Pa.C.S. §§ 1123(a)(5), 1143(a)(1), and 1515(a)(4).

 See Pa.R.J.C.P. 396, which provides that, at the conclusion of a transfer hearing, the juvenile court judge is to determine bail pursuant to these bail rules for a juvenile whose case is ordered transferred to criminal proceedings.

 Rule 117(C) requires the president judge to ensure coverage is provided to satisfy the requirements of paragraph (B).

 For the initial determination of bail otherwise provided by rule, see Rule 517 (Procedure in Court Cases When Warrant of Arrest is Executed Outside of Judicial District of Issuance).

 For the release by the arresting officer of a defendant arrested without a warrant, see Pa.R.Crim.P. 519(B). A preliminary arraignment shall be afforded without unnecessary delay. See Pa.R.Crim.P. 519(A). It is best practice to hold the preliminary arraignment within 24 hours of arrest to minimize the period of detention before the initial determination of bail. See also Commonwealth v. Yandamuri, 159 A.3d 503, 529 (Pa. 2017) (recognizing abrogation of the bright-line rule of inadmissibility of statements made more than six hours after arrest in favor of a totality-of-the-circumstances approach, although ''unnecessary delay between arrest and arraignment remains a factor to consider in the voluntariness analysis''); County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991) (a defendant may not be detained without a judicial determination of probable cause no less than 48 hours after arrest).

Rule 520.3. Bail Determination After Finding of Guilt.

 (A) Before Sentencing.

 (1) Capital and Life Imprisonment Cases. When a defendant is found guilty of an offense, which is punishable by death or life imprisonment, the defendant shall be detained.

 (2) Other Cases.

 (a) The defendant shall have the same right to bail after verdict and before the imposition of sentence as the defendant had before verdict when the aggregate of possible sentences to imprisonment on all outstanding verdicts against the defendant within the same judicial district cannot exceed three years.

 (b) Except as provided in paragraph (A)(1), when the aggregate of possible sentences to imprisonment on all outstanding verdicts against the defendant within the same judicial district can exceed three years, the defendant shall have the same right to bail as before verdict unless the judge makes a finding that no condition of bail will reasonably assure the purpose of bail, as provided in Rule 520.1. The judge may revoke bail or detain the defendant based upon such a finding.

 (B) After Sentencing.

 (1) When the sentence imposed includes imprisonment of less than two years, the defendant shall have the same right to bail as before verdict, unless the judge, pursuant to paragraph (D), modifies the bail order.

 (2) Except as provided in paragraph (A)(1), when the sentence imposed includes imprisonment of two years or more, the defendant shall not have the same right to bail as before verdict, but bail may be allowed in the discretion of the judge.

 (3) When the defendant is released on bail after sentencing, the judge shall require as a condition of release that the defendant either file a post-sentence motion and perfect an appeal or, when no post-sentence motion is filed, perfect an appeal within the time permitted by law.

 (C) Reasons for Revoking Bail or Detention. Whenever bail is revoked or the defendant detained under this rule, the judge shall state on the record the reasons for this decision.

 (D) Modification of Bail Order After Verdict or After Sentencing.

 (1) When a defendant is eligible for release on bail after verdict or after sentencing pursuant to this rule, the conditions of the existing bail order may be modified by a judge of the court of common pleas, upon the judge's own motion or upon motion of counsel for either party with notice to opposing counsel, in open court on the record when all parties are present.

 (2) The decision whether to change the type of release on bail or what conditions of release to impose shall be based on the judge's evaluation of the information about the defendant as it relates to the release factors set forth in Rule 520.6. The judge shall also consider whether there is an increased likelihood of the defendant's fleeing the jurisdiction or whether the defendant is a danger to any other person or to the community or to himself or herself.

 (3) The judge may change the type of release on bail and conditions, as appropriate.

 (E) Municipal Court. Bail after a finding of guilt in the Philadelphia Municipal Court shall be governed by the rules set forth in Chapter 10.

Comment

 This rule was adopted in 20 __ and is derived, in part, from prior Rule 521.

 For post-sentence procedures generally, see Rules 704 and 720. For additional procedures in cases in which a sentence of death or life imprisonment has been imposed, see Rules 810 and 811. ''Life imprisonment cases'' include those cases where the defendant is subject to a potential sentence of life imprisonment due to prior convictions.

 For purposes of this rule, ''verdict'' includes a plea of guilty or nolo contendere that is accepted by the judge.

 Whenever the trial judge sets bail after sentencing pending appeal, paragraph (B)(3) requires that a condition of release be that the defendant perfect a timely appeal. However, the trial judge cannot, as part of that condition, require that the defendant perfect the appeal in less time than that allowed by law.

 Unless bail is revoked, the bail bond is valid until full and final disposition of the case. See Rule 534. The Rule 534 Comment points out that the bail bond is valid through all avenues of direct appeal in the Pennsylvania courts, but not through any collateral attack.

Rule 520.4. Detention of Witnesses.

 (A) Timing and Application. After a defendant has been arrested for any offense, upon application of the attorney for the Commonwealth or defense counsel, and subject to the provisions of this chapter, a court may determine bail for any material witness named in the application. The application shall be supported by an affidavit setting forth adequate cause for the court to conclude that the witness will fail to appear when required if not held in custody or released on bail. The application shall also identify the proceeding for which the witness's presence is required. If the court grants the application, then the court shall issue process to bring any named witnesses before it for the purpose of determining bail.

 (B) Detention. If the material witness is unable to satisfy the conditions of release after having been given immediate and reasonable opportunity to do so, the court shall order the witness detained, provided that at any time thereafter and prior to the term of court for which the witness is being held, the court shall release the witness when the witness satisfies the conditions of release. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be preserved, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the witness's testimony can be preserved.

 (C) Further Application. Upon application, a court may release a witness from detention with or without conditions, or grant other appropriate relief.

 (D) Minors. If process has been issued pursuant to paragraph (A) for a material witness who is under the age of 18 years, the procedures provided in Rule 151 shall apply.

 (E) Rescission and Release. At the conclusion of the criminal proceeding for which process has been issued, any process for a witness to appear pursuant to paragraph (A) shall be rescinded. To eliminate unnecessary detention, the court shall supervise the detention of any persons held as material witnesses. Any witness detained pursuant to paragraph (B) shall be released when the witness's presence is no longer necessary.

Comment

 This rule was adopted in 20 __ and is derived, in part, from prior Rule 522.

 This rule does not permit a witness to be detained prior to the arrest of the defendant, since an arrest might never take place and the witness could be held indefinitely.

 See Pa.R.Crim.P. 500 and 501 (Preservation of testimony).

 Pursuant to paragraph (C), a witness may be released conditioned upon the witness' written agreement to appear as required. See Rule 520.8.

 This rule does not affect the compensation and expenses of witnesses under the Judicial Code, 42 Pa.C.S. § 5903, or the provisions of the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings. See 42 Pa.C.S. §§ 5963(c) and 5964(b) relating to bail.

 In determining bail for a material witness pursuant to this rule, the court should consider all available conditions pursuant to Rules 520.8—520.11. When a material witness' presence is required, the court should impose the least restrictive means of assuring the witness' presence.

Rule 520.5. Counsel.

 (A) Bail Determination. A defendant may be represented by counsel at the initial bail determination.

 (B) Review of Conditions. If a defendant remains in detention 48 hours following an initial bail determination, the defendant shall be eligible for the appointment of counsel regardless of the defendant's financial resources for the review of conditions.

 (C) Detention. When a defendant is detained for detention hearing pursuant to Rule 520.16, the defendant shall be eligible for the appointment of counsel regardless of the defendant's financial resources for the detention hearing.

 (D) Limited Representation. Counsel may represent a defendant for the limited purpose of the initial bail determination, review of conditions, or a detention hearing.

Comment

 A defendant may be represented at the initial bail determination. If a judicial district elects to have a representative from the Public Defender's Office at the preliminary arraignment, the bail authority shall appoint the Public Defender, regardless of the defendant's financial resources, to represent the defendant for the purpose of a bail determination, except when the defendant requests to proceed pro se, the defendant has private counsel, or the Public Defender asserts a conflict of interest.

 In the absence of private counsel, counsel will be appointed to represent the defendant for the review of conditions or detention hearing. The process for identifying defendants remaining in detention and requiring the appointment of counsel is a matter of local practice, subject to the time requirement for condition review pursuant to Rules 520.15. For the responsibility of pretrial services for identifying such defendants, see Rule 520.18(F).

 To permit prompt bail determinations, the appointment of counsel should not operate to delay review of conditions or a detention hearing.

 For privately retained counsel, the extent of counsel's representation should be set forth in the entry of appearance. For appointed counsel, the extent of counsel's representation should set forth in the order of appointment or by local rule adopted pursuant to Rule 105 and Pa.R.J.A. No. 103(d).

Part C(1). Release Procedures

Rule 520.6. Release Factors.

 (A) Factors. In determining whether a defendant is bailable and what, if any, conditions to impose consistent with Rule 520.1, the bail authority shall consider all available relevant information, including, but not limited to:

 (1) Current Charge:

 (a) the nature and circumstances of the crime charged;

 (b) whether a firearm or other deadly weapon was involved;

 (c) the possibility and duration of statutorily mandated imprisonment;

 (d) whether the crime charged was committed against a victim with intent to hinder prosecution;

 (e) likelihood of witness intimidation or destruction of evidence by the defendant; and

 (f) the victim's risk of harm by the defendant.

 (2) Personal Information:

 (a) the family ties of the defendant;

 (b) the defendant's employment;

 (c) the length of residence in the community; and

 (d) the defendant's immediate risk of substantial physical self-harm.

 (3) Prior Criminal History:

 (a) record of convictions;

 (b) custody status at time of offense;

 (c) history of compliance with court-ordered probation, parole, and prior bail conditions;

 (d) record of appearances at court proceedings or of flight to avoid prosecution or willful failure to appear at court proceedings.

 (4) Pre-Trial Risk Assessment, if available.

 (5) Whether the prosecution has provided notice seeking pretrial detention pursuant to Rule 520.16.

 (B) Non-Cooperation. A defendant's decision neither to admit culpability nor to assist in an investigation shall not be a reason to impose additional or more restrictive conditions of bail on the defendant.

Comment

 This rule was adopted in 20 __ and is derived, in part, from prior Rule 523.

 To the extent that a pre-trial risk assessment may reflect some of these factors, such as prior criminal history, the bail authority should not assign additional weight to those factors absent compelling reasons for doing so.

 When deciding whether to release a defendant on bail and what conditions of release to impose, the bail authority must consider all the criteria provided in this rule, rather than considering, for example, only the designation of the offense or the fact that the defendant is a nonresident. Generally, the graver an offense involving danger to a person, including those allegedly committed with a firearm, the greater the potential risk to the community upon release. Further, the more severe a potential sentence, the greater the risk of non-appearance.

 ''Custody status'' includes a defendant released on bail, probation, or parole. When a defendant who has been released on bail and awaiting trial is arrested on a second or subsequent charge, the bail authority may consider that factor in conjunction with other release criteria in determining bail for the new charge. For alleged technical violations of a condition of county probation or parole, see Rule 708.1.

 The bail authority may weigh the evidence against the defendant insofar as probable cause exists to believe that defendant committed the acts charged, but no farther regardless of the sufficiency of the evidence.

 When the prosecution has provided notice seeking pretrial detention, a detention hearing may be scheduled. See Rule 520.16 for detention hearing.

Rule 520.7. Least Restrictive Bail Determination.

 The bail determination, including the conditions imposed, shall be the least restrictive to satisfy the purpose of bail, as provided in Rule 520.1.

Comment

 The least restrictive bail determination is release subject to general conditions. Progressively stricter determinations include release on nominal bail with general conditions, release with non-monetary special conditions, and release with monetary conditions. The most restrictive determination is that the defendant is not eligible for bail and is detained.

Rule 520.8. Determination: Release with General Conditions.

 (A) General Conditions. In every case in which a defendant is released on bail, the general conditions of the bail bond shall be that the defendant will:

 (1) appear at all times required until full and final disposition of the case;

 (2) obey all further orders of the bail authority;

 (3) give written notice to the bail authority, the clerk of courts, the district attorney, and the court bail agency or other designated court bail officer, of any change of address within 48 hours of the date of the change;

 (4) neither do, nor cause to be done, nor permit to be done on his or her behalf, any act proscribed by 18 Pa.C.S. § 4952 (relating to intimidation of witnesses or victims) or 18 Pa.C.S. § 4953 (relating to retaliation against witnesses or victims); and

 (5) refrain from criminal activity.

 (B) Bond. The bail authority shall set forth in the bail bond all conditions of release imposed pursuant to this rule.

Comment

 This rule was adopted in 20 __ and is derived, in part, from prior Rule 526.

 All the conditions of the bail bond set forth in paragraph (A) must be imposed in every criminal case in which a defendant is released on bail. If a defendant fails to comply with any of the conditions of the bail bond in paragraph (A), the defendant's bail may be modified or revoked. For additional sanctions for failing to appear in a criminal case when required, see 18 Pa.C.S. § 5124.

Rule 520.9. Determination: Release on Nominal Bail with General Conditions.

 A defendant may be released on a nominal bail and subject to general conditions upon the defendant's depositing $1.00 with the bail authority and the agreement of a designated person, organization, or bail agency to act as surety for the defendant.

Comment

 This rule was adopted in 20 __ and is derived, in part, from prior Rule 524(C)(4).

 Nominal bail may be used as an alternative when it is desirable to have a surety. It may be used when the bail authority believes the defendant poses a risk for non-appearance due to transience or a residence outside of Pennsylvania. The purpose of the surety is to facilitate interstate apprehension of any defendant who absconds by allowing the nominal surety the right to arrest the defendant without the necessity of extradition proceedings. See, e.g., Frisbie v. Collins, 342 U.S. 519 (1952). A bail agency may be the nominal bail surety, as well as private individuals or acceptable organizations. In all cases, the surety on nominal bail incurs no financial liability for the defendant's failure to appear for court.

Rule 520.10. Determination: Release with Non-Monetary Special Conditions.

 (A) Necessity. When general conditions are insufficient, a defendant may be released subject to both general conditions and any non-monetary special conditions necessary to mitigate the defendant's risk of non-appearance, the safety of the community, substantial physical self-harm, or the integrity of the judicial system risk, when the proof is evident and the presumption is great.

 (B) Special Conditions. Non-monetary special conditions may include, but are not limited to, the following:

 (1) remaining in the custody of a designated person;

 (2) maintaining employment, or, if unemployed, actively seeking employment;

 (3) maintaining or commencing an educational program;

 (4) abiding by specified restrictions on personal associations, place of abode, or travel;

 (5) reporting on a regular basis to a designated law enforcement agency, or other agency, or pretrial services program;

 (6) complying with a specified curfew;

 (7) refraining from possessing a firearm, destructive device, or other dangerous weapon;

 (8) refraining from the use of alcohol, or any use of a narcotic drug or other controlled substance without a prescription;

 (9) submission to a medical, psychological, psychiatric, or drug or alcohol dependency assessment;

 (10) compliance with any existing treatment plan or service plan;

 (11) a protective order pursuant to 18 Pa.C.S. § 4954 when a potential risk of witness or victim intimidation is present;

 (12) no contact by the defendant with the victim;

 (13) refraining from entering the residence or household of the victim and the victim's place of employment when there is a potential risk of danger to the victim in a domestic violence case pursuant to 18 Pa.C.S. § 2711(c)(2);

 (14) returning to custody of the person designated in paragraph (B)(1) for specified hours following release for employment, schooling, or other limited purposes;

 (15) being placed in a pretrial home supervision capacity with or without the use of an approved electronic monitoring device; or

 (16) satisfying any other condition that is necessary to reasonably assure the purpose of bail, as provided in Rule 520.1.

Comment

 This rule was adopted in 20 __ and is derived, in part, from prior Rule 527.

 The bail authority may determine that, in addition to general conditions, it is necessary to impose non-monetary special conditions on release to reasonably assure the safety of the community and the defendant from immediate physical self-harm, the defendant's appearance, and integrity of the judicial system. The special conditions should be tailored to the specific risks posed by the defendant's release. The bail authority should clearly state on the bail bond all special conditions of release in specific detail. The availability of pretrial services among judicial districts may vary some conditions.

 The bail authority should consider any reasonable suggestions for non-monetary special conditions of release on bail in an effort to establish the most suitable and least restrictive conditions necessary for a particular defendant. It would be appropriate in some circumstances for the defendant and counsel to offer suggestions about types of conditions that would help the defendant appear and comply with the conditions of the bail bond.

 The following are a few examples of conditions that might be imposed to address specific situations. In some circumstances, a combination of such conditions might also be considered. This is not intended to be an exhaustive list of appropriate conditions.

When the defendant poses a risk of non-appearance, the bail authority could require that the defendant report by phone or in person at specified times to pretrial services, or that the defendant be supervised by pretrial services. Pretrial services may maintain close contact with the defendant, assist the defendant in making arrangements to appear in court, and, if appropriate, accompany the defendant to court. It might also be helpful to require that the defendant maintain employment or continue an educational program.

When the defendant is known to have an alcohol or a drug problem posing an immediate risk of harm to the defendant, the bail authority could require the defendant to submit to drug or alcohol screening, avail to cessation or rehabilitative services as recommended by the screening, and refrain from the use of alcoholic beverages or illegal drugs.

When the defendant has a recent or substantial history of failing to comply with less restrictive conditions of the bail bond, the bail authority might limit travel, restrict the defendant to his or her residence or supervised housing, or place the defendant on electronic monitoring.

There may be cases when the relationship between the defendant and another person is such that the bail authority might require that the defendant refrain from contact with that other person.

 When a case proceeds by summons, the issuing authority must require that the defendant submit to required administrative processing and identification procedures, such as fingerprinting required by the Criminal History Record Information Act, 18 Pa.C.S. § 9112, which ordinarily occur following an arrest. Rule 510(C)(2) requires an order directing the defendant to be fingerprinted be issued with the summons. If the defendant has not completed fingerprinting by the date of the preliminary hearing, completion of these processing procedures must be made a condition of release.

Rule 520.11. Determination: Release with Monetary Conditions.

 (A) Necessity. A bail authority may impose a monetary condition on a defendant's release only when proof is evident and the presumption is great that no non-monetary special conditions exist to satisfy the purpose of bail, as provided in Rule 520.1.

 (B) Securitization. A monetary condition may be secured or unsecured.

 (C) Deposit. The bail authority may require a monetary condition to be secured by either the entire amount or a deposit of a sum of money not to exceed 10% of the full amount of the monetary condition if the bail authority determines that such a deposit is sufficient to ensure the defendant's compliance with non-monetary conditions.

 (D) Amount. The amount of security required for the monetary condition, whether the entire amount or a percentage, shall be reasonably attainable by the defendant.

 (1) A verified financial disclosure form setting forth a defendant's income, expenses, assets, and debts shall be completed whenever the imposition of a monetary condition is deemed necessary.

 (2) The bail authority shall consider the information contained on the form when determining the amount of a monetary condition and the defendant's ability to satisfy that condition.

 (E) Source. The bail authority may inquire as to the defendant's source of security for a monetary condition.

 (F) Risk. The amount of a monetary condition shall be reasonably correlated with the defendant's risk.

 (G) Bail Schedule. The use of a bail schedule is not permitted to determine the amount of a monetary bail condition. The determination shall be based upon the defendant's ability to pay.

 (H) Not in Lieu of Detention. A secured monetary condition shall never be imposed for the sole purpose of detaining a defendant until trial.

 (I) Written Reason. The bail authority shall indicate in writing the specific risk that the monetary bail condition is intended to mitigate.

Comment

 This rule was adopted in 20 __ and is derived, in part, from prior Rule 528.

 The use of a monetary bail condition is permitted only when non-monetary conditions cannot reasonably assure a defendant's release consistent with the purpose of bail. A monetary condition may be used in conjunction with non-monetary special conditions. A monetary condition is intended to incentivize a defendant's willingness to comply with non-monetary conditions by subjecting the amount of the monetary condition to forfeiture. The strength of the incentive, as represented by the amount of a monetary condition, should bear a reasonable relationship with the defendant's risk, which is based, in part, on the severity of the charge. Whether a monetary condition is secured or unsecured is relevant to forfeiture, not incentive.

 Release on an unsecured monetary condition requires the defendant's written agreement to be liable for a fixed sum of money if the defendant fails to comply with the non-monetary special conditions, as well as general conditions. No money or other form of security is required to be deposited for an unsecured monetary condition. Release may be revoked for a defendant who fails to satisfy a liability arising from non-compliance.

 ''Reasonably attainable'' in paragraph (D) should include not only consideration of the amount of the security, but also include the timeliness in which the security can be attained by the defendant.

 A monetary condition shall not be imposed on a defendant unable to satisfy the condition at any amount. See Pa. Const. art. 1, § 13 (excessive bail shall not be required). Under that circumstance, the defendant may be released with sufficient non-monetary special conditions or scheduled for a detention hearing.

 When a defendant is charged with a violation of The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-101 et seq., the bail authority shall inquire as to the source of currency, bonds, realty or other property used to secure the monetary condition. See 42 Pa.C.S. § 5761. Further, for any charge, when the surety is a third party, the security may only be forfeited for a failure of the defendant to appear at a scheduled court proceeding. See Rule 536(A)(2)(a). Third parties sureties are not liable for a defendant's new criminal act or other violations of conditions. Therefore, unless a defendant is the depositor, a secured monetary condition should not be imposed to mitigate any other risk other than a failure to appear.

 For permitted forms of security and related procedures, see Rule 520.14.

Rule 520.12. Statement of Reasons.

 Other than release with general conditions or a release on nominal bail, the bail authority shall provide a recorded or written contemporaneous statement of reasons for any bail determination.

Comment

 The bail authority should identify the specific factors and supporting information relied upon for the determination. This statement is intended to assist in expediting review, if required, and modification of the determination, if warranted. See Rule 520.15 (Condition Review).

Rule 520.13. Bail Bond.

 (A) Written Agreement. A bail bond is a document whereby the defendant agrees to comply with all the imposed conditions of the bail while at liberty after being released on bail.

 (B) Timing. At the time the bail is set, the bail authority shall:

 (1) have the bail bond prepared; and

 (2) sign the bail bond verifying the imposed conditions.

 (C) Conditions. The bail bond shall set forth the determination of bail, including the general conditions set forth in Rule 520.8, any other conditions ordered by the bail authority, and the consequences of failing to comply with all the conditions of the bail bond.

 (D) Defendant's Signature. The defendant shall not be released until he or she signs the bail bond.

 (E) Other Signatures. To be released, the defendant shall sign the bail bond. Sureties shall also sign the bond when a monetary condition has been imposed. The official who releases the defendant also shall sign the bail bond witnessing the defendant's signature.

 (F) Detention. If the defendant is unwilling to agree to comply with all the imposed conditions of the bail at the time bail is set, then the bail authority shall detain the defendant. The unexecuted bail bond and the other necessary paperwork shall accompany the defendant to the place of incarceration.

 (G) Recording. After the defendant signs the bail bond, a copy of the bail bond shall be given to the defendant, and the original shall be included in the record.

Comment

 This rule was adopted in 20 __ and is derived, in part, from prior Rule 525.

 Paragraph (G) requires the court official who accepts a deposit of bail and has the defendant sign the bail bond to include the original of the bail bond in the record of the case. See Rule 535(A) for the other contents of the record in the context of the bail deposit.

 For some of the consequences when a defendant fails to appear or fails to comply as required, see the Crimes Code, 18 Pa.C.S. § 5124. See also Rule 536.

Rule 520.14. Secured Monetary Conditions—Security; Recording; Liability.

 (A) Security. One or a combination of the following forms of security shall be accepted to satisfy a monetary condition:

 (1) Cash or when permitted by the local court a cash equivalent.

 (2) Bearer bonds of the United States Government, of the Commonwealth of Pennsylvania, or of any political subdivision of the Commonwealth, in the full amount of the monetary condition, provided that the defendant or the surety files with the bearer bond a sworn schedule that shall verify the value and marketability of such bonds, and that shall be approved by the bail authority.

 (3) Realty located anywhere within the Commonwealth, including realty of the defendant, as long as the actual net value is at least equal to the full amount of the monetary condition. The actual net value of the property may be established by considering, for example, the cost, encumbrances, and assessed value, or another valuation formula provided by statute, ordinance, or local rule of court. Realty held in joint tenancy or tenancy by the entirety may be accepted provided all joint tenants or tenants by the entirety execute the bond.

 (4) Realty located anywhere outside of the Commonwealth but within the United States, provided that the person(s) posting such realty shall comply with all reasonable conditions designed to perfect the lien of the county in which the prosecution is pending.

 (5) The surety bond of a professional bondsman licensed under the Judicial Code, 42 Pa.C.S. §§ 5741—5749, or of a surety company authorized to do business in the Commonwealth of Pennsylvania.

 (B) Recording. The bail authority shall record on the bail bond the amount of the monetary condition imposed and the form of security that is posted by the defendant or by an individual acting on behalf of the defendant or acting as a surety for the defendant.

 (C) Liability of Depositor. Except as limited in Rule 531, the defendant or another person may deposit the cash percentage of the bail. If the defendant posts the money, the defendant shall sign the bond, thereby becoming his or her own surety, and is liable for the full amount of bail if he or she fails to appear or to comply. When a person other than the defendant deposits the cash percentage of the bail, the clerk of courts or issuing authority shall explain and provide written notice to that person that:

 (1) if the person agrees to act as a surety and signs the bail bond with the defendant, the person shall be liable for the full amount of bail if the defendant fails to appear; or

 (2) if the person does not wish to be liable for the full amount of bail, the person shall be permitted to deposit the money for the defendant to post, and will relinquish the right to make a subsequent claim for the return of the money pursuant to these rules. In this case, the defendant would be deemed the depositor, and only the defendant would sign the bond and be liable for the full amount of bail.

 (3) Pursuant to Rule 535(E), if the bail was deposited by or on behalf of the defendant and the defendant is the named depositor, the amount otherwise returnable to the defendant may be used to pay and satisfy any outstanding restitution, fees, fines, and costs owed by the defendant as a result of a sentence imposed in the court case for which the deposit is being made.

Comment

 This rule was adopted in 20 __ and is derived, in part, from prior Rule 528(D)—(F).

 When the bail authority authorizes the deposit of a percentage of the cash bail, the defendant may satisfy the monetary condition by depositing, or having an individual acting as a surety on behalf of the defendant deposit, the full amount of the monetary condition. Additionally, there may be cases when a defendant does not have the cash to satisfy a monetary condition, but has some other form of security, such as realty. In such a case, the defendant must be permitted to execute a bail bond for the full amount of the monetary condition and deposit one of the forms or a combination of the forms set forth in paragraph (A) as security.

 If a percentage of the cash bail is accepted pursuant to these rules, when the funds are returned at the conclusion of the defendant's bail period, the court or bail agency may retain as a fee an amount reasonably related to the cost of administering the cash bail program. See Schilb v. Kuebel, 404 U.S. 357 (1971).

 Pursuant to paragraph (C), written notice is required be given to the person posting the bail, especially a third party, of the possible consequences if the defendant receives a sentence that includes restitution, a fine, fees, and costs. See also Rule 535 for the procedures for retaining bail money for satisfaction of outstanding restitution, fines, fees, and costs.

 The defendant must be permitted to substitute the form(s) of security deposited as provided in Rule 532.

 The method of valuation when realty is offered to satisfy the monetary condition pursuant to paragraphs (A)(3) and (A)(4) is determined at the local level. If no satisfactory basis exists for valuing particular tracts of offered realty, especially tracts located in remote areas, acceptance of that realty is not required by this rule.

Rule 520.15. Condition Review.

 If a defendant remains detained after 48 hours following the initial bail determination because the defendant has not satisfied a bail condition, then a review of conditions shall be conducted no longer than 72 hours, or the close of the next business day if the 72 hours expires on a non-business day, after the initial bail determination by a designated bail authority, subject to:

 (A) The defendant shall be appointed counsel for the condition review.

 (B) The bail authority shall reconsider whether the initially imposed condition is the least restrictive bail condition reasonably calculated to meet the purpose of bail, as provide in Rule 520.1.

 (C) The defendant, defendant's counsel, and the Commonwealth may appear via audio-visual communication technology.

 (D) The parties may present additional information to the bail authority for reconsideration of the initial determination.

 (E) Upon review, a bail authority may modify the bail order establishing the initial bail determination.

Comment

 This rule is applicable to defendants who are able to be released subject to conditions. Condition review proceedings are intended to afford defendants detained due to an unsatisfied bail condition an expedited review of the initial bail determination. Nothing in this rule is intended to prevent a judicial district from conducting a review prior to the 72-hour threshold. Jail staff or pretrial services should identify defendants remaining in detention after the initial determination. While time is of the essence, the failure to conduct a review within the time specified in paragraph (A) shall not operate to release the defendant.

 See Rule 520.5 for right to counsel. The Commonwealth may, but is not required to, appear.

 An unsatisfied bail condition does not mean that the condition is not reasonably calculated to meet the purpose of bail. This review is to consider whether a less restrictive condition may be available that will meet the purpose of bail.

 As designated by the president judge, a review may be conducted by the original bail authority or another judge sitting as a bail authority. Any further modification of a bail order modified subject to this rule or modification of a bail order not subject to this rule shall proceed in accordance with Rule 520.17.

Rule 520.16. Detention.

 (A) Permitted Bases for Detention. All defendants shall be released subject to conditions except when proof is evident and presumption is great of:

 (1) Offense. Capital offenses or for offenses for which the maximum sentence is life imprisonment; or

 (2) No Condition. No available condition or combination of conditions other than detention will reasonably assure that a defendant's release is consistent with the purpose of bail, as provided in Rule 520.1.

 (B) Offense Basis.

 (1) Temporary Detention. A defendant charged with a qualifying offense pursuant to paragraph (A)(1) shall be ordered temporarily detained at the defendant's first appearance until a detention hearing can be held before a judge of the court of common pleas or a judge of the Philadelphia Municipal Court.

 (2) Detention Hearing. A detention hearing before a judge of the court of common pleas or a judge of the Philadelphia Municipal Court shall be scheduled to occur within 72 hours of the defendant's first appearance.

 (C) No Condition Basis. At a defendant's first appearance, a bail authority, may sua sponte, and shall, when requested by the Commonwealth, inquire and determine whether no available condition or combination of conditions exist other than detention pursuant to paragraph (A)(2).

 (1) Bail Authority Notice. A bail authority, possessing a reasonable belief that no available condition or combination of conditions may exist other than detention, shall give notice of such to the defendant and the prosecution at the time of the defendant's first appearance. Notice shall include the initial reason(s) for seeking detention.

 (2) Commonwealth Notice and Request: The Commonwealth may give notice, either orally or in writing, no later than the time of the defendant's first appearance that it requests the bail authority inquire and determine that no available condition or combination of conditions may exist other than detention and shall set forth the basis for the request. Notice shall include the initial reason(s) for seeking detention.

 (3) Temporary Detention. Upon such notice, the bail authority shall permit the defendant or defendant's counsel, and the Commonwealth to address the court on the issue. If, after argument, upon a sufficient showing that no condition or combination of conditions will assure the purposes of bail, a bail authority shall order the temporary detention of the defendant until a detention hearing can be held.

 (4) Scheduling. The detention hearing shall be scheduled to occur no later than 48 hours from the defendant's first appearance. The parties may seek a single three-day continuance of the hearing for cause or by agreement.

 (5) Defendant's Statements: Any statement made by the defendant after notice is given by a bail authority or the Commonwealth for the purpose of securing release during the first appearance shall not be admissible against the defendant in any criminal proceeding or at trial except for the purpose of impeachment, nor shall any evidence derived from that statement be admissible.

 (D) Counsel. The defendant shall be appointed counsel for the detention hearing.

 (E) No Default. The failure to conduct a detention hearing in the time prescribed by this rule shall not result in the defendant's release.

 (F) Written Reason. The bail authority shall indicate in writing the reason(s) for detaining a defendant following the hearing.

 (G) Subsequent Review.

 (1) Offense Basis. A defendant ordered detained on the basis of a charged offense following a detention hearing may seek review of that order pursuant to Pa.R.A.P. 1762.

 (2) No Condition Basis. A defendant ordered detained on the basis of no available condition following a detention hearing may seek modification of the order pursuant to Pa.R.Crim.P. 520.17(C) by motion to a judge of the court of common pleas.

Comment

 For permitted bases of detention, see Pa. Const. art. 1, § 14. Detention may also subsequently be sought through a modification of the bail order pursuant to Rule 520.17.

 The temporary detention permitted by paragraphs (B) or (C) is to allow the scheduling of a detention hearing, appointment of counsel for the defendant, and the consultation and preparation of the defendant and defendant's counsel. Nothing in this rule is intended to delay the issuing authority from addressing other matters scheduled to occur at a defendant's first appearance. See generally County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (requiring probable cause determination for detention within 48 hours of arrest); Pa.R.Crim.P. 540(E) (requiring determination of probable cause when defendant is arrested without a warrant; otherwise defendant shall not be detained).

 Murder of the first or second degree, 18 Pa.C.S. § 2502(a)-(b), murder of an unborn child of the first or second degree, 18 Pa.C.S. § 2604(a)-(b), and murder of a law enforcement officer of the first or second degree, 18 Pa.C.S. § 2507(a)-(b), are offenses subject to paragraph (A)(1). See 18 Pa.C.S. §§ 1102(a)-(b) & 1102.1(a), (c). Given the gravity of the underlying charges and potential for life imprisonment, the defendant's initial bail determination is to be made by a judge of the court of common pleas. See also 42 Pa.C.S. § 1515(a)(4) (requiring bail determination for certain offenses, including murder, to be performed by a judge of the court of common pleas).

Rule 520.17. Modification of Bail Order Prior to Verdict.

 (A) Permitted Modification. A bail order may be modified at any time before the preliminary hearing by:

 (1) The issuing authority who is the magisterial district judge who was elected or assigned to preside over the jurisdiction where the crime occurred, upon request of the defendant or the attorney for the Commonwealth, or by the issuing authority sua sponte, and after notice to the defendant and the attorney for the Commonwealth and an opportunity to be heard; or

 (2) A bail authority sitting by designation and pursuant to Rule 520.15.

 (B) Issuing Authority. A bail order may be modified by an issuing authority at the preliminary hearing.

 (C) Judge. The existing bail order may be modified by a judge of the court of common pleas:

 (1) at any time prior to verdict upon motion of counsel for either party with notice to opposing counsel and after a hearing on the motion; or

 (2) at trial or at a pretrial hearing in open court on the record when all parties are present.

 (D) Further Modification. Once bail has been set or modified by a judge of the court of common pleas, it shall not be modified except:

 (1) by a judge of a court of superior jurisdiction, or

 (2) by the same judge or by another judge of the court of common pleas either at trial or after notice to the parties and a hearing.

 (E) Explanation. When bail is modified pursuant to this rule, the modification shall be explained to the defendant and stated in writing or on the record by the issuing authority or the judge.

Comment

 This rule is derived, in part, from prior Rule 529.

 In making a decision whether to modify a bail order, the issuing authority or judge should evaluate the information about the defendant as it relates to the bail factors and conditions.

 In Municipal Court cases, the Municipal Court judge may modify bail in the same manner as a common pleas judge may under this rule. See Rule 1011.

 Once bail has been modified by a common pleas judge, only the common pleas judge subsequently may modify bail, even in cases that are pending before a magisterial district judge. See Rules 543 and 536.

 Pursuant to this rule, the motion, notice, and hearing requirements in paragraphs (C) and (D) must be followed in all cases before a common pleas judge may modify a bail order unless the modification is made on the record in open court when all parties are present either at a pretrial hearing, such as a suppression hearing, or during trial.

 See Pa.R.A.P. 1762 for the procedures to obtain appellate court review of an order of a judge of the court of common pleas granting or denying release, or modifying the conditions of release.

Rule 520.18. Responsibilities of Pretrial Services.

 A president judge may establish pretrial services, and subject to the supervision of the president judge or designee, such services, at a minimum, shall be responsible for:

 (A) Advising the president judge on the feasibility of adopting and maintaining a validated risk assessment tool and recommendation matrix.

 (B) Preparing and disseminating pretrial risk assessments, if adopted.

 (C) Reminding every defendant on release at least once of an upcoming court appearance within 48 hours of the scheduled appearance.

 (D) Establishing capacity for telephonic and in-person reporting of defendants on release when reporting is a condition of release.

 (E) Identifying and referring defendants with mental health and alcohol/substance abuse issues posing an immediate risk to the defendant for appropriate services.

 (F) Identifying, monitoring, and reporting any defendants remaining in detention 48 hours after the initial bail determination.

Comment

 The provision of pretrial services is a best practice, but not a requirement. While limitations may be placed on the range of available pretrial services due to resource constraints, this rule imposes minimum responsibilities for the provision of those services.

 In paragraph (C), reminders may include telephone calls, email, or text messaging. Depending on the method of communication, additional contact information may need to be collected at the time of the initial bail determination.

 Providers of pretrial services should be encouraged to affiliate with a professional organization such as the Pennsylvania Pretrial Services Association to exchange information, participate in educational programs, and share best practices.

Rule 520.19. Pretrial Risk Assessment Tool Parameters.

 A president judge may authorize the adoption and use of a pretrial risk assessment tool by local rule, subject to these parameters:

 (A) The pretrial risk assessment shall be conducted in all criminal cases prior to the preliminary arraignment or, when a preliminary arraignment is not held, the preliminary hearing.

 (B) At a minimum, the pretrial risk assessment tool shall determine a risk of failure to appear and new criminal activity.

 (C) The pretrial risk assessment tool shall be statistically validated prior to adoption and at an established interval thereafter to demonstrate racial and gender neutrality, and meet a minimum level of predictability of no less than 70%. Validation reports shall be made public.

 (D) A report of aggregate outcomes of pretrial risk shall be made public at least annually following adoption of a pretrial risk assessment tool.

 (E) At a minimum, the pretrial risk assessment tool shall classify risk of pretrial failure as high, moderate, and low risk. Further sub-classifications are subject to local option. Risk classifications shall be described to users in terms of success.

 (F) The person, department, or agency responsible for completing the assessment shall be designated by local order or rule.

 (G) The bail authority, defendant, defendant's counsel if known, and the Commonwealth shall receive the pretrial risk assessment report and bail recommendation. Reports for individual defendants shall not be publically accessible.

 (H) A bail recommendation based upon a pretrial risk assessment tool shall be clearly marked as advisory of release and bail conditions.

 (I) A bail recommendation based upon a pretrial risk assessment tool shall not be the sole determinate for making a bail determination.

Comment

 For local procedural rulemaking, see Rule 105 and Pa.R.J.A. No. 103(d).

 Pursuant to paragraph (B), a judicial district is not restricted in the use of a pretrial risk assessment for only determining a risk of failure to appear and new criminal activity. A judicial district may also use a pretrial risk assessment tool to determine the risk of domestic violence and new violent criminal activity, provided the tool satisfies the other parameters set forth in this rule.

 Prior to implementation of a pretrial risk assessment tool, the judicial district should establish a baseline for the rate of pretrial failure in the category of non-appearance and new criminal activity. This baseline then can be compared to the incidence of pretrial failure after implementation. The requirement of paragraph (D) is intended to report annually the rate of pretrial failure. Such reports can be helpful in determining whether the use of a pretrial risk assessment tool has affected the historical rate of pretrial failure.

 Reports generated by pretrial risk assessment tools may contain confidential information about a defendant that is necessary for the bail authority to make an informed bail determination. Pursuant to paragraph (G), those reports are available to the parties, but not publically accessible. However, the recommended bail determination and any conditions based upon the report are publically accessible, provided the recommendation is separate from the report.

 As set forth in paragraph (H), a bail recommendation based upon a pretrial risk assessment tool is advisory. Per paragraph (I), the recommendation is intended to inform the bail authority, not dictate an outcome.

CHAPTER 7. POST-TRIAL PROCEDURES
IN COURT CASES

PART A. Sentencing Procedures

Rule 708. [Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition] Rescinded and Renumbered.

 [(A) A written request for revocation shall be filed with the clerk of courts.

 (B) Whenever a defendant has been sentenced to probation or intermediate punishment, or placed on parole, the judge shall not revoke such probation, intermediate punishment, or parole as allowed by law unless there has been:

 (1) a hearing held as speedily as possible at which the defendant is present and represented by counsel; and

 (2) a finding of record that the defendant violated a condition of probation, intermediate punishment, or parole.

 (C) Before the imposition of sentence,

 (1) the defendant may plead guilty to other offenses that the defendant committed within the jurisdiction of the sentencing court.

 (2) When such pleas are accepted, the court shall sentence the defendant for all the offenses.

 (D) Sentencing Procedures

 (1) At the time of sentencing, the judge shall afford the defendant the opportunity to make a statement in his or her behalf and shall afford counsel for both parties the opportunity to present information and argument relative to sentencing.

 (2) The judge shall state on the record the reasons for the sentence imposed.

 (3) The judge shall advise the defendant on the record:

 (a) of the right to file a motion to modify sentence and to appeal, of the time within which the defendant must exercise those rights, and of the right to assistance of counsel in the preparation of the motion and appeal; and

 (b) of the rights, if the defendant is indigent, to proceed in forma pauperis and to proceed with assigned counsel as provided in Rule 122.

 (4) The judge shall require that a record of the sentencing proceeding be made and preserved so that it can be transcribed as needed. The record shall include:

 (a) the record of any stipulation made at a pre-sentence conference; and

 (b) a verbatim account of the entire sentencing proceeding.

 (E) Motion to Modify Sentence

 A motion to modify a sentence imposed after a revocation shall be filed within 10 days of the date of imposition. The filing of a motion to modify sentence will not toll the 30-day appeal period.

Comment

 This rule addresses Gagnon II revocation hearings only, and not the procedures for determining probable cause (Gagnon I). See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

 Paragraph (A) requires that the Gagnon II proceeding be initiated by a written request for revocation filed with the clerk of courts.

 The judge may not revoke probation or parole on arrest alone, but only upon a finding of a violation thereof after a hearing, as provided in this rule. However, the judge need not wait for disposition of new criminal charges to hold such hearing. See Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973).

 This rule does not govern parole cases under the jurisdiction of the Pennsylvania Board of Probation and Parole, but applies only to the defendants who can be paroled by a judge. See 61 P.S. § 314. See also Georgevich v. Court of Common Pleas of Allegheny County, 510 Pa. 285, 507 A.2d 812 (1986).

 This rule was amended in 1996 to include sentences of intermediate punishment. See 42 Pa.C.S. §§ 9763 and 9773. Rules 704, 720, and 721 do not apply to revocation cases.

 The objective of the procedures enumerated in paragraph (C) is to enable the court to sentence the defendant on all outstanding charges within the jurisdiction of the sentencing court at one time. See Rule 701.

 When a defendant is permitted to plead guilty to multiple offenses as provided in paragraph (C), if any of the other offenses involves a victim, the sentencing proceeding must be delayed to afford the Commonwealth adequate time to contact the victim(s), and to give the victim(s) an opportunity to offer prior comment on the sentencing or to submit a written and oral victim impact statement. See the Crime Victims Act, 18 P.S. § 11.201(5).

 Issues properly preserved at the sentencing proceeding need not, but may, be raised again in a motion to modify sentence in order to preserve them for appeal. In deciding whether to move to modify sentence, counsel must carefully consider whether the record created at the sentencing proceeding is adequate for appellate review of the issues, or the issues may be waived. See Commonwealth v. Jarvis, 444 Pa. Super. 295, 663 A.2d 790, 791-2, n.1 (1995). As a general rule, the motion to modify sentence under paragraph (E) gives the sentencing judge the earliest opportunity to modify the sentence. This procedure does not affect the court's inherent powers to correct an illegal sentence or obvious and patent mistakes in its orders at any time before appeal or upon remand by the appellate court. See, e.g., Commonwealth v. Jones, 520 Pa. 385, 554 A.2d 50 (1989) (sentencing court can, sua sponte, correct an illegal sentence even after the defendant has begun serving the original sentence) and Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970) (inherent power of the court to correct obvious and patent mistakes).

 Under this rule, the mere filing of a motion to modify sentence does not affect the running of the 30-day period for filing a timely notice of appeal. Any appeal must be filed within the 30-day appeal period unless the sentencing judge within 30 days of the imposition of sentence expressly grants reconsideration or vacates the sentence. See Commonwealth v. Coleman, 721 A.2d 798, 799, fn.2 (Pa. Super. 1998). See also Pa.R.A.P. 1701(b)(3).

 Once a sentence has been modified or re-imposed pursuant to a motion to modify sentence under paragraph (E), a party wishing to challenge the decision on the motion does not have to file an additional motion to modify sentence in order to preserve an issue for appeal, as long as the issue was properly preserved at the time sentence was modified or re-imposed.

 Official Note

 Former Rule 1409 adopted July 23, 1973, effective 90 days hence; amended May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978; Comment revised November 1, 1991, effective January 1, 1992; amended September 26, 1996, effective January 1, 1997; Comment revised August 22, 1997, effective January 1, 1998; renumbered Rule 708 and amended March 1, 2000, effective April 1, 2001; amended February 26, 2002, effective July 1, 2002; amended March 15, 2013, effective May 1, 2013.

 Committee Explanatory Reports:

 Report explaining the January 1, 1992 amendments published at 21 Pa.B. 2246 (May 11, 1990); Supplemental Report published with the Court's Order at 21 Pa.B. 5329 (November 16, 1991).

 Final Report explaining the September 26, 1996 amendments published with the Court's Order at 26 Pa.B. 4900 (October 12, 1996).

 Final Report explaining the August 22, 1997 Comment revision that cross-references Rule 721 published with the Court's Order at 27 Pa.B. 4553 (September 6, 1997).

 Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. 1478 (March 18, 2000).

 Final Report explaining the February 26, 2002 amendments concerning the 30-day appeal period published with the Court's Order at 32 Pa.B. 1394 (March 16, 2002).

 Final Report explaining the March 15, 2013 amendments to paragraph (C) concerning multiple guilty pleas and the Comment concerning the Crime Victims Act published at 43 Pa.B. 1705 (March 30, 2013).]

 (Editor's Note: The following rule is proposed to be added and printed in regular type to enhance readability.)

Rule 708.1. Violation of Probation or Parole: Notice, Detainer, Gagnon I Hearing, Disposition, and Swift Sanction Program.

 (A) Technical Violation. Upon belief that the defendant has violated a technical condition of probation or parole, the authority supervising the defendant may:

 (1) serve a written notice upon the defendant containing a time and location for the defendant's appearance before the supervising judge for a revocation hearing under Rule 708.2;

 (2) arrest the defendant pursuant to 42 Pa.C.S. § 9771.1; or

 (3) lodge a detainer subject to paragraph (C).

 (B) New Criminal Charge. Following institution of a new criminal charge against the defendant, the authority supervising the defendant may:

 (1) serve written notice for a hearing pursuant to paragraph (A)(1); or

 (2) lodge a detainer subject to paragraph (C) if:

 (i) the defendant requests; or

 (ii) the defendant is not detained on the new criminal charge pursuant to Rule 520.16; and

 (iii) the supervising authority believes the defendant has committed a technical violation beyond the fact of the new criminal charge.

 (C) Detainer. Unless a defendant requests, a detainer shall not be lodged unless the supervising authority believes the alleged conduct resulting in the technical violation creates an ongoing risk to the public's safety, to the defendant's safety, or of non-appearance at the revocation hearing. In all other cases, the supervising authority shall serve written notice for a hearing pursuant to paragraph (A)(1).

 (D) Gagnon I Hearing. Unless a defendant has requested a detainer pursuant to paragraph (B)(2)(i), a defendant subject to a detainer for a technical violation pursuant to paragraph (A)(3) or (B)(2) shall be brought before the sentencing judge or other designated judge or authority no later than 14 days after detention for a hearing to determine whether probable cause exists to believe that a violation has been committed and if the defendant can be released on any available condition. If hearing is not held within this time period, the detainer shall expire by operation of law.

 (E) Disposition. Upon a judicial finding of the existence of such probable cause under paragraph (D), the authority supervising the defendant may file a request to revoke probation or parole pursuant to Rule 708.2(A).

 (F) Swift Sanction Program. A defendant arrested pursuant to paragraph (A)(2) may proceed in accordance with 42 Pa.C.S. § 9771.1 and local rule.

Comment

 This rule addresses the lodging and review of detainers, and the ''Gagnon I'' procedures for determining probable cause, see Gagnon v. Scarpelli, 411 U.S. 778 (1973).

 Factors when evaluating risk pursuant to paragraph (C) include, but are not limited to, the seriousness of the alleged violation such as a new criminal charge involving the use of a weapon or physical assault, the immediate risk of self-harm due to non-compliance with terms of probation or parole, and the defendant's compliance history while under supervision, including reporting.

 At the hearing pursuant to paragraph (D), if probable cause exists, the issue is not whether the defendant should be released on the new charge—that is determined by the bail authority. Rather, the question is whether the defendant should continue to be detained, consistent with paragraph (C), until such time as a revocation hearing can be conducted.

Rule 708.2. Violation of Probation [, Intermediate Punishment,] or Parole: Gagnon II Hearing and Disposition.

 A. Revocation Request. A written request for revocation shall be filed with the clerk of courts.

 B. Record Hearing. Whenever a defendant has been sentenced to probation or placed on parole, the judge shall not revoke such probation or parole as allowed by law unless there has been:

 1. a hearing held as speedily as possible at which the defendant is present and represented by counsel; and

 2. a finding of record that the defendant violated a condition of probation or parole.

 C. Plea. Before the imposition of sentence,

 1. the defendant may plead guilty to other offenses that the defendant committed within the jurisdiction of the sentencing court.

 2. When such pleas are accepted, the court shall sentence the defendant for all the offenses.

 D. Sentencing Procedures.

 1. At the time of sentencing, the judge shall afford the defendant the opportunity to make a statement [in] on his or her behalf and shall afford counsel for both parties the opportunity to present information and argument relative to sentencing.

 2. The judge shall state on the record the reasons for the sentence imposed.

 3. The judge shall advise the defendant on the record:

 (a) of the right to file a motion to modify sentence and to appeal, of the time within which the defendant must exercise those rights, and of the right to assistance of counsel in the preparation of the motion and appeal; and

 (b) of the rights, if the defendant is indigent, to proceed in forma pauperis and to proceed with assigned counsel as provided in Rule 122.

 4. The judge shall require that a record of the sentencing proceeding be made and preserved so that it can be transcribed as needed. The record shall include:

 (a) the record of any stipulation made at a pre-sentence conference; and

 (b) a verbatim account of the entire sentencing proceeding.

 E. Motion to Modify Sentence. A motion to modify a sentence imposed after a revocation shall be filed within 10 days of the date of imposition. The filing of a motion to modify sentence will not toll the 30-day appeal period.

Comment

 This rule addresses Gagnon II revocation hearings. [only, and not the procedures for determining probable cause (Gagnon I)]. See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

 Paragraph (A) requires that the Gagnon II proceeding be initiated by a written request for revocation filed with the clerk of courts.

 The judge may not revoke probation or parole on arrest alone, but only upon a finding of a violation thereof after a hearing, as provided in this rule. However, the judge need not wait for disposition of new criminal charges to hold such hearing. See Commonwealth v. Kates, [452 Pa. 102,] 305 A.2d 701 (Pa. 1973).

 This rule does not govern parole cases under the jurisdiction of the Pennsylvania Board of Probation and Parole, but applies only to the defendants who can be paroled by a judge. See 61 P.S. § 314. See also Georgevich v. Court of Common Pleas of Allegheny County, [510 Pa. 285,] 507 A.2d 812 (Pa. 1986).

 [This rule was amended in 1996 to include sentences of intermediate punishment. See 42 Pa.C.S. §§ 9763 and 9773.] Rules 704, 720, and 721 do not apply to revocation cases.

 The objective of the procedures enumerated in paragraph (C) is to enable the court to sentence the defendant on all outstanding charges within the jurisdiction of the sentencing court at one time. See Rule 701.

 When a defendant is permitted to plead guilty to multiple offenses as provided in paragraph (C), if any of the other offenses involves a victim, the sentencing proceeding must be delayed to afford the Commonwealth adequate time to contact the victim(s), and to give the victim(s) an opportunity to offer prior comment on the sentencing or to submit a written and oral victim impact statement. See [the] Crime Victims Act, 18 P.S. § 11.201(5).

 Issues properly preserved at the sentencing proceeding may, but need not, [but may,] be raised again in a motion to modify sentence in order to preserve them for appeal. In deciding whether to move to modify sentence, counsel must carefully consider whether the record created at the sentencing proceeding is adequate for appellate review of the issues, or the issues may be waived. See Commonwealth v. Jarvis, [444 Pa. Super. 295,] 663 A.2d 790, 791-2, n.1 (Pa. Super. 1995). As a general rule, the motion to modify sentence under paragraph (E) gives the sentencing judge the earliest opportunity to modify the sentence. This procedure does not affect the court's inherent powers to correct an illegal sentence or obvious and patent mistakes in its orders at any time before appeal or upon remand by the appellate court. See, e.g., Commonwealth v. Jones, [520 Pa. 385,] 554 A.2d 50 (Pa. 1989) (sentencing court can, sua sponte, correct an illegal sentence even after the defendant has begun serving the original sentence) and Commonwealth v. Cole, [437 Pa. 288,] 263 A.2d 339 (Pa. 1970) (inherent power of the court to correct obvious and patent mistakes).

 Under this rule, the mere filing of a motion to modify sentence does not affect the running of the 30-day period for filing a timely notice of appeal. Any appeal must be filed within the 30-day appeal period unless the sentencing judge within 30 days of the imposition of sentence expressly grants reconsideration or vacates the sentence. See Commonwealth v. Coleman, 721 A.2d 798, 799, [f]n.2 (Pa. Super. 1998). See also Pa.R.A.P. 1701(b)(3).

 Once a sentence has been modified or re-imposed pursuant to a motion to modify sentence under paragraph (E), a party wishing to challenge the decision on the motion does not have to file an additional motion to modify sentence in order to preserve an issue for appeal, as long as the issue was properly preserved at the time sentence was modified or re-imposed.

CHAPTER 10. RULES OF CRIMINAL
PROCEDURE FOR THE PHILADELPHIA MUNICIPAL COURT AND THE PHILADELPHIA MUNICIPAL COURT TRAFFIC DIVISION

PART A. Philadelphia Municipal Court Procedures

Rule 1003. Procedure in Non-Summary Municipal Court Cases.

 (A) [INITIATION OF CRIMINAL PROCEEDINGS] Initiation of Criminal Proceedings.

 (1) Criminal proceedings in court cases shall be instituted by filing a written complaint, except that proceedings may be also instituted by:

 (a) an arrest without a warrant when a felony or misdemeanor is committed in the presence of the police officer making the arrest; or

 (b) an arrest without a warrant upon probable cause when the offense is a misdemeanor not committed in the presence of the police officer making the arrest, when the arrest without a warrant is specifically authorized by law; or

 (c) an arrest without a warrant upon probable cause when the offense is a felony.

 (2) Private Complaints.

 (a) When the affiant is not a law enforcement officer, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove it without unreasonable delay.

 (b) If the attorney for the Commonwealth:

 (i) approves the complaint, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority;

 (ii) disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter, the affiant may petition the President Judge of Municipal Court, or the President Judge's designee, for review of the decision. Appeal of the decision of the Municipal Court shall be to the Court of Common Pleas.

 (B) [CERTIFICATION OF COMPLAINT] Certification of Complaint.

 Before an issuing authority may issue process or order further proceedings in a Municipal Court case, the issuing authority shall ascertain and certify on the complaint that:

 (1) the complaint has been properly completed and executed; and

 (2) when prior submission to an attorney for the Commonwealth is required, an attorney has approved the complaint.

 The issuing authority shall then accept the complaint for filing, and the case shall proceed as provided in these rules.

 (C) [SUMMONS AND ARREST WARRANT PROCEDURES] Summons and Arrest Warrant Procedures.

 When an issuing authority finds grounds to issue process based on a complaint, the issuing authority shall:

 (1) issue a summons and not a warrant of arrest when [the offense charged is punishable by imprisonment for a term of not more than 1 year] the most serious offense charged is a misdemeanor of the second degree or a misdemeanor of the first degree in cases arising under 75 Pa.C.S. § 3802, except as set forth in paragraph (C)(2);

 (2) issue a warrant of arrest when:

 (a) [the offense charged is punishable by imprisonment for a term of more than 5 years] one or more of the offenses charged is a felony or murder;

 (b) the issuing authority has reasonable grounds for believing that the defendant will not obey a summons;

 (c) the summons has been returned undelivered;

 (d) a summons has been served and disobeyed by a defendant;

 (e) the identity of the defendant is unknown; or

 [(f) a defendant is charged with more than one offense, and one of the offenses is punishable by imprisonment for a term of more than 5 years; or]

 (3) when the offense charged does not fall within the categories specified in paragraph (C)(1) or (2), the issuing authority may, in his or her discretion, issue a summons or a warrant of arrest.

 (D) [PRELIMINARY ARRAIGNMENT] Preliminary Arraignment.

 (1) Except as provided in paragraph (D)(2), [W]when a defendant has been arrested within Philadelphia County in a Municipal Court case, with or without a warrant, the defendant shall be afforded a preliminary arraignment by an issuing authority without unnecessary delay.

 (2) The arresting officer shall promptly release from custody a defendant who has been arrested without a warrant, rather than taking the defendant before the issuing authority, when the following conditions have been met:

 (a) the most serious offense charged is a misdemeanor of the second degree or a misdemeanor of the first degree in cases arising under 75 Pa.C.S. § 3802;

 (b) the defendant poses no threat of immediate physical harm to any other person or to himself or herself; and

 (c) the arresting officer has reasonable grounds to believe that the defendant will appear as required.

 When a defendant is released pursuant to paragraph (D)(2), a complaint shall be filed against the defendant within five days of the defendant's release. Thereafter, the issuing authority shall issue a summons, not a warrant of arrest, and shall proceed as provided in Rule 510.

 (3) If the defendant was arrested without a warrant pursuant to paragraph (A)(1)(a) or (A)(1)(b), unless the issuing authority makes a determination of probable cause, the defendant shall not be detained.

 [(2)] (4) In the discretion of the issuing authority, the preliminary arraignment of the defendant may be conducted by using two-way simultaneous audio-visual communication. When counsel for the defendant is present, the defendant must be permitted to communicate fully and confidentially with defense counsel immediately prior to and during the preliminary arraignment.

 [(3)] (5) At the preliminary arraignment, the issuing authority:

 (a) shall not question the defendant about the offense(s) charged;

 (b) shall give the defendant's attorney, or if unrepresented the defendant, a copy of the certified complaint;

 (c) if the defendant was arrested with a warrant, the issuing authority shall provide the defendant's attorney, or if unrepresented the defendant with copies of the warrant and supporting affidavit(s) at the preliminary arraignment, unless the warrant and affidavit(s) are not available at that time, in which event the defendant's attorney, or if unrepresented the defendant, shall be given copies no later than the first business day after the preliminary arraignment; and

 (d) also shall inform the defendant:

 (i) of the right to secure counsel of choice and the right to assigned counsel in accordance with Rule 122;

 (ii) of the day, date, hour, and place for the trial, which shall not be less than 20 days after the preliminary arraignment, unless the issuing authority fixes an earlier date for the trial upon request of the defendant or defense counsel, with the consent of the attorney for the Commonwealth, and that failure to appear without cause at any proceeding for which the defendant's presence is required, including trial, may be deemed a waiver of the right to be present, and the proceeding may be conducted in the defendant's absence, and a warrant of arrest shall be issued;

 (iii) in a case charging a felony, 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, of the date, time, and place of the preliminary hearing, which shall not be less than 14 nor more than 21 days after the preliminary arraignment unless extended for cause or the issuing authority fixes an earlier date upon the request of the defendant or defense counsel with the consent of the complainant and the attorney for the Commonwealth; and that failure to appear without cause for the preliminary hearing will be deemed a waiver by the defendant of the right to be present at any further proceedings before the issuing authority, and that the case shall proceed in the defendant's absence, and a warrant of arrest shall be issued;

 (iv) if a case charging a felony is held for court at the time of the preliminary hearing, that failure to appear without cause at any proceeding for which the defendant's presence is required, including trial, the defendant's absence may be deemed a waiver of the right to be present, and the proceeding may be conducted in the defendant's absence, and a warrant of arrest shall be issued; and

 (v) of the type of release on bail, as provided in Chapter 5 Part C of these rules, and the conditions of the bail bond.

 [(4)] (6) After the preliminary arraignment, if the defendant is detained, he or she shall be given an immediate and reasonable opportunity to post bail, secure counsel, and notify others of the arrest. Thereafter, if the defendant does not post bail, he or she shall be committed to jail, as provided by law.

 (E) [PRELIMINARY HEARING IN CASES CHARGING A FELONY] Preliminary Hearing in Cases Charging a Felony.

 (1) Except as provided in paragraphs (E)(2) and (E)(3), in cases charging a felony, the preliminary hearing in Municipal Court shall be conducted as provided in Rule 542 (Preliminary Hearing; Continuances) and Rule 543 (Disposition of Case at Preliminary Hearing).

 (2) At the preliminary hearing, the issuing authority shall determine whether there is a prima facie case that an offense has been committed and that the defendant has committed it.

 (a) Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established.

 (b) Hearsay evidence shall be sufficient to establish any element of an offense including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.

 (3) If a prima facie case is not established on any felony charges, but is established on any misdemeanor or summary charges, the judge shall remand the case to Municipal Court for trial.

 (F) [ACCEPTANCE OF BAIL PRIOR TO TRIAL] Acceptance of Bail Prior to Trial.

 The Clerk of Courts shall accept bail at any time prior to the Municipal Court trial.

Comment

 The 2004 amendments make it clear that Rule 1003 covers the preliminary procedures for all non-summary Municipal Court cases, see Rule 1001(A), and cases charging felonies, including the institution of proceedings, the preliminary arraignment, and the preliminary hearing.

 See Chapter 5 (Procedure in Court Cases), Parts I (Instituting Proceedings), II (Complaint Procedures), III(A) (Summons Procedures), III(B) (Arrest Procedures in Court Cases), and IV (Proceedings in Court Cases Before Issuing Authorities) for the statewide rules governing the preliminary procedures in court cases, including non-summary Municipal Court cases, not otherwise covered by this rule.

 The 2004 amendments to paragraph (A)(1) align the procedures for instituting cases in Municipal Court with the statewide procedures in Rule 502 (Means of Instituting Proceedings in Court Cases).

 The 1996 amendments to paragraph (A)(2) align the procedures for private complaints in non-summary cases in Municipal Court with the statewide procedures for private complaints in Rule 506 (Approval of Private Complaints). In all cases in which the affiant is not a law enforcement officer, the complaint must be submitted to the attorney for the Commonwealth for approval or disapproval.

 As used in this rule, ''Municipal Court judge'' includes a bail commissioner acting within the scope of the bail commissioner's authority under 42 Pa.C.S. § 1123(A)(5).

 The procedure set forth in paragraph (C)(3) allows the issuing authority to exercise discretion in whether to issue a summons or an arrest warrant depending on the circumstances of the particular case. Appropriate factors for issuing a summons rather than an arrest warrant will, of course, vary. Among the factors that may be taken into consideration are the severity of the offense, the continued danger to the victim, the relationship between the defendant and the victim, the known prior criminal history of the defendant, etc.

 If the attorney for the Commonwealth exercises the options provided by Rule 202, Rule 507, or both, the attorney must file the certifications required by paragraphs (B) of Rules 202 and 507 with the Court of Common Pleas of Philadelphia County and with the Philadelphia Municipal Court.

 For the contents of the complaint, see Rule 504.

 Under paragraphs (A) and (D), if a defendant has been arrested without a warrant, the issuing authority must make a prompt determination of probable cause before the defendant may be detained. See County of Riverside v. McLaughlin, 500 U.S. 44 (1991). The determination may be based on written affidavits, an oral statement under oath, or both.

 Within the meaning of paragraph (D)([2]4), counsel is present when physically with the defendant or with the issuing authority.

 Under paragraph (D)([2]4), the issuing authority has discretion to order that a defendant appear in person for the preliminary arraignment.

 Under paragraph (D)([2]4), two-way simultaneous audio-visual communication is a form of advanced communication technology.

 See Rule 130 concerning venue when proceedings are conducted pursuant to this rule using advanced communication technology.

 Paragraph (D)([3]5)(c) requires that the defendant's attorney, or if unrepresented the defendant, receive copies of the arrest warrant and the supporting affidavits at the preliminary arraignment. This amendment parallels Rule 540(C). See also Rules 208(A) and 513(A).

 Paragraph (D)([3]5)(c) includes a narrow exception which permits the issuing authority to provide copies of the arrest warrant and supporting affidavit(s) on the first business day after the preliminary arraignment. This exception applies only when copies of the arrest warrant and affidavit(s) are not available at the time the issuing authority conducts the preliminary arraignment, and is intended to address purely practical situations such as the unavailability of a copier at the time of the preliminary arraignment.

 Nothing in this rule is intended to address public access to arrest warrant affidavits. See Commonwealth v. Fenstermaker, [515 Pa. 501,] 530 A.2d 414 (Pa. 1987).

 The 2012 amendment to paragraph (D)([3]5)(d)(iii) conforms this rule with the new procedures set forth in Chapter 5, Part E, permitting the attorney for the Commonwealth to proceed to an indicting grand jury without a preliminary hearing in cases in which witness intimidation has occurred, is occurring, or is likely to occur. See Rule 556.2. See also Rule 556.11 for the procedures when a case will be presented to the indicting grand jury.

 Paragraphs (D)([3]5)(d)(ii) and (D)([3]5)(d)(iv) require that, in all cases at the preliminary arraignment, 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 (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.''')

 Under paragraph (D)([4]6), after the preliminary arraignment, if the defendant is detained, the defendant must be given an immediate and reasonable opportunity to post bail, secure counsel, and notify others of the arrest. Thereafter, if the defendant does not post bail, he or she must be committed to jail as provided by law.

 Paragraphs (D)([3]5)(d)(iii) and (E) make it clear that, with some exceptions, the procedures in Municipal Court for both preliminary hearings and cases in which the defendant fails to appear for the preliminary hearing are the same as the procedures in the other judicial districts.

 Paragraph (E) was amended in 2013 to reiterate that traditionally our courts have not applied the law of evidence in its full rigor in proceedings such as preliminary hearings, especially with regard to the use of hearsay to establish the elements of a prima facie case. See the Pennsylvania Rules of Evidence generally, but in particular, Article VIII. Accordingly, hearsay, whether written or oral, may establish the elements of any offense. The presence of witnesses to establish these elements is not required at the preliminary hearing. But compare Commonwealth ex rel. Buchanan v. Verbonitz, [525 Pa. 413,] 581 A.2d 172 (Pa. 1990) (plurality) (disapproving reliance on hearsay testimony as the sole basis for establishing a prima facie case. See also Rule 542.

 For purposes of modifying bail once bail has been set by a common pleas judge, see Rules 529 and 536.

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