[52 Pa.B. 205]
[Saturday, January 8, 2022]
[Continued from previous Web Page]
PUBLICATION REPORT
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. The Criminal Procedural Rules Committee is considering proposing to the Supreme Court a set of statewide procedural rules governing bail proceedings, summons and arrest warrant procedures in the First Judicial District, and technical violations of county probation and parole.
Beginning in 2018, a workgroup was formed to review criminal pretrial detention practice in Pennsylvania. The workgroup identified the goal of the pretrial process as detaining the least number of people—through timely release at the earliest stage of the proceedings—as is necessary to reasonably ensure both the safety of the community and that defendants appear for court. Substantial strides toward meeting that goal could be achieved through a three-prong effort involving procedural amendments, risk assessment tools, and pretrial services. However, risk assessment tools and pretrial services carried a resource requirement that prohibited any mandate absent additional funding.
The scope of the workgroup's effort expanded to include matters raised in Commonwealth v. Davis, 68 EM 2019, concerning procedures for holding defendants on parole detainers. That scope was further expanded by matters raised in Philadelphia Community Bail Fund v. Arraignment Court Magistrates of the First Judicial District, 21 EM 2019.
This set of proposed rules were prepared by the workgroup and submitted to the Criminal Procedural Rules Committee for consideration. Some aspects of the proposed rules refine and reinforce existing procedures. Other aspects introduce new procedures, such as review of bail conditions and detention hearings, and new requirements, such as providing a statement of reasons for conditions and obtaining information about a defendant's ability to afford a monetary bail condition. The rules are also arranged for consideration of bail conditions from the least restrictive to the most restrictive.
The proposed process for determining bail entails the following: At the defendant's initial appearance, the bail authority determines whether the defendant will be detained or released. That determination begins with consideration of whether there are any bail conditions reasonably calculated to meet the purpose of bail. If not, then the defendant should be detained. If such bail conditions do exist, then the bail authority must release the defendant with the least restrictive conditions. If a defendant remains detained 48 hours after their initial appearance, a detention review is conducted. The defendant is appointed counsel for that review. At the review, the bail authority reconsiders whether a defendant initially detained should be released and, if so, the least restrictive bail condition reasonably calculated to meet the purpose of bail. For a defendant who remains detained due to release conditions that the defendant has not met, the bail authority reconsiders whether the conditions are reasonably calculated to meet the purpose of bail. Subsequent modifications of bail orders would proceed in accordance with Pa.R.Crim.P. 529, although the detention review is anticipated to reduce the frequency of bail modification motions.
The proposed rules also address pretrial services and pretrial risk assessment tools. The rules do not mandate these services or use of any such tools; rather, the rules are intended to establish minimum requirements for when the services are provided or the tools are used. The goal of these requirements is to establish statewide consistency.
To further promote statewide consistency, procedural amendments to rules concerning summons and arrest warrants in the First Judicial District have been proposed. The proposal provided an opportunity to re-examine prior rationale for the marked divergence in procedure between the most populous judicial district and the other 59 judicial districts.
While many of the proposed rules address bail, those rules share a common element with rules regarding technical violations of county probation and parole: affording a defendant due process where detention, or continued detention, is a possible outcome. Accordingly, a new rule governing the use of detainers and Gagnon I hearings aims to provide such due process. The rule also establishes objective criteria for the lodging of a county probation or parole detainer and a deadline for judicial review of detainers.
Corollary amendment of other rules may be necessary to update citations and title references. However, given the size of the proposal, corollary amendments have been omitted for the purpose of comments. Those amendments will be incorporated post-publication if the proposal advances.
As noted, the proposed rulemaking would rescind Rules 520—529 concerning bail and replace them with an entirely new set of rules. The current rules are bookended with other rules, which limit expansion. Accordingly, the proposed rules are numbered using a decimal, similar to the indicting grand jury rules. The rules follow the basic structure of rule text containing procedural requirements with Comments containing statements and references to assist in the application or interpretation of the rule text. Rather than renumber existing Rule 708 in its entirety, the rule will be renumbered as Rule 708.2 to permit expansion for New Rule 708.1. Rule 122 and Rule 1003 are amended using textual indicators.
The Committee invites all comments, concerns, and suggestions.
Rule 122. Appointment of Counsel
Given the provision of counsel in bail proceedings both for the limited purpose of reviewing conditions, see Rule 520.15, and for detention hearings, see Rule 520.16, this rule was revised in two parts. First, paragraph (A)(2) created a rule-based exception to the appointment of counsel based on financial eligibility. Second, paragraph (B)(2) created a rule-based exception to the term of counsel's appointment. The Comment was also revised to explain that the ''bail rules'' are a source for those exceptions.
Further discussion of counsel in bail proceedings can be found in this Publication Report regarding Rule 520.5.
Part C. Bail—Introduction
The current introduction describing the rulemaking history and arrangement of the rules was replaced with a discussion of the purpose of the rules and a brief overview of the bail determination process. Retained from the current introduction was the citation to the statutory authority for rulemaking on this subject. Retention of the statutory citation was not intended to impinge upon the Court's constitutional rulemaking authority.
The second paragraph is a restatement of the goal of the bail determination procedures that was prepared by the workgroup. This restatement is intended to guide interpretation and application of the rules.
The third paragraph is intended to generally describe the bail determination process. It also reinforces that a bail determination should impose the least restrictive conditions necessary to address risk; a determination should not be punitive.
Rule 520.1. Purpose of Bail
The proposed expansion of the purpose of bail includes the protection of the defendant from immediate risk. The expansion is arguably a substantive matter, but the defendant remains part of the community, so enumeration of the defendant's risk of self-harm was believed to be a reasonable interpretation of ''any person and the community.'' See Pa. Const. art. I, § 14. Paragraph (A)(2) clarifies that the ''safety of the community'' specifically includes the victim.
Some concern was expressed about paragraph (A)(3) regarding the protection of the defendant from immediate risk of substantial physical self-harm. The concern centered on whether bail authorities have the necessary information, ability, or training to clinically assess addictions or mental illnesses that might underlie such risk. Moreover, the criminal justice system may not be the appropriate forum to address medical issues, especially at the time of setting bail. This concern, while not unfounded, was overridden by the notion that the criminal justice system, even during the bail process, can assist in offering critical services to people in need. Additionally, many communities are just not able to actively provide these services absent intervention from the criminal justice system. This issue arose again in the context of Rule 520.10 and release with non-monetary conditions.
The purpose of bail was also expanded to include reasonable assurances of the integrity of the judicial system. Such safeguarding of the integrity of the judicial system includes preventing both witness intimidation and the destruction of evidence. While this purpose of bail may not be traced to the language of Article I, § 14, the workgroup believed the courts have an inherent authority to ensure a full and fair trial, including adopting measures designed to thwart efforts to deny a full and fair trial.
The phrasing in paragraph (B) of ''no available condition'' is intended to recognize that the availability of conditions may vary among judicial districts.
Discussed was whether the rule should include a statement indicating that the bail authority, and not the parties, is the final arbiter of release and imposition of any necessary conditions. Paragraph (C) was added to indicate that the bail authority will not accept an agreement between the parties concerning bail conditions unless the bail authority is satisfied that the agreement is consistent with the purpose of bail. Hence, the bail authority is not simply a ''rubber stamp'' for whatever is agreed upon by the parties.
The Pennsylvania Constitution is quoted in the Comment, similar to current Rule 520. The placement of this language in the first ''bail rule'' seemed appropriate.
Rule 520.2. Bail Determination Before Verdict
This rule was formerly Pa.R.Crim.P. 520. Paragraph (C) was added to indicate when the initial bail determination should occur. ''Unless otherwise provided by rule'' was intended to acknowledge that some rules, such as Rule 517 concerning out-of-county warrants, may apply with regard to timing. A reference to Rule 517 was also added to the Comment.
The absence of a deadline, such as 48 hours, is reflective of discussions about time requirements for preliminary arraignments. A deadline was not believed attainable in all counties, and a maximum might operate to delay determinations in counties that currently make them in less than 48 hours. Notwithstanding those concerns, the Comment identifies holding the hearing within 24 hours of arrest as best practice. A citation to Commonwealth v. Yandamuri, 159 A.3d 503, 529 (Pa. 2017) was also added to inform law enforcement that lack of a prompt preliminary arraignment might be a factor in suppression. A citation to County of Riverside v. McLaughlin, 500 U.S. 44 (1991) was added to the Comment—the case is codified at Pa.R.Crim.P. 540(E), but that rule does not contain a time limitation.
Rule 520.3. Bail Determination After Finding of Guilt
This rule was formerly Pa.R.Crim.P. 521. Paragraphs (A)(2)(b) and (D)(2) were revised from the current rule to incorporate by reference the purpose of bail announced in Rule 520.1. Otherwise, no substantive change to the current rule was intended.
A sentence was added to the 2nd paragraph of the Comment to indicate that ''life imprisonment cases'' include cases where the potential sentence is life imprisonment due to prior convictions. See, e.g., 42 Pa.C.S. §§ 9714, 9715.
Rule 520.4. Detention of Witnesses
This rule was formerly Pa.R.Crim.P. 522. Paragraph titles were added to assist readers.
The last sentence in paragraph (A) of the current rule suggested that the issuing of process was discretionary before bail was set. It further suggested that all a court needed before issuing process was to receive an application. This sentence was revised to state: ''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.''
The language in paragraph (B) was revised to change ''bail bond'' to ''release'' and ''commit the witness to jail'' to ''order the witness detained.'' These changes were not intended to be substantive. Discussed was whether a detained witness, as permitted in paragraph (B), should be provided with a detention hearing, similar to that proposed for defendants. The present rule does not provide such procedural protections for a witness nor does it provide for the appointment of counsel. In the absence of a need for such protections, they were not added.
Rather, to limit the need and extent of any necessary detention, paragraph (B) of the rule now allows for a witness's testimony to be preserved pursuant to Pa.R.Crim.P. 500 and 501, thereby possibly obviating the need to detain the witness. This provision is based largely upon 18 U.S.C. § 3144.
A new paragraph (E) was added to provide for the rescission of any process at the conclusion of the criminal proceeding and the release of any detained witness when that witness's presence is no longer necessary. Discussed was whether the ''conclusion of the criminal proceeding'' was too vague. Resultantly, paragraph (A) was further revised to require the application to detain a material witness to identify the proceeding for which the witness's presence is required. Similarly, discussed was whether ''presence is no longer necessary'' was too vague for determining when to release a witness. However, identifying a specific triggering event that would accommodate all cases was not possible, and the use of ''no longer necessary'' provides a judge flexibility based upon the circumstances.
Added to paragraph (E) was a provision requiring the judge to supervise the witness's detention to eliminate any unnecessary detention. This provision was based largely on Fed.R.Crim.P. 46(h)(1).
Rule 520.5. Counsel
The current rules governing bail do not specifically address the right to counsel. Pa.R.Crim.P. 540(F)(1) requires the issuing authority to advise the defendant of the right to counsel at the preliminary arraignment—the same proceeding in which bail is set. Generally, the Pennsylvania Rules of Criminal Procedure require counsel to be provided prior to the preliminary hearing if a defendant is unable to afford counsel. Pa.R.Crim.P. 122(A)(2). Additionally, a court may appoint counsel ''when the interests of justice require it.'' Pa.R.Crim.P. 122(A)(3).
In Rothgery v. Gillespie Co., 554 U.S. 191, 213 (2008), the Supreme Court of the United States held that ''a criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.'' See also Kuren v. Luzerne Co., 146 A.3d 715 (Pa. 2016). Arguably, a defendant has a right to counsel at the time of the initial bail determination, which could occur at a defendant's preliminary arraignment, if the defendant's liberty is subject to restriction.
Within the context of the bail process, the appointment of counsel prior to bail determinations was considered along a continuum, from counsel being appointed in every case to counsel never being appointed prior to a determination. Presumably, if appointed prior to the bail determination, counsel could meet and consult with the defendant in preparation for that determination. Such consultation and preparation would enhance the reliability of the bail determination through counsel's cogent presentation of facts and argument to the bail authority. The best practice would therefore be to have counsel prior to the initial bail determination. The benefit of counsel being appointed at the earliest possible stage would not be limited to minimizing detention; early legal representation and consultation would also be beneficial to the preparation of a defendant's defense and increase judicial efficiency.
However, there is a practical restraint on requiring the appointment of counsel prior to every bail determination: a lack of resources in all counties for the timely appointment of counsel in all cases. In larger counties with greater resources and higher volume that justify coverage, counsel may be available at the preliminary arraignment for all defendants regardless of the defendant's financial wherewithal. When resources are limited, it may take days for the public defender to interview a defendant, assuming the defendant applies for services and qualifies for services. This may have unintended consequences, such as delaying the bail determination and prolonging detention until counsel is present. However, the necessity of counsel at the preliminary arraignment generally decreases when bail determinations result in the release of defendants.
Proposed is a requirement that a defendant who remains detained more than 48 hours after the initial bail determination be represented by counsel at the detention review. Counsel's representation would be limited to the detention review and not based upon the defendant's financial wherewithal. This requirement would be the minimum for representation and is not intended to preclude representation of all defendants at preliminary arraignment in those counties that can provide such coverage.
Recognized within this rule-based requirement for the appointment of counsel regardless of a defendant's financial resources is potential tension with the Public Defender Act, 16 P.S. § 9960.6(b) and the authority it bestows upon the public defender to determine eligibility for services. While responsibility for determining a defendant's eligibility for appointed counsel may be shared with the courts, see Dauphin Cty. Pub. Def.'s Off. v. Ct. of Common Pleas of Dauphin Cty., 849 A.2d 1145, 1151 n.7 (Pa. 2004), and while the Act has been subject to suspension in the rulemaking context, see Pa.R.Crim.P. 1101(4), the Committee especially seeks the input of public defenders about this aspect of the proposal.
Paragraph (A) is a recognition that there is a role for counsel at the initial bail determination. Paragraph (B) requires the appointment of counsel if the defendant is still detained 48 hours after the initial bail determination. See also Rule 520.15 (Condition Review). Paragraph (C) also requires the appointment of counsel if the defendant is detained for a detention hearing. These two instances for the appointment of counsel were intended to impose a minimum requirement. If a county wished to provide counsel for all bail determinations, the rule would not proscribe that practice.
Paragraphs (B) and (C) provide for the defendant's eligibility for the appointment of counsel, without regard to the defendant's financial resources, to eliminate the process of financial qualification and acceptance prior to appointment. Removing the financial threshold for eligibility serves to expedite the appointment of counsel for the upcoming proceeding, thus allowing representation to begin sooner rather than later. Neither paragraph is intended to preclude the use of private counsel or impinge upon a defendant's right of self-representation. Both paragraphs appear somewhat in tension with Rule 122, which provides for the appointment of counsel to defendants without financial resources and for those appointments to be effective until final judgement. Hence, the proposed amendments to Rule 122.
Paragraph (D) specifically permits limited representation. This paragraph was intended to provide for expedited representation for the purpose of bail whereby matters related to eligibility for public defender services and conflicts could be addressed afterward. Ideally, such issues would be determined prior to the bail determination, but they may operate to delay a review of conditions or a detention hearing, which would operate to prolong a defendant's detention.
The Comment defers to local practice for the appointment of counsel. This approach is intended to accommodate both large and small counties with different resources and availability. Additionally, the commentary indicates that the extent of counsel's representation can be set forth in the appointment order or by local rule. This approach was intended to limit the administrative burden of withdrawing an appearance.
Rule 520.6. Release Factors
This rule was formerly Rule 523. The enumerated factors were intended to be a substantial restatement of the ''release criteria'' found in Rule 523, together with the addition of several new factors. The factors concerning a defendant's financial condition, age, reputation, and character were removed.
''Financial condition'' was removed because a defendant's ability to pay only arises in the context of a monetary condition. This factor should not be considered in the release/detention decision. Notably, some may argue that ''financial condition'' is relevant to flight risk because wealth might provide a means for evasion.
The defendant's age was removed because 1) age is not necessarily a proxy for maturity, reliability, or wisdom; and 2) a factor without guidance can be subjectively and inconsistently applied. Some pretrial risk assessment tools may use age as one variable in a multi-variant calculation. The elimination of age as a factor in Rule 520.6 is not intended to preclude the use of age in a pretrial risk assessment tool, provided the tool is validated in accordance with Rule 520.19(C).
The defendant's reputation was removed as a factor because reputation evidence at the initial bail determination would not be limited by the Rules of Evidence.
''Character'' was also removed as a factor, but an argument was recognized for its retention. In one aspect, ''character'' is redundant of the other factors because the bail authority is asked to determine whether the defendant has the character (or propensity) to comply with the conditions of bail. In another aspect, ''character'' represents the bail authority's unquantifiable assessment of a defendant's risk. The tension in using ''character'' is that a bail authority's perception may be based on stereotype or experience, which may be inaccurate, rather than on an individualized assessment.
Paragraph (A)(5) instructs the bail authority, when making a determination of whether a defendant is bailable, to consider whether the prosecution has sought pretrial detention. If the prosecutor has given notice, the bail authority should proceed to Rule 520.18 to determine detention.
Paragraph (B) is largely based on the wording of the existing rule with revisions to improve readability.
The Comment carried over some existing commentary and added guidance when considering the gravity of the offense charged and the severity of a potential sentence. This guidance was intended to temper the possibility of detaining a high risk defendant facing relatively minor charges. The Comment also cautions the bail authority to not ''double count'' a defendant's prior criminal history and other factors if using a risk assessment report because the assessment will already reflect these factors.
''Custody status'' was defined in the Comment. While typically a prior arrest for unrelated charges is not a factor to consider in determining bail, the Comment notes that the bail authority is permitted to consider a defendant's prior arrest insofar as the defendant is currently released on bail for that arrest. This language is carried over from the current rule.
Rule 520.7. Least Restrictive Bail Determination
This is an entirely new rule. This rule is less procedure and more policy. It is intended to require the bail authority to impose sufficient conditions to meet the purpose of bail while simultaneously using the least restrictive conditions necessary. The goal is to address and hopefully eliminate the over-conditioning of release. The Comment informs the reader of the increasing restrictiveness of determinations which is also reflected in the ordering of the rules, beginning with Rule 520.8 (Determination: Release with General Conditions) and culminating in Rule 520.16 (Detention).
Rule 520.8. Determination: Release with General Conditions
This rule was formerly Pa.R.Crim.P. 526. As indicated in the prior rule, this determination is the least restrictive. This type of determination is intended to be similar to release on recognizance. The conditions in this rule were carried over from current Rule 526. The Comment to this rule is derived from the current Comment to Rule 526 with some editing, including the removal of content that can be found in other rules.
Rule 520.9. Determination: Release on Nominal Bail with General Conditions
This rule was based on current Rule 524(C)(4). The rule indicates that $1.00 is sufficient for nominal bail. This is a change from the current language, which also allows for release on a nominal amount of cash but only suggests $1.00, leaving the bail authority to determine what is sufficient security.
The commentary discusses the purpose of nominal bail and the circumstances when it might be imposed. ''Transience'' was used to indicate a person who is staying or working in a place for only a short time. The term was not used to suggest homeless persons.
Carried over from the current Comment was the following statement: ''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).'' However, this statement should not be read to supersede any foreign jurisdiction's extradition requirements. See, e.g., Uniform Criminal Extradition Act, 42 Pa.C.S. §§ 9121 et seq.
Rule 520.10. Determination: Release with Non-Monetary Special Conditions
This rule was formerly Pa.R.Crim.P. 527. Paragraph (A) (Necessity) specifies that special conditions are applicable only when general conditions are insufficient. This reinforces that release with special conditions is progressively more restrictive relative to general conditions.
The most significant change in this rule is the expanded list, in paragraph (B), of potential special conditions that may be imposed. As indicated in the commentary, the availability of special conditions may be contingent on the availability of pretrial services in a particular judicial district. While no attempt was undertaken to order the special conditions from least restrictive to most restrictive, electronic monitoring does appear as the second to last condition on the list.
Regarding paragraph (B)(8), the special condition of refraining from the use of alcohol, there was discussion concerning whether this condition should prohibit ''excessive'' use of alcohol. Including that qualification, however, might suggest that a bail authority can only prohibit the excessive use of alcohol. On the other hand, eliminating the qualification might suggest that a bail authority must either permit the consumption of any amount of alcohol or prohibit the use of alcohol entirely. Ultimately, the calibrating of permissible alcohol consumption was left to the bail authority's discretion.
The interplay between the purpose of bail to protect a defendant from immediate risk of self harm and the imposition of special conditions was also discussed. Concerns were expressed that bail authorities were untrained to diagnose medical and psychological issues, including alcohol/drug dependency. Understanding that bail authorities are unable to render a clinical diagnosis from subtle signs and symptoms, they are able to detect immediate risk based upon more obvious actions and statements made by a defendant or observed by law enforcement. This detection would permit the bail authority to order the defendant to submit to an assessment, as provided for in paragraph (B)(9), but the bail authority could not order treatment based upon their detection of an immediate risk absent an existing treatment or service plan.
Several of the examples from the Comment to Rule 527 were carried over, and some of the examples were modified.
Rule 520.11. Determination: Release with Monetary Conditions
This rule was formerly Pa.R.Crim.P. 528. This rule represents a significant change from the current rule concerning the imposition of monetary conditions. Paragraph (A) limits the availability of this condition to circumstances where non-monetary conditions cannot address the risk. Paragraph (B) is intended to extend the limitation in paragraph (A) to both secured and unsecured monetary conditions. Paragraph (C) permits a secured monetary condition to be satisfied with a deposit. Note that ''non-monetary conditions'' in paragraph (C) could either be general conditions only or general conditions and special conditions. The use of non-monetary special conditions and monetary conditions are not mutually exclusive. For example, a high risk of non-appearance may warrant safekeeping of the defendant's passport and a substantial monetary bail condition.
Paragraph (D) requires the defendant to complete and verify a financial disclosure form and for the bail authority to consider it when determining the amount of the monetary condition. The requirement that the bail authority consider ''the financial ability of the defendant'' is currently imposed by Rule 528(A)(2). Paragraph (D) goes further to require that any amount be attainable by the defendant. It is anticipated that a statewide form would be created to ensure uniformity in the reporting of financial information.
Discussed was the requirement that the bail authority rely upon a defendant's self-reporting even though a strong incentive exists for the defendant to understate their wealth. However, aside from self-reporting, there was no other practical mechanism available to permit a timely bail determination and to include an ability-to-pay finding in setting amounts. If a defendant is rational and wishes to avoid the risk of detention, then the defendant would be incentivized to accurately self-report wealth. Moreover, an assessment of wealth based only upon a defendant's appearance, accoutrements, or occupation is fraught with subjectivity and undercut by incompleteness.
Also discussed was whether paragraph (D) should be revised so the amount of security reflects what is ''reasonably immediately attainable'' by the defendant. This revision would address the liquidity of the security and a defendant's ability to raise security immediately. To avoid detention being a function of liquidity, which has no bearing on risk, timeliness should be a factor in determining the reasonable attainability of the amount. As such, the Comment was revised to add the 4th paragraph discussing timeliness. Rule 520.14(A) discusses the forms of security that will be accepted for a monetary condition. These forms of acceptable security inform the reader about the liquidity of the security.
Paragraph (D)(1) refers to the defendant's wealth and not to other sources, such as family members, when determining the defendant's ability to pay.
Paragraph (E) permits the bail authority to inquire into the source of the defendant's security. This paragraph is not intended for the bail authority to inquire about other sources, but to delve into the source of the defendant's self-reported wealth. As indicated in the Comment, this is required by statute for charges under Title 35; however, paragraph (E) does not limit the inquiry based on the charges. The purpose of this permitted inquiry is to provide a bail authority with a more complete picture before imposing a monetary bail condition.
Paragraph (F) is more a statement of policy than procedure. It requires the amount to be correlated to the defendant's risk and is intended as a check against unreasonably high amounts notwithstanding a defendant's ability to pay.
Paragraph (G) eliminates the use of bail schedules and requires the bail authority to make an individualized assessment of a defendant's ability to pay before imposing a monetary condition.
Paragraph (H) is a statement of policy carried over from the current rule.
Paragraph (I) is arguably duplicative of the requirement of Rule 520.12 to provide a statement of reasons, although it explicitly requires the reason to be in writing to facilitate review and to memorialize the rationale for possible future comparative analysis. However, the paragraph is intended to reinforce that a monetary bail condition must be related to risk and operate to mitigate that risk.
The Comment indicates that whether a monetary condition is secured or unsecured is relevant to forfeiture, not incentive. However, one could argue that there is a difference between a loss and a debt. A loss is immediate while a debt must be collected. Yet, the bail authority's determination should be informed by whether a defendant has a means of satisfying the debt based upon an ability to pay determination. As a matter of policy, the bail authority should not set a monetary condition that would exceed what is reasonably attainable by a defendant regardless of whether the condition is unsecured, partially secured, or fully secured. In theory, it is the amount of the condition, and not the amount of security, that mitigates the risk. The ability of a defendant to fundraise should have no connection to whether the defendant presents a risk.
The Comment also states that a monetary condition is not available for a defendant unable to pay the total amount of the condition. An amount above what a defendant can afford does not provide an incentive for lawful behavior because, when a defendant has nothing, the risk of losing anything is meaningless. The alternative is for indigent defendants to be released on non-monetary conditions or scheduled for a detention hearing.
Furthermore, the Comment informs the reader that a third party surety should only be used to address a risk of non-appearance because the third party surety is not liable for other violations of conditions of bail.
Consideration was given to whether minor-defendants should be ''presumed indigent'' for the purpose of imposing a monetary bail condition. For the purpose of appointing counsel for juveniles in delinquency proceedings, the Juvenile Act states:
In delinquency cases, all children shall be presumed indigent. If a child appears at any hearing without counsel, the court shall appoint counsel for the child prior to the commencement of the hearing. The presumption that a child is indigent may be rebutted if the court ascertains that the child has the financial resources to retain counsel of his choice at his own expense. The court may not consider the financial resources of the child's parent, guardian or custodian when ascertaining whether the child has the financial resources to retain counsel of his choice at his own expense.42 Pa.C.S. § 6337.1(b)(1) (emphasis added). Accordingly, a juvenile's wealth is presumed to be nil when appointing counsel unless there is information that suggests otherwise.
Conceptually, this approach is not very different from that in Rule 520.11(D), which would require the defendant's financial disclosure and the bail authority's consideration of that information when setting the amount of a monetary condition. Thus in either case, appointing counsel or setting a monetary condition, the court is to consider available information before determining a juvenile's ability to pay. The primary difference is that, in the absence of such information, wealth is zero for a juvenile in need of counsel, while there is no such presumption when determining bail. Section 6337.1(b)(1) also prohibits the court from considering third party sources of financial resources when determining whether a juvenile can afford private counsel. Rule 520.11(D)(1) does not contain such a prohibition.
There was a concern that a presumption of indigence would operate to foreclose the possibility of monetary bail conditions for a youth, which could result in more youths being detained, especially when these young defendants are often involved in more severe offenses that are either directly filed or transferred to criminal court. Additionally, a presumption of indigence was believed to be unnecessary since Rule 520.11(D) requires a defendant to self-report wealth. If a youth truthfully and accurately reports no wealth, then there is no need for a presumption.
Rule 520.12. Statement of Reasons
This is an entirely new rule. The rule requires the bail authority to provide reasons for any bail determination that imposes special conditions. These reasons need to be contemporaneously provided with the bail determination so as not to delay review if the defendant is detained due to a failure to satisfy a condition.
Fundamentally, if a defendant is presumed to be innocent and is subject to judicially imposed pretrial restrictions that impinge upon their liberty, then a reason should be provided for those restrictions. Reasoned action defeats claims of arbitrariness and fosters public confidence through increased accountability and consistency.
Requiring a statement of reasons for the imposition of special conditions presents an increased administrative burden. Discussed was whether a statement of reasons should be required for all bail determinations, even those when a defendant is released on general conditions. While such information may be helpful if the Commonwealth seeks modification or if a situation arises because of the defendant's release, in light of the anticipated burden for special conditions, an expanding of the requirement to all bail determinations was not favored.
A requirement for written reason(s) for the detention of a defendant is covered by Rule 520.16(F).
Rule 520.13. Bail Bond
This rule is substantially the same as current Pa.R.Crim.P. 525. Titles were added and some paragraphs re-ordered. A paragraph in the Comment concerning 1995 rulemaking was removed as historical.
Paragraph (C) of current Rule 525 states, in part, ''If the defendant is unable to post bail at the time bail is set. . . .'' This rule moves that language to paragraph (F) and rephrases it, ''If the defendant is unwilling to agree to comply with all the imposed conditions of the bail at the time bail is set. . . .'' ''Unable'' was changed to ''unwilling'' to indicate that the imposed conditions must be attainable, a recognition that unattainable conditions are tantamount to detention. ''Post bail'' was replaced with ''agree to comply'' to remove the suggestion that secured monetary conditions were the norm.
Rule 520.14. Secured Monetary Conditions—Security; Recording; Liability
Portions of this rule are substantially the same as current Pa.R.Crim.P. 528(D)—(F). Titles were added. Current paragraphs (A)—(C) and corresponding commentary were removed because that subject matter is addressed in Rule 520.13.
To more accurately reflect the Act of July 2, 2015, P.L. 110, paragraph (C)(1) was revised to remove the defendant's noncompliance as a basis for third-party liability.
Rule 520.15. Condition Review
This is an entirely new rule intended to provide judicial review of any condition imposed at the initial bail determination that remains unsatisfied, causing a defendant to remain detained. The first paragraph includes the phrase ''designated bail authority'' to permit the president judge to designate a magisterial district court judge or a court of common pleas judge to act as the bail authority for purposes of review. This designation is intended to address the possible conflict with Rule 520.17 concerning bail modification, which limits who can modify bail before a preliminary hearing and the ''once up, always up'' aspect of court of common pleas' modifications. See Pa.R.Crim.P. 529(D). Rule 520.17 is proposed to replace Pa.R.Crim.P. 529. A separately designated bail authority sitting in review of conditions is an alternative to the initial bail authority simply reviewing its prior determination.
A condition review is designed to be less procedurally rigorous than a detention hearing. As with both procedures, the defendant is appointed counsel. A defendant may remain detained due to either an unwillingness or inability to satisfy bail conditions. An aspect of this review includes the reasons for failing to satisfy bail conditions and reconsideration of whether initially imposed conditions remain necessary.
In paragraph (C), appearance by advanced communications technology (''ACT'') is permissive for all counsel and the defendant. Paragraph (D) allows the parties to present additional information to the bail authority. ''Information'' was used to avoid ''evidence,'' which might imply that the Rules of Evidence are to be enforced. In paragraph (E), a bail authority is permitted to modify the initial determination.
The commentary also clarifies that a failure to comply with the time requirements of review should not result in the release of the defendant by default.
Rule 520.16. Detention
This is an entirely new rule. This rule ''bookends'' the range of restrictiveness as being the most restrictive. Paragraph (A) sets forth the bases for detention and is taken from the Pennsylvania Constitution. The paragraph also contains the constitutional clause ''proof is evident and presumption is great.'' See also Commonwealth v. Talley, 14 MAP 2021.
In practice, the only information required for paragraph (A)(1) is often the charge itself. Yet, for a charged offense of murder with an unspecified degree, the bail authority must examine the alleged circumstances to determine whether there is sufficient evidence of culpability to establish a prima facie offense of murder of the first or second degree. Generally, murder of only the third degree would not be subject to paragraph (A)(1). See 18 Pa.C.S. § 2502(c) (murder of the third degree is a felony of the first degree); 18 Pa.C.S. § 1103 (Sentence of Imprisonment for Felony). To that end, the bail authority could examine the probable cause affidavit for additional information.
As indicated in the Comment, paragraph (A)(1)—offenses with sentencing of death or life imprisonment—is intended to include capital offenses and offenses that may result in a sentence of life imprisonment. Discussed was whether charges that do not have a life sentence, per se, but may result in a life sentence due to prior convictions, should be subject to paragraph (A)(1). For example, a defendant's prior criminal history may also subject the defendant to a maximum sentence of life imprisonment for the current offense. See 42 Pa.C.S. § 9714 (Sentences for Second and Subsequent Offenses); 42 Pa.C.S. § 9715 (Life Imprisonment for Homicide). While it is believed the risk of nonappearance is impacted by the potential sentence, regardless of the offense, the applicability of paragraph (A)(1) in those instances should be decided on appeal and not by the rules.
A magisterial district judge does not have authority to fix bail for offenses under 18 Pa.C.S. § 2502 (murder) and § 2503 (voluntary manslaughter). See 42 Pa.C.S. § 1515(a)(4). Therefore, in paragraph (A)(1) matters, the magisterial district judge should order the defendant detained until a detention hearing can be heard by a judge of the court of common pleas or a judge of the Philadelphia Municipal Court pursuant to paragraph (B). The offenses that may form the basis for detention are not identical to the limitation on magisterial district judge jurisdiction. For example, ''voluntary manslaughter'' is a felony of the first degree, which is not an offense serving as a basis per se for detention. In those cases, the common pleas judge is sitting as the bail authority, but those cases are not subject to this rule.
Paragraph (A)(2) matters concerning available conditions can be heard by magisterial district judges pursuant to paragraph (C). In cases where both paragraphs (A)(1) and (A)(2) may offer a basis for a defendant's detention, it was presumed for the purpose of rulemaking that the Commonwealth would pursue detention on both grounds before a judge of the court of common pleas in light of 42 Pa.C.S. § 1515(a)(4).
In matters concerning available conditions, paragraph (C)(4) requires a detention hearing to be held within 48 hours, which is 24 hours less than required by paragraph (B)(2) for a detention hearing based upon the offense. However, paragraph (C)(4) also contains a provision for an additional 3-day continuance for cause or by agreement when it is alleged that no available conditions exist other than detention. That provision is not limited to requests by the defendant but is also available to the prosecution.
Paragraph (C)(3) permits the bail authority to order the defendant to be temporarily detained if the bail authority possesses a reasonable belief that no other conditions are available except detention. Because a prosecutor may not always be present for the defendant's first appearance, the bail authority should be able to order a detention hearing sua sponte. Alternatively, the bail authority may reject a bail agreement among the parties to not seek detention.
Discussed was whether the notice given for the detention hearing should contain the reason for seeking detention. The reason would be necessary if the parties are going to be able to argue whether a detention hearing is warranted. Further, knowing the reason would allow the parties to prepare for the detention hearing, especially if the detention hearing was ordered sua sponte. However, there was concern about limiting the reasons for detention at the hearing to only those provided with the notice. A party should not be precluded from offering a new reason if additional information comes to light after further investigation. Accordingly, paragraphs (C)(1) and (C)(2) require that notice include the initial reason for seeking detention. There should be no incentive for less than candid disclosure of all reasons known at the time of the detention request given the ability of the defendant to challenge the sufficiency of the showing pursuant to paragraph (C)(3). If reasons later surface prior to the detention hearing, then a party may seek a continuance if necessary. If those reasons surface after the detention hearing, then a modification may be sought.
Paragraph (C)(3) provides a defendant the opportunity to argue that a reasonable basis for a detention hearing does not exist. The opportunity for such argument is intended to prevent a mere request from the prosecution for a detention hearing from causing the detention of the defendant until the hearing. Without this opportunity, the interim detention decision would be removed from the bail authority. If the bail authority denies a request for a detention hearing due to a lack of reasonable basis, the prosecution is not precluded from later seeking detention through a modification of the bail order. A Comment to this effect was added to the rule.
Paragraph (D) provides for the appointment of counsel, which may be a limited appointment similar to other bail determinations due to the uncertainty of capital case qualified counsel being available in all counties on short notice.
Paragraph (E) was added to emphasize there are no default releases for untimely hearings. This is a matter of policy. Reasonable arguments can be made that liberty, rather than detention, should be the default. Such an approach would be consistent with a presumption of innocence. Further, defaulted release could be a strong incentive for timely bail hearings. Conversely, the defendants subject to detention hearings, especially on an offense basis, are alleged to have committed some of the worst crimes and, presumably, pose the greatest risk.
Paragraph (F) requires the bail authority to state in writing the reasons for detaining a defendant after a hearing. If the bail authority does not order detention and releases the defendant subject to special conditions, then the bail authority must provide a statement of reasons pursuant to Rule 520.12.
Paragraph (G) addresses where to seek further review. Again, the procedure is driven by the basis for detention. Because the offense-based detention hearings are going to be heard by a court of common pleas judge, the appeal would lie with the Superior Court subject to the Rules of Appellate Procedure. For a no-condition basis for detention, those hearings are not necessarily heard in the first instance by a court of record. Therefore, those decisions are subject to modification by a court of common pleas judge pursuant to the Rules of Criminal Procedure. Thereafter, the decision can be appealed to the Superior Court.
Rule 520.17. Modification of Bail Order Prior to Verdict
This rule was formerly Pa.R.Crim.P. 529. Paragraph (A) is amended to add new subparagraphs (1) and (2). Currently, paragraph (A) provides the issuing authority the ability to modify bail any time before the preliminary hearing. This is provided for in subparagraph (1).
Subparagraph (2) now provides a ''bail authority sitting by designation'' with the same authority to review conditions. This provision is intended to permit a court of common pleas judge, sitting by designation, to modify bail conditions upon review pursuant to Rule 520.15, but not to thereafter preclude a magisterial district judge from further modifying the conditions at the preliminary hearing. Cf. Pa.R.Crim.P. 520.17(D) (proposed).
Rule 520.18. Responsibilities of Pretrial Services
This is an entirely new rule. This rule is intended to establish minimum services for pretrial services. Robust, objective, informed, and innovative pretrial services is critical to risk mitigation, appropriate conditioning, and consistency of outcomes. However, the ability of the rules to mandate the provision of pretrial services, in the absence of additional funding, was considered foreclosed and beyond the scope of rulemaking. Additional funding was believed necessary lest a county feel compelled to impose user fees on defendants to fund pretrial services.
At a minimum, pretrial services would be required to consider and advise the president judge about the feasibility of adopting a risk assessment tool. Pretrial services would also be required to provide basic services, including reminders of court dates, reporting capabilities, referrals for services, and identification of detained defendants. The technology for telephonic, text, and email reminders exists in Pennsylvania, and results indicate that such reminders reduce the number of missed court appearances. Reporting capabilities may also exist through adult probation. The identification of detained defendants is essential for triggering the condition review for defendants who remain detained due to unsatisfied conditions. However, in the absence of pretrial services, this need may be met by prison reporting.
The benefit of effective, neutral pretrial services cannot be overstated.
Rule 520.19. Pretrial Risk Assessment Tool Parameters
The use of pretrial risk assessment tools (PRATs) in making bail determinations is acknowledged in the Comment to Pa.R.Crim.P. 523, as revised in 2016, but not required: ''Nothing in this rule prohibits the use of a pretrial risk assessment tool as one of the means of evaluating the factors to be considered under [Pa.R.Crim.P. 523](A). However, a risk assessment tool must not be the only means of reaching the bail determination.''
A PRAT is intended to provide a statistically valid and objective analysis of whether an arrested person is likely to appear in court and not reoffend if released before trial. It is also intended to reduce bias and subjectivity in court decisions about who should be detained before trial and which conditions, if any, should be imposed on those who are released. Moreover, when paired with a scaled matrix setting forth escalating release conditions, it also can provide consistency, objectivity, and predictability in bail recommendations and determinations.
PRATs have been adopted in many jurisdictions, including counties within Pennsylvania. Advocates contend that the use of PRATs represent a best practice. Yet, support for these tools is not universal; there was also a lack of unanimity about the value of recommendations derived from assessments.
The Committee believes, with certain reservations and necessary assurances, that the rules should facilitate the use of PRATs. Accordingly, Rule 520.19 is intended to establish parameters on current risk assessment tools and inform counties contemplating the adoption of PRATs. Notably, in paragraph (A), the adoption and use of a PRAT is left to local decision-making. As noted, the mandated statewide use of a PRAT is constrained by funding and is a policy-based decision that should more appropriately involve state or local legislative bodies.
This rule is more administrative or technical than procedural, but it is intended to ensure that only validated PRATs are used. What the rule does not address is significant. It leaves to local decision-making the setting of risk classification thresholds, allowing a county to decide which scores are considered high, medium, or low. Additionally, the rule does not address the matrix of release options based on risk classifications. The options depend largely on the availability of pretrial services and the extent to which pretrial services offers supervision options.
In paragraph (B), PRATs, at a minimum, must determine the risk of new criminal activity and failure to appear. Note that a PRAT meeting only this minimum standard would be inadequate to ensure that the purpose of bail is completely satisfied insofar as it does not capture the defendant's immediate risk of self-harm or safeguard the integrity of the judicial system.
The requirement of paragraph (C) is intended to ensure that only validated and neutral PRATs are used. The paragraph proposes a minimum level of predictability of 70%, but the Committee welcomes informative comments about the attainability and appropriateness of that level.
Rule 708.1. Violation of Probation or Parole: Notice, Detainer, Gagnon I Hearing, Disposition, and Swift Sanction Program
The petition in Commonwealth v. Davis, 68 E.M. 2019, noted that ''[t]here are no statutes or Rules of this Court authorizing or governing detainers for defendants on county probation and parole.'' In Davis, the petitioner sought to bar the use of risk assessment tools for the automatic lodging of detainers. Instead, a defendant believed to have violated county probation and parole should only be detained upon a showing of significant risk to the safety of the community based on an assessment of all relevant evidence.
Risk assessment tools, consonant with Rule 520.19, should not be used as the sole basis for decision-making. When properly validated, such tools may be used as one factor of many to inform decision-making, but never as a substitute.
The proposed rule governs the lodging of detainers when the supervising authority believes that the alleged conduct of the defendant creates an ongoing risk to the public's safety or to the defendant's safety or creates a risk of non-appearance at the revocation hearing. In that vein, the court should have authority to release a detained defendant subject to conditions in a manner similar to bail. Additionally, decisions to detain a defendant should be subject to judicial review. See, e.g., Gagnon v. Scarpelli, 411 U.S. 778 (1973).
The rule is intended to address the procedure when an authority supervising a defendant on county probation or parole believes the defendant has violated a condition of probation or parole. Those violations are grouped as either technical violations or new criminal charges. This grouping serves to separate new criminal charges from other technical violations because this type of violation has more often resulted in the lodging of a detainer.
The options appearing under each grouping are not mandated; a supervising authority can always choose not to proceed with further action. The supervising authority can also take the informal action of counseling or warning the defendant if the supervising authority believes the defendant violated a term. Because ''no action'' or ''informal action'' does not implicate court procedures, those options are not included in the rule.
Per paragraph (A), the supervising authority has three escalating options when a technical violation is alleged: 1) serve notice to appear for a revocation hearing; 2) arrest pursuant to 42 Pa.C.S. § 9771.1; or 3) lodge a detainer. The arrest option was included because of the amendment of 42 Pa.C.S. § 9771.1 by Act 115 of 2019. The Committee is not aware of any judicial districts that promulgated an implementing local rule, as permitted by Section 9913(j) and required by Rule 105. Of course, the rule does not provide the exclusive basis for a supervising authority to arrest a defendant for a violation—that is also provided for generally by 42 Pa.C.S. § 9913.
While there may be few instances warranting a detainer for technical violations, the rule contemplates some scenarios where a detainer may be justified. Accordingly, this option is reflected in paragraph (A)(3).
Per paragraph (B), the probation or parole officer has two options with a new criminal arrest: 1) serve notice to appear for a revocation hearing; or 2) lodge a detainer. The arrest option was not included because the defendant would likely be arrested on a new criminal charge or served a summons. In the matter of a summons, the supervising authority could arrest the defendant pursuant to 42 Pa.C.S. § 9913.
Paragraph (B)(2)(i) permits a defendant to request a detainer. This would allow the defendant to receive credit for the time in detention and have that credit applied to any sanction for the violation if the defendant is not sentenced to prison on the new criminal charge. This would avoid ''dead time,'' which is time in detention that is neither applied to the new criminal charge nor to the violation. In practice, some judges may factor in ''dead time'' at sentencing for the violation, but this provision would make that practice applicable statewide. Preserving the time under a detainer may be particularly relevant if there is a ''Daisy Kates'' hearing whereby the Commonwealth proceeds with the violation before the new criminal charge is disposed. See Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973).
Paragraphs (B)(2)(ii) and (iii) permit the lodging of a detainer only if the defendant is not detained on the new charge and the supervising authority believes the defendant has committed a technical violation beyond the fact of the new criminal charge. This restriction on lodging a detainer accommodates the fact that the new charge will be the subject of a bail determination specific to that charge. This provision was not intended to affect the possibility of revocation as a sanction; rather, it operates to limit the circumstances for detaining a defendant prior to revocation.
Regarding paragraph (C), the bases for a detainer are similar to the purpose of bail in Rule 520.1: 1) risk to public safety; 2) risk to the defendant's safety; and 3) risk of failure to appear at the revocation hearing.
Paragraph (D) provides for a Gagnon I hearing within 14 days of detention unless a defendant has requested a detainer. The rule provides for the expiration of the detainer if a hearing is not held within that time.
Concerning the timing of the Gagnon I hearing, a 72-hour requirement, similar to Rule 150, was considered, but rejected because it might conflict with the operation of specialty courts where judges have dedicated oversight of a defendant. Bringing a defendant before another judge who may not be familiar with the defendant or the program seemed antithetical to the concept of specialized courts. Bringing the defendant before a judge other than the one supervising the defendant's release would also increase the probability that the defendant will be either released or detained without full consideration of defendant-specific risks and needs.
Further, the principle catalyzing expedited pretrial bail determinations, i.e., a presumption of innocence, did not extend to matters involving a convicted defendant. While the defendant's interest in liberty may be as great in either scenario, the weight to be given to that interest is lightened in post-conviction proceedings. Compare Rule 520.2 (Bail Determination Before Verdict) with Rule 520.3 (Bail Determination After Finding of Guilt).
Ultimately, a 14-day hearing deadline (''no later than'') is proposed for the purpose of comments. This time limit is intended to allow sufficient time for the defendant to appear before the proper judge, while addressing concerns about prolonged and unnecessary detention. With this relatively wider window for a hearing, the language providing for the expiration of the detainer after 14 days without a hearing was thought more acceptable. This mandate was intended to be incentive for courts to conduct timely hearings. Of course, there is nothing to stop the Commonwealth from seeking a continuance or the supervising authority from lodging another detainer.
Rule 708.2. Violation of Probation or Parole: Gagnon II Hearing and Disposition
This rule is based largely on current Rule 708 and concerns Gagnon II hearing procedures. The only significant changes have been to the Comment.
Rule 1003(C) (Summons and Arrest Warrant Procedures)—(D) (Preliminary Arraignment)
Rule 1003 was reviewed in light of Rule 509 (Use of Summons or Warrant of Arrest in Court Cases) and Rule 519 (Procedure in Court Cases Initiated by Arrest Without Warrant). The review focused on two aspects of Rule 1003: the use of summons in paragraph (C) and the requirement of a preliminary arraignment in paragraph (D).
Currently, Rule 1003(C)(1) gives the issuing authority in the First Judicial District (''FJD'') the discretion to proceed with a summons rather than an arrest warrant when the offense is punishable for a term of imprisonment not more than one year. Rule 509(1) affords an issuing authority outside of the FJD greater discretion, including when the offense is punishable for a term of imprisonment not more than two years. In other words, the issuing authority can proceed with a summons in the FJD in the case of a misdemeanor of the 3rd degree while the issuing authority can proceed with a summons outside the FJD in the case of a misdemeanor of the 2nd or 3rd degree.
As proposed, Rule 1003(C)(1) and Rule 509(1) would be consistent, and issuing authorities in the FJD and outside the FJD would have the same authority. This approach would be in harmony with other changes to bail practice intended to foster consistent, statewide practice. Any justification to maintain this dissimilarity is specifically invited via comment.
Current Rule 1003(C)(2)(a) requires an issuing authority in the FJD to issue a warrant of arrest when an offense charged is punishable by imprisonment for a term of more than five years. Outside of the FJD, an issuing authority is required to issue a warrant of arrest when one or more of the offenses charged is a felony or murder. See Pa.R.Crim.P. 509(2)(a). For consistency, proposed Rule 1003(C)(2)(a) would be made consistent with Rule 509(2)(a). Additionally, this revision would make it easier for the reader to understand the rule without having to consult 18 Pa.C.S. §§ 1103 (Sentence of Imprisonment for Felony) and 1104 (Sentence of Imprisonment for Misdemeanors). Such a revision would also obviate the need for Rule 1003(C)(2)(f).
The revision to Rule 1003(C)(2), however, would impact current practice in the FJD. Referring to the offense grading rather than to the possible sentence will result in requiring an arrest warrant in some cases where a summons is currently permitted. For example, under the Controlled Substance, Drug, Device and Cosmetic Act, there are felony offenses that provide for a maximum sentence of five years. See, e.g., 35 P.S. § 780-113(f)(2). Under the current rule, a summons would be permitted because the maximum sentence could not be more than five years. However, the proposed amendment would require the issuance of an arrest warrant as the offense is a felony. Comments favoring the disparate treatment of defendants based upon geography—where location determines if you are summoned or if you are arrested—are welcome.
Next considered was whether Rule 1003(D) should be revised to give an arresting officer in Philadelphia County discretion to release a defendant following a warrantless arrest rather than requiring the defendant to be brought before the issuing authority for a preliminary arraignment. The Committee is unaware of the rationale for not having Rule 1003(D) be the same as Rule 519(B). The District Attorney may continue to make charging decisions before a summons is issued through the local option pursuant to Rule 507 (requiring district attorney approval of police complaints prior to filing). Therefore, paragraph (D) is proposed to be bifurcated into paragraph (D)(1) and paragraph (D)(2) based upon the language of Rule 519(B). All comments are welcome particularly on this aspect of the proposal.
The Committee takes note that the Comment to Rule 1003 concerning paragraph (E) and the use of hearsay to establish a prima facie case could be updated in light of Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020) (prima facie case may not be established solely on hearsay evidence). However, updating rules, including Rule 542, that govern preliminary hearings is a separate matter for consideration by the Criminal Procedural Rules Committee.
[Pa.B. Doc. No. 22-47. Filed for public inspection January 7, 2022, 9:00 a.m.]
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