THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
[234 PA. CODE CH. 6000]
Amendments to Rules Governing Writs of Certiorari in Philadelphia Municipal Court; No. 206; Doc. No. 2
[26 Pa.B. 989]
Order Per Curiam:
Now, this 21st day of February, 1996, upon the recommendation of the Criminal Procedural Rules Committee, the proposal having been published before adoption at 18 Pa.B. 1099 (March 12, 1988), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 544, No. 2), and a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules of Criminal Procedure 6006, 6008, 6009, and 6011 are hereby amended, all in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 1996.
The Criminal Procedural Rules Committee has prepared a Final Report explaining the changes which are the subject of the Court's Order. The Final Report follows the Court's Order.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 6000. RULES OF CRIMINAL PROCEDURE FOR THE MUNICIPAL COURT OF PHILADELPHIA Rule 6006. Notice of Right to Appeal [and] or to Petition for Certiorari; Guilty Plea Challenge Procedure.
Immediately after the imposition of sentence, the judge shall inform the defendant:
(a) in the case of a trial and verdict of guilty[,]:
(1) of the right to file a petition for a writ of certiorari within 30 days without costs or to appeal for trial de novo within 30 days without costs[,];
(2) of the right to jury trial on appeal[,]; and
(3) that the charge on which the defendant was found guilty in the Municipal Court will be considered by the district attorney as the basis for the preparation of an information after the filing of the notice of appeal[.];
(b) in the case of a plea of guilty[,]:
(1) of the right to file a motion challenging the validity of the plea or the denial of a motion to withdraw the plea[,];
(2) of the 10 day time limit within which such motion must be filed[,];
(3) of the right to be represented by counsel in preparing and litigating the motion and to have counsel appointed in the event the defendant is unable to afford counsel[,];
(4) of the right to appeal from the final order disposing of the motion within 30 days after such order[, and];
(5) that only the claims raised in the motion may be raised on appeal[,]; and
(c) in any case, of the right to counsel to represent the defendant on appeal and of the right to have counsel appointed to represent the defendant on appeal in the event the defendant is unable to afford counsel.
Official Note: Adopted December 30, 1968, effective January 1, 1969; amended July 1, 1980, effective August 1, 1980; amended February 21, 1996, effective July 1, 1996.
Comment For the right to file a petition for a writ of certiorari to the court of common pleas, see Article V, Section 26 of the Pennsylvania Constitution, and the Judicial Code, 42 Pa.C.S. § 934. See also Commonwealth v. Speights, 509 A.2d 1263 (Pa. Super. 1986) (petition challenging sufficiency of the evidence), and Commonwealth v. Frazier, 471 A.2d 866 (Pa. Super. 1984) (petition alleging that judge erred in denying motion to suppress). Certiorari is available in non-summary cases only. Compare Rule 86(g).
Committee Explanatory Reports: Final Report explaining the February 21, 1996 amendments published with the Court's Order at 26 Pa.B. 991 (March 9, 1996).
Rule 6008. [Form of] Contents of Notice of Appeal or Petition for Certiorari.
[The notice of appeal shall be substantially in the following form:]
[Notice of Appeal] (a) The notice shall state which method of review is being sought in the court of common pleas by indicating whether it is a notice of appeal or notice of a petition for a writ of certiorari.
(b) The notice shall contain the following information:
[(a)] (1) The name and address of the defendant.
[(b)] (2) The date of imposition of sentence.
[(c)] (3) The charges upon which the defendant was convicted.
[(d)] (4) The name of the sentencing judge.
Official Note: Adopted December 30, 1968, effective January 1, 1969; amended February 21, 1996, effective July 1, 1996.
Comment The notice form previously set forth in this rule was deleted in 1996 because it is no longer necessary to control the specific form by rule.
Committee Explanatory Reports: Final Report explaining the February 21, 1996 amendments published with the Court's Order at 26 Pa.B. 991 (March 9, 1996).
Rule 6009. Notice to Municipal Court Judge and District Attorney of Appeal or of Petition for Certiorari.
The Clerk of Municipal Court shall notify the sentencing judge and the [District Attorney] district attorney of the filing of the appeal or the petition for a writ of certiorari.
Official Note: Adopted December 30, 1968, effective January 1, 1969; amended February 21, 1996, effective July 1, 1996.
Committee Explanatory Reports: Final Report explaining the February 21, 1996 amendments published with the Court's Order at 26 Pa.B. 991 (March 9, 1996).
Rule 6011. Bail.
(a) Prior to verdict, an existing bail order may be modified by a Municipal Court judge in a Municipal Court case in the same manner as a judge of the court of common pleas may modify a bail order pursuant to Rule 4008(b), (c), and (d).
(b) In all cases in which a sentence is imposed, the execution of sentence shall be stayed and the bail previously set shall continue, except as provided in this rule.
(1) If a notice of appeal or a petition for a writ of certiorari is not filed within 30 days, the judge shall direct the defendant to appear before the judge for the execution of sentence.
(2) If a notice of appeal is filed within 30 days, the bail previously set shall continue.
(3) If a petition for a writ of certiorari is filed within 30 days, bail shall be determined as provided in Rule 4009(B)(1) and (2).
(c) The attorney for the Commonwealth may make application to the Court of Common Pleas to increase the amount of bail upon cause shown.
Official Note: Adopted December 30, 1968, effective January 1, 1969; amended July 1, 1980, effective August 1, 1980; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; amended February 21, 1996, effective July 1, 1996.
Comment Paragraph (a) was added in 1995 to conform the practice for Municipal Court judges modifying a bail order before verdict in Municipal Court cases with the practice set forth in Rule 4008 for judges of the common pleas court.
[The 1995 amendments to paragraphs (b) and (c) are editorial changes and are not intended to change present practice.]
Committee Explanatory Reports: Final Report explaining the September 13, 1995 amendments published with Court's Order at 25 Pa.B. 4116 (September 30, 1995).
Final Report explaining the February 21, 1996 amendments published with the Court's Order at 26 Pa.B. 991 (March 9, 1996).
FINAL REPORT
Amendments to Chapter 6000: Writs of
Certiorari in Philadelphia Municipal CourtOn February 21, 1996, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court of Pennsylvania amended Rules of Criminal Procedure 6006, 6008, 6009, and 6011 to expressly recognize petitions for writs of certiorari from the Philadelphia Court of Common Pleas, a procedure already in practice in Municipal Court cases and provided for by law. PA. CONST. Art. V, § 26; 42 Pa.C.S. § 934.
The consideration of the procedures for writs of certiorari arose during the course of the Committee's examination of post-verdict procedures. Several members noted that, although the Philadelphia Public Defender's office utilized petitions for writs of certiorari fairly frequently, many members of the private bar apparently were not aware of the continued availability of certiorari as an alternative to an appeal for a trial de novo in the court of common pleas. We therefore agreed that the rules should expressly provide for this procedure. An explanation of the rule changes follows.
1. Rule 6006 (Notice of Right to Appeal or to Petition for Certiorari; Guilty Plea Challenge Procedure)
(a) Paragraph (a) has been amended to provide notice to the defendant of the right to petition for a writ of certiorari or to appeal for a trial de novo within thirty days of sentencing. Worded in the disjunctive, the amendment makes it clear that defendants may petition for a writ of certiorari or appeal for a trial de novo, but not both.
(b) The revised Comment provides the constitutional and statutory bases for writs of certiorari, and cites two cases which illustrate the function of the writ in Municipal Court cases. See Commonwealth v. Speights, 509 A.2d 1263 (Pa. Super. 1986) (petition challenging sufficiency of the evidence), and Commonwealth v. Frazier, 471 A.2d 866 (Pa. Super. 1984) (petition alleging that judge erred in denying motion to suppress).
2. Rule 6008 (Contents of Notice of Appeal or Petition for Certiorari)
Originally a ''form'' rule, Rule 6008 has been made a ''content'' rule, in keeping with the Committee's general policy that forms should be developed administratively and not by rule. In addition, the rule now includes the required contents for the notice of a petition for certiorari.
3. Rule 6009 (Notice to Municipal Court Judge and District Attorney of Appeal or of Petition for Certiorari)
The amendment to Rule 6009 requires that the defendant give notice of the filing of a petition for certiorari to the Municipal Court judge and the district attorney.
4. Rule 6011 (Bail)
(a) The procedures governing bail after a sentence is imposed in a Municipal Court case have been expanded to provide for bail when notice of a petition for certiorari has been filed.
(b) The amendments clarify the different bail considerations implicated when notice of a petition for a writ of certiorari (rather than an appeal) has been filed. When an appeal is filed for a trial de novo, it makes sense for the amount of bail set for the Municipal Court trial to continue, because the appeal from the Municipal Court conviction voids the original trial. A petition for certiorari, on the other hand, leaves the conviction intact and seeks review on a pure question of law. As such, the case is in an ''after-sentencing'' posture for the purposes of bail, and the bail set for the Municipal Court trial should be reconsidered. To make these distinctions clear, paragraph (b)(2) provides that if a notice of appeal for a trial de novo is filed, the bail previously set continues. Under paragraph (b)(3), if a petition for certiorari is filed, the general rule governing bail after sentencing applies. See Pa.R. Crim.P. 4009(B)(1) and (2), effective April 1, 1996.
[Pa.B. Doc. No. 96-335. Filed for public inspection March 8, 1996, 9:00 a.m.]
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