THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
[234 PA. CODE CHS. 20 AND 100]
Proposal to adopt new Rule 143; Amend Rule 23; and Revise the Comment to Rule 107
[28 Pa.B. 1505]
Introduction The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania adopt proposed new Rule 143 (Reinstituting Charges following Withdrawal or Dismissal), amend Rule 23 (Continuous Availability and Temporary Assignment of Issuing Authorities), and revise the Comment to Rule 107 (Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth--Local Option). This proposal sets forth the procedures for an attorney for the Commonwealth to refile a complaint when it has been withdrawn or dismissed at, or prior to, a preliminary hearing, and, in certain cases, to request that a different issuing authority be assigned to conduct the preliminary hearing. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.
The text of the proposed rule changes precedes the Report.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel, Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Criminal Procedural Rules Committee, P. O. Box 1325, Doylestown, PA 18901, no later than Wednesday, April 29, 1998.
By the Criminal Procedural Rules Committee:
FRANCIS BARRY MCCARTHY,
Chair(Editor's Note: The following is a new rule. It is printed in regular type to enhance readability.)
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 100. PROCEDURE IN COURT CASES Rule 143. Reinstituting Charges Following Withdrawal or Dismissal.
(A) When charges are dismissed or withdrawn at, or prior to, a preliminary hearing, the attorney for the Commonwealth may reinstitute the charges by refiling a complaint with the issuing authority who dismissed the charges.
(B) Following the refiling of a complaint pursuant to paragraph (A), if the attorney for the Commonwealth determines that the preliminary hearing should be conducted by a different issuing authority, the attorney shall file a Rule 23 motion with the clerk of courts requesting that the president judge assign a different issuing authority to conduct the preliminary hearing. The motion shall set forth the reasons for requesting a different issuing authority.
Official Note: Original Rule 123, adopted June 30, 1964, effective January 1, 1965, suspended January 31, 1970, effective May 1, 1970. New Rule 123 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 143 September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; amended August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; renumbered Rule 142 , 1998, effective , 1998. New Rule 143 adopted , 1998; effective , 1998.
Comment This rule provides the procedures for reinstituting criminal charges following their withdrawal or dismissal at, or prior to, the preliminary hearing.
The authority of the attorney for the Commonwealth to reinstitute charges which have been dismissed at the preliminary hearing is well established by case law. See, e.g., McNair's Petition, 187 A. 498 (Pa. 1936); Commonwealth v. Thorpe, 701 A.2d 488 (Pa. 1997). This authority, however, is not unlimited. First, the charges must be reinstituted prior to the expiration of the applicable statute(s) of limitations. See Commonwealth v. Thorpe, 701 A.2d 488 (Pa. 1997). In addition, the courts have held that the reinstitution may be barred in a case in which the Commonwealth has repeatedly rearrested the defendant in order to harass him or her, or if the rearrest results in prejudice. See Commonwealth v. Thorpe, 701 A.2d 488 (Pa. 1997); Commonwealth v. Shoop, 617 A.2d 351 (Pa.Super. 1992).
The decision to reinstitute charges must be made by the attorney for the Commonwealth. Therefore, in cases in which no attorney for the Commonwealth was present at the preliminary hearing, the police officer may not refile the complaint without the written authorization of the attorney for the Commonwealth. See Rule 107 (Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth--Local Option) for procedures for prior approval of complaints.
Pursuant to paragraph (A), in the usual case, charges will be reinstituted by filing a complaint with the issuing authority who dismissed the charges. However, there may be cases in which the attorney for the Commonwealth determines that a different issuing authority should conduct the preliminary hearing, such as when an error of law is made by the issuing authority in finding that the Commonwealth did not sustain its burden to establish a prima facie case. Paragraph (B) requires that, in these cases, the attorney for the Commonwealth must file a petition with the court of common pleas requesting that the president judge assign a different issuing authority to conduct the preliminary hearing. For the procedure for requesting assignment of a different issuing authority, see Rule 23.
See Chapter 9000 for the procedures governing motions.
Committee Explanatory Reports:
Report explaining the , 1998 amendments concerning reinstitution of charges published with the Court's Order at 28 Pa.B. 1508 (March 28, 1998).
CHAPTER 20. ISSUING AUTHORITIES: VENUE, LOCATIONS, AND RECORDING OF PROCEEDINGS Rule 23. Continuous Availability and Temporary Assignment of Issuing Authorities.
[(a)] (A) Continuous Availability
(1) The [President Judge] president judge of each judicial district shall be responsible for insuring the availability at all times within the judicial district of at least one issuing authority.
(2) The district justice assigned to be on duty after business hours shall set bail as provided in Chapter 4000, and shall accept deposits of bail in any case pending in any magisterial district within the judicial district.
[(b)] (B) Temporary Assignment
(1) The [President Judge] president judge may assign temporarily the issuing authority of any magisterial district to serve another magisterial district whenever such assignment is needed:
(a) to satisfy the requirements of paragraph [(a)] (A) (1)[,];
(b) to insure fair and impartial proceedings[,];
(c) to conduct a preliminary hearing pursuant to Rule 143(B); or
(d) otherwise for the efficient administration of justice.
One or more issuing authorities may be so assigned to serve one or more magisterial districts.
(2) Whenever a temporary assignment is made under this rule, notice of such assignment shall be filed with the clerk of courts where it shall be available for police agencies and other interested persons.
(3) A motion may be filed requesting a temporary assignment under paragraph [(b)] (B)(1) on the ground that the assignment is needed to insure fair and impartial proceedings. Reasonable notice and opportunity to respond shall be provided to the parties.
(4) A motion shall be filed requesting a temporary assignment under paragraph (B)(1)(c) whenever the attorney for the Commonwealth elects to proceed under Rule 143(B) following the refiling of a complaint.
Official Note: Formerly Rule 152, adopted January 16, 1970, effective immediately; amended and renumbered Rule 23 September 18, 1973, effective January 1, 1974; amended October 21, 1983, effective January 1, 1984; amended February 27, 1995, effective July 1, 1995; amended , 1998, effective , 1998.
Comment This rule is intended to impose the responsibility on the president judge to prevent the violation of the rights of defendants caused by the lack of availability of the district justice.
Paragraph [(a)](A)(2) requires a district justice on duty after business hours to set bail, as provided by law, and to accept deposits of bail in any case pending in any magisterial district within the judicial district, so that a ''defendant may be admitted to bail on any date and at any time.'' Rule 4001(b).
Nothing in this rule is intended to preclude judicial districts from continuing established procedures or establishing new procedures for the after-hours acceptance of deposits of bail by a representative of the clerk of courts' office.
Paragraphs [(b)] (B)(1)(b) and (3) make explicit the authority of president judges to assign issuing authorities when necessary to insure fair and impartial proceedings, and to provide a procedure for a party to request such an assignment. Temporary assignment in this situation is intended to cover what might otherwise be referred to as ''change of venue'' at the district justice level. See, e.g., Sufrich v. Commonwealth, 447 A.2d 1124 (Pa.Cmwlth. 1982).
The motion procedure of paragraph [(b)](B)(3) is intended [only] to apply when a party requests temporary assignment to insure fair and impartial proceedings. The president judge may, of course, order a response and schedule a hearing with regard to such a motion. However, this paragraph is not intended to require ''formal hearing . . . beyond the narrow context of a motion for temporary assignment of issuing authority to insure fair and impartial proceedings predicated upon allegations which impugn the character or competence of the assigned issuing authority and which seek the recusal of the assigned issuing authority.'' See Commonwealth v. Allem, 532 A.2d 845 (Pa.Super. 1987) (filing and service of the written motion and answer, and allowance of oral argument were more than adequate to meet the rule's requirements).
Paragraphs (B)(1)(c) and (4) govern those situations in which the attorney for the Commonwealth, after refiling the complaint following the withdrawal or dismissal of any criminal charges at, or prior to, a preliminary hearing, determines that the preliminary hearing should be conducted by a different issuing authority. See also Rule 143 (Reinstituting Charges following Withdrawal or Dismissal).
The motion procedure is not intended to apply in any of the many other situations in which president judges make temporary assignments of issuing authorities; in all these other situations the president judges may make temporary assignments on their own without any motion, notice, response, or hearing.
Committee Explanatory Reports:
Final Report explaining the February 27, 1995 amendment published with the Court's Order at 25 Pa.B. 936 (March 18, 1995).
Report explaining the , 1998 amendments concerning assignment of an issuing authority to conduct a preliminary hearing published at 28 Pa.B. 1508 (March 28, 1998).
CHAPTER 100. PROCEDURE IN COURT CASES
PART II. COMPLAINT PROCEDURES Rule 107. Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth--Local Option.
* * * * * Official Note: Adopted December 11, 1981, effective July 1, 1982; Comment revised July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; renumbered Rule 107 and amended August 9, 1994, effective January 1, 1995; Comment revised , 1998, effective , 1998.
Comment * * * * * As used in this rule, ''attorney for the Commonwealth'' is intended to include not only the District Attorney and any deputy or assistant district attorney in the county, but also the Attorney General, and any deputy or assistant attorney general, in those cases which the Attorney General is authorized by law to prosecute in the county.
See Rule 2002A for a similar option as to search warrant applications.
See Rule 143 for the procedures for refiling of the complaint, which requires approval by the attorney for the Commonwealth.
Committee Explanatory Reports:
Report explaining the August 9, 1994 amendments published at 22 Pa.B. 6 (January 4, 1992); Final Report published with the Court's Order at 24 Pa.B. 4342 (August 27, 1994).
Report explaining the , 1998 revision concerning refiling of complaints published at 28 Pa.B. 1508 (March 28, 1998).
PART IV. PROCEEDINGS BEFORE ISSUING AUTHORITIES Rule 141. Preliminary Hearing. [Rescinded].
Official Note: Formerly Rule 120, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970; revised January 31, 1970, effective May 1, 1970; renumbered and amended September 18, 1973, effective January 1, 1974; amended June 30, 1975, effective July 30, 1975; amended October 21, 1977, effective January 1, 1978; paragraph (D) amended April 26, 1979, effective July 1, 1979; amended February 13, 1998, effective July 1, 1998; rescinded , effective , and replaced by new Rule 141.
[Comment As the judicial officer presiding at the preliminary hearing, the issuing authority controls the conduct of the preliminary hearing generally. When an attorney appears on behalf of the Commonwealth, the prosecution of the case is under the control of that attorney. When no attorney appears at the preliminary hearing on behalf of the Commonwealth, the issuing authority may ask questions of any witness who testifies, and the affiant may request the issuing authority to ask specific questions. In the appropriate circumstances, the issuing authority may also permit the affiant to question Commonwealth witnesses, cross-examine defense witnesses, and make recommendations about the case to the issuing authority.
Paragraph (C)(3) is intended to make clear that the defendant may call witnesses at a preliminary hearing only to negate the existence of a prima facie case, and not merely for the purpose of discovering the Commonwealth's case. The modification changes the language of the rule interpreted by the Court in Commonwealth v. Mullen, 333 A.2d 755 (Pa. 1975). This amendment was made to preserve the limited function of a preliminary hearing.]
Committee Explanatory Reports:
Final Report explaining the February 13, 1998 amendments concerning questioning of witnesses published with the Court's Order at 28 Pa.B. 1127 (February 28, 1998).
Report explaining the , 1998 rescission and consolidation of Rules 141 and 142 published at 28 Pa.B. 1508 (March 28, 1998).
Rule 142. Continuance of a Premiminary Hearing. [Rescinded].
Official Note: Formerly Rule 124 adopted June 30, 1964, effective January 1, 1965, suspended effective May 1, 1970; present rule adopted January 31, 1970, effective May 1, 1970; renumbered September 18, 1973, effective January 1, 1974; amended October 22, 1981, effective January 1, 1982; effective date extended to July 1, 1982; amended July 12, 1985, effective January 1, 1986, effective date extended to July 1, 1986; rescinded , 1998, effective , 1998, and replaced by new rule 141.
[Comment: For the contents of the transcript, see Rule 26.]
Committee Explanatory Reports:
Report explaining the , 1998 rescission and consolidation of Rules 141 and 142 published at 28 Pa.B. 1508 (March 28, 1998).
(Editor's Note: The following is a new rule. It is printed in regular type to enhance readability.)
Rule 141. Preliminary Hearing; Continuances.
(A) The attorney for the Commonwealth may appear at a preliminary hearing and:
(1) assume charge of the prosecution; and
(2) recommend to the issuing authority that the defendant be discharged or bound over to court according to law.
(B) When no attorney appears on behalf of the Commonwealth at a preliminary hearing, the affiant may be permitted to ask questions of any witness who testifies.
(C) The defendant shall be present at any preliminary hearing except as provided in these rules, and may:
(1) be represented by counsel;
(2) cross-examine witnesses and inspect physical evidence offered against the defendant;
(3) call witnesses on the defendant's behalf, other than witnesses to the defendant's good reputation only;
(4) offer evidence on the defendant's own behalf, and testify; and
(5) make written notes of the proceedings, or have counsel do so, or make a stenographic, mechanical, or electronic record of the proceedings.
(D) If a prima facie case of the defendant's guilt is not established at the preliminary hearing, and no application for a continuance, supported by reasonable grounds, is made by an interested person, and no reason for a continuance otherwise appears, the issuing authority shall discharge the defendant.
(E) Continuances
The issuing authority may, for cause shown, grant a continuance and shall note on the transcript every continuance together with:
(1) the grounds for granting each continuance;
(2) the identity of the party requesting such continuance; and
(3) the new date and the reasons that the particular date was chosen.
Official Note: Formerly Rule 120, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970; revised January 31, 1970, effective May 1, 1970; renumbered and amended September 18, 1973, effective January 1, 1974; amended June 30, 1975, effective July 30, 1975; amended October 21, 1977, effective January 1, 1978; paragraph (D) amended April 26, 1979, effective July 1, 1979; amended February 13, 1998, effective July 1, 1998; rescinded , 1998, effective , 1998. New Rule 141 adopted , 1998, effective , 1998.
Comment As the judicial officer presiding at the preliminary hearing, the issuing authority controls the conduct of the preliminary hearing generally. When an attorney appears on behalf of the Commonwealth, the prosecution of the case is under the control of that attorney. When no attorney appears at the preliminary hearing on behalf of the Commonwealth, the issuing authority may ask questions of any witness who testifies, and the affiant may request the issuing authority to ask specific questions. In the appropriate circumstances, the issuing authority may also permit the affiant to question Commonwealth witnesses, cross-examine defense witnesses, and make recommendations about the case to the issuing authority.
Paragraph (C)(3) is intended to make clear that the defendant may call witnesses at a preliminary hearing only to negate the existence of a prima facie case, and not merely for the purpose of discovering the Commonwealth's case. The modification changes the language of the rule interpreted by the Court in Commonwealth v. Mullen, 333 A.2d 755 (Pa. 1975). This amendment was made to preserve the limited function of a preliminary hearing.
For the contents of the transcript, see Rule 26.
Committee Explanatory Reports:
Final Report explaining the February 13, 1998 amendments concerning questioning of witnesses published with the Court's Order at 28 Pa.B. 1127 (February 28, 1998).
Report explaining the , 1998 rescission and consolidation of Rules 141 and 142 published at 28 Pa.B. 1508 (March 28, 1998).
Rule [143] 142. Disposition of Case at Preliminary Hearing.
* * * * * Official Note: Original Rule 123, adopted June 30, 1964, effective January 1, 1965, suspended January 31, 1970, effective May 1, 1970. New Rule 123 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 143 September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; amended August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; renumbered Rule 142 , 1998, effective , 1998.
Comment Paragraph (b) was amended in 1983 to reflect the fact that a bail determination will already have been made at the preliminary arraignment, except in those cases where, pursuant to a summons, the defendant's first appearance is at the preliminary hearing. See Rules 109 and 110.
Committee Explanatory Reports:
Report explaining the August 9, 1994 amendments published at 22 Pa.B. 6 (January 4, 1992); Final Report published with the Court's Order at 24 Pa.B. 4342 (August 27, 1994).
Final Report explaining the September 13, 1995 amendments published at 25 Pa.B. 4116 (September 30, 1995).
Report explaining the , 1998 renumbering of rule published with the Court's Order at 28 Pa.B. 1508 (March 28, 1998).
REPORT
Proposed New Pa.R.Crim.P. 143;
Amendments to Rule 23, Revision of the Rule 107 Comment;
Joinder of Rules 141 and 142 as New Rule 141;
and Renumbering of Present Rule 143
Reinstitution of Charges Following Withdrawal or Dismissal A. Background
Several correspondents have requested that the Committee consider amending the Criminal Rules to provide the procedures for reinstituting a criminal case following a dismissal at the preliminary hearing. They pointed out that there is no uniformity in the manner in which these cases are handled in Pennsylvania. Some of the correspondents also expressed concern that, without some controls in the Criminal Rules, some defendants will be unnecessarily subjected to multiple rearrests for the same offense. After discussing this correspondence, which confirmed their own experiences that there are no uniform procedures statewide for handling the reinstitution of charges, the members agreed to review the matter.
We first examined the case law. The research revealed that the Pennsylvania courts have consistently held that the attorney for the Commonwealth has unlimited discretion to reinstitute a criminal case after it has been withdrawn or dismissed prior to the conclusion of the preliminary hearing, unless there is a showing of unreasonable intrusion, coercion, or harassment of the defendant by the government, or the process of reinstituting criminal charges results in prejudice to the defendant. See Commonwealth v. Thorpe, 701 A.2d 488 (Pa. 1997); Commonwealth v. Shoop, 617 A.2d 351 (Pa.Super. 1992). The courts have also held that, if the attorney for the Commonwealth wants the case to proceed, then the attorney must reinstitute the charges, rather than appeal the decision of the district justice or seek a writ of certiorari. See, e.g., Liciaga v. Court of Common Pleas, 566 A.2d 246 (Pa. 1989).
While agreeing on the foregoing, the courts have nevertheless declined to mandate one procedure for handling these cases, and have addressed the matter on a case-by-case basis. This fact, together with the varying postures in which these cases have reached the courts, has resulted in a confusing and perceptibly unmanageable body of law concerning the procedures to reinstitute proceedings following a dismissal at the preliminary hearing. See, e.g., McNair's Petition, 187 A. 498 (Pa. 1936); Commonwealth v. Thorpe, 701 A.2d 488 (Pa. 1997); Commonwealth v. Shoop, 617 A.2d 351 (Pa.Super. 1992)).
In view of the revelations in the case law, and the suggestions from the correspondents that there is no uniformity, the Committee also conducted a survey of all the District Attorneys in Pennsylvania to determine how, in fact, these cases are being handled statewide. We received 43 responses, which were representative of the entire state. The responses revealed that although some District Attorneys refile the complaint with a different issuing authority, the majority of District Attorneys refile the complaint with the same issuing authority, and if they determine that the issuing authority should not conduct the preliminary hearing, then they request reassignment through the court of common pleas. Although in some counties, the District Attorney must seek permission from the president judge to refile a complaint, in most magisterial districts, the decision whether to refile is entirely within the discretion of the District Attorney. In one county, however, the president judge has limited the District Attorney to one refiling. A few District Attorneys reported that, in refiling situations, no notice is provided to the defendant when they request assignment of a different issuing authority to conduct the preliminary hearing. In some counties, the complaint is refiled, and the burden is upon the issuing authority to request that the case be transferred to another issuing authority. Several District Attorneys indicated that the procedures they use are ''informal,'' and used only on a ''case-by-case'' basis. In addition, a number of District Attorneys commented that they rarely encounter the situation.
Based on the research, the findings of the survey, and the members' own experiences, and recognizing the Court's interest in fostering a uniform, statewide judicial system,1 the Committee agreed that the Criminal Rules should be amended to provide a uniform procedure for the reinstitution of criminal proceedings following a withdrawal or dismissal at, or prior to, the conclusion of the preliminary hearing.
B. Discussion of Rule Changes
1. Introduction
Once the Committee agreed that the Criminal Rules governing the reinstitution of criminal charges when a case has been withdrawn or dismissed, at or prior to, the preliminary hearing, should be recommended to the Court, the members reexamined the procedures approved by the courts, as well as the procedures indicated in the survey, the federal courts, and other state courts. As a result, and so that the proposed changes may take effect without a significant disruption of procedures most often used in the several counties, the Committee is proposing rules which mirror the most common procedures reported by the District Attorneys in the survey, and account for the case law which has developed in this area.
2. New Rule 143 (Reinstituting Charges following Withdrawal or Dismissal)
New Rule 143 establishes the specific procedures for reinstituting criminal charges following the withdrawal or dismissal at, or prior to, the preliminary hearing. The Committee discussed at length how to handle the various situations in which these cases arise, recognizing, for example, that for any number of reasons, cases may be withdrawn before the preliminary hearing, cases may be dismissed at the beginning of the preliminary hearing because a witness has failed to appear, or cases may be dismissed at the conclusion of the preliminary hearing because the issuing authority makes a finding that the prosecution failed to make out a prima facie case. The Committee also was aware that, although the attorney for the Commonwealth has discretion whether to reinstitute criminal charges, there are some restrictions on that discretion, such as when the statute of limitations has run, or the attorney is rearresting the defendant for purposes of harassment, or the rearrest results in prejudice to the defendant, and that, in these cases, there should be a mechanism for the defendant to raise the issue and for the court to review the case.
Initially, the Committee considered providing that, in the usual case when it was determined that the same issuing authority should handle the case, the attorney for the Commonwealth would refile the complaint with the same issuing authority, but when a different issuing authority was wanted, before refiling the complaint, the attorney would have to file a motion with the court of common pleas requesting the assignment of a different issuing authority with whom the complaint was to be refiled. We were concerned, however, by the potential for the statute of limitations to run if the common pleas judge delayed in the disposition of the motion. In addition, at the time of the filing of a motion for reassignment of an issuing authority, there was the administrative problem of there being no case listing in the docketing system since the complaint was not refiled prior to the filing of the motion. In view of these concerns, the Committee reconsidered its approach to the new procedures.
Ultimately, the Committee agreed that the structure of the rule should provide a procedure which incorporated a simple, logical approach to reinstituting criminal charges, while accounting for the limitations on the authority of the attorney for the Commonwealth to reinstitute charges. Specifically, the Committee concluded, as explained in the Rule 143 Comment, that the attorneys for the Commonwealth should be permitted to reinstitute criminal charges in all cases, as long as the statute of limitations has not expired, and as long as the action of the attorney for the Commonwealth does not harass or prejudice the defendant. Paragraph (A) states that when criminal charges are dismissed at, or prior to, a preliminary hearing, the attorney for the Commonwealth may reinstitute the charges by refiling a complaint with the issuing authority who dismissed the charges. This paragraph recognizes the charging function of the attorneys for the Commonwealth by stating the basic ''substantive'' premise, consistent with the case law, that the attorney for the Commonwealth, in his or her discretion, may reinstitute criminal charges by refiling a complaint with the issuing authority who dismissed the charges. This requirement applies to all cases in which the attorney for the Commonwealth decides to reinstitute criminal charges, regardless of whether the attorney determines that the preliminary hearing should be conducted by another issuing authority.
Paragraph (B) sets forth the procedures for the temporary assignment of a different issuing authority to conduct a preliminary hearing. It requires that the attorney for the Commonwealth file a Rule 23 motion with the clerk of courts requesting the temporary assignment of a different issuing authority to conduct the preliminary hearing, rather than requesting permission to refile the criminal charges. This requirement also provides a mechanism for an ''on the record'' review of the original issuing authority's decision to dismiss the criminal charges.
Paragraph (B) also requires that the attorney for the Commonwealth include in the Rule 23 motion the reasons for requesting that a different issuing authority conduct the hearing, such as, the issuing authority's decision was contrary to the laws of the Commonwealth, or because a prima facie case was established at the preliminary hearing. The defendant must be served a copy of the motion, see Rule 9023, because if the procedure were permitted to continue ex parte, then the defendant could lose the opportunity to challenge the rearrest. The motion procedure affords the defendant an opportunity to raise harassment, prejudice, or statute of limitations at the time the common pleas court is determining whether to assign a different issuing authority to conduct the preliminary hearing.
The Committee determined that it was important to emphasize that the authority to reinstitute criminal charges rest with the attorney for the Commonwealth, and therefore, the explanatory Comment indicates that a police officer may not refile the complaint, unless the attorney for the Commonwealth has provided written authorization. The Comment refers to Rule 23 for the procedure for requesting assignment of a different issuing authority. A cross-reference to Chapter 9000, governing motions, has been included to emphasize that the defendant must be served a copy of the motion. Finally, the Comment includes a reference to Rule 107 to distinguish the procedures for prior approval of complaints.
3. Rule 23 (Continuous Availability and Temporary Assignment of Issuing Authorities)
Rule 23 provides the mechanism for the president judge to assign a different issuing authority to handle a case in the specific situations set forth in the rule. According to the District Attorneys who responded to the survey, Rule 23 frequently has been used as the vehicle for the assignment of a different issuing authority to conduct a preliminary hearing in cases in which criminal charges have been withdrawn or dismissed at, or prior to, the preliminary hearing. In view of this, the Committee agreed that the Rule 23 motion procedure was the most logical place to specifically address the reassignment of an issuing authority in the new Rule 143 context. Initially, the Committee considered merely adding a Comment provision which would cross-reference new Rule 143. However, after reviewing the history of Rule 23, we were concerned that the rule could be narrowly construed to exclude the situation in which criminal charges are refiled, and agreed that Rule 23 should be amended to specifically encompass reassignment of issuing authorities in Rule 143(B) cases. See Rule 23(B)(1)(c) and (4).
In addition, the Comment to Rule 23 has been revised to explain that: 1) the notice and opportunity requirements of paragraph (B)(3) are not intended to require a formal hearing except in the narrow context of a motion for temporary assignment of an issuing authority in a recusal-type situation consistent with case law (see, e.g., Commonwealth v. Allem, 532 A.2d 845 (Pa.Super. 1987)); and
2) paragraph (B)(4) includes those cases involving the reinstitution of criminal charges, as provided in new Rule 143.
4. Rule 107 (Approval of Police Complaints and Arrest Warrants by Attorney for the Commonwealth--Local Option)
Rule 107 provides that the district attorney of any county may require that criminal complaints and/or arrest warrant affidavits have the approval of an attorney for the Commonwealth prior to filing. Because Rule 107 only requires approval by the district attorney prior to filing a criminal complaint in those cases in which the district attorney has filed a local option, the Committee agreed that a cross-reference to new Rule 143 should be added to the Rule 107 Comment to make it clear that, unlike Rule 107, approval by the attorney for the Commonwealth is required in all cases in which criminal charges are reinstituted by refiling a complaint, whether or not there is a local option.
5. Rules 141, 142, and 143: Placement of New Procedures
The Committee discussed at length the most logical, and least confusing, placement of the new procedures for the reinstitution of criminal charges. Because the reinstitution will occur within the time frame of the preliminary hearing, the Committee decided that the new procedures belonged near the rules involving the disposition of cases at the preliminary hearing. We considered, but rejected as too confusing, both adding the procedures to either Rule 141 or Rule 143 and creating a new Rule 143.
Ultimately, the Committee concluded that present Rules 141 and 142 could be consolidated into one rule because their subject matter is closely related, and present Rule 143 could be renumbered Rule 142, thereby making room for a new Rule 143 to govern the reinstitution of proceedings. Thus, Rules 141 and 142 have been combined into new Rule 141 (Preliminary Hearing; Continuances), and Rule 143 has been renumbered Rule 142 (Disposition of Case at Preliminary Hearing).
[Pa.B. Doc. No. 98-474. Filed for public inspection March 27, 1998, 9:00 a.m.] _______
1 See, e.g., ''Interim Report of the Master on the Transition to State Funding of the Unified Judicial System.'' The Honorable Frank J. Montemuro, Jr., Master.
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