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PA Bulletin, Doc. No. 99-1428

THE COURTS

PART I.  GENERAL

[234 PA. CODE CH. 50]

Order Approving the Revision of the Comment to Rule 60; No. 252, Criminal Procedural Rules Doc. No. 2

[29 Pa.B. 4542]

   The Criminal Procedural Rules Committee has prepared a Final Report explaining the August 13, 1999 revision of the Comment to Rule 60 (Filing of Citation) that adds a cross-reference to Section 902 of the Game and Wildlife Code, 34 Pa.C.S. § 902. This cross-reference makes it clear that, under the statute, it is not feasible for Deputy Wildlife Conservation Officers to issue citations, and that in cases instituted by a Deputy, the citation must be filed pursuant to Rule 60. The Final Report follows the Court's Order.

Order

Per Curiam:

   Now, this 13th day of August, 1999, upon the recommendation of the Criminal Procedural Rules Committee; this Recommendation having been published before adoption at 29 Pa.B. 1385 (March 13, 1999) and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 723-724), with a Final Report to be published with this Order:

   It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the revision of the Comment to Pa.R.Crim.P. 60 in the following form is approved.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective immediately.

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

CHAPTER 50.  PROCEDURE IN SUMMARY CASES

PART IIB.  PROCEDURES WHEN CITATION FILED

Rule 60.  Filing of Citation.

*      *      *      *      *

   Official Note: Previous rule, originally adopted as Rule 116 June 30, 1964, effective January 1, 1965; suspended effective May 1, 1970; readopted January 31, 1970, effective May 1, 1970; renumbered as Rule 60 and amended to apply only to summary cases September 18, 1973, effective January 1, 1974; amended April 26, 1979, effective July 1, 1979; amended January 28, 1983, effective July 1, 1983; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule 76. Present Rule 60, adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; Comment revised February 1, 1989, effective July 1, 1989[.]; Comment revised August 13, 1999, effective immediately.

Comment:

   [This rule is derived from previous Rule 51A, subparagraphs (1)(b) and (3)(b).]

   A law enforcement officer should file a citation with the issuing authority when, due to the circumstances of the case, the law enforcement officer is unable to issue the citation directly to the defendant at the time of the offense. Examples of situations when the law enforcement officer would be unable to issue a citation include, but are not limited to, when the officer receives information that the defendant has committed a summary violation from a witness but the defendant is not then present [,]; when a witness is not present at the scene and the officer wants to question the witness before completing the investigation [,]; or when the officer is summoned to another case that requires prompt action. See Section 902 of the Game and Wildlife Code, 34 Pa.C.S. § 902, which provides, inter alia, that ''Deputy Wildlife Conservation Officers shall not be authorized to issue citations . . . and shall provide the information to the Wildlife Conservation Officer.'' Under this statute, it would not be feasible for the Deputy Wildlife Conservation Officer to issue the citation, and, therefore, pursuant to this rule, the citation would be filed.

   When a defendant acknowledges guilt pursuant to Section 926 of the Game and Wildlife Code, [(]34 Pa.C.S. § 926, [(Supp. 1988))] or Section 925 of the Fish and Boat Code, [(]30 Pa.C.S. § 925, [(Supp. 1988))] but does not pay the fine and costs or the check issued for the fine and costs cannot be cashed, the officer of the commission should file a citation with the issuing authority to institute a summary criminal proceeding.

   When determining whether the filing of a citation was the correct procedure under the rules, the courts have considered whether there was a reasonable basis for filing, whether there were compelling reasons to prevent issuing the citation, and whether the defendant was prejudiced by the filing. See, e.g., Commonwealth v. Odle, 16 D. & C. 3d 750 (Cambria County 1980); Commonwealth v. Lombardo, 4 D. & C. 3d 106 (Clearfield County 1977). [Also see] See also Rule 90, which would permit discharge or dismissal when the institution of proceedings by incorrect means is prejudicial to the rights of the defendant.

   When evidence is discovered after the issuance of a citation [which] that gives rise to additional charges against the defendant resulting from the same incident, the police officer must file with the issuing authority an additional citation alleging such additional summary offenses, or a complaint when the additional charges include a misdemeanor or felony. For proceedings on such charges when a complaint is filed, see Chapter 100 of these Rules.

   With regard to the ''proper'' issuing authority as used in these rules, see Rule 21.

Committee Explanatory Reports:

   Final Report explaining the August 13, 1999 revision of the Comment concerning 34 Pa.C.S. § 902 published with the Court's Order at 29 Pa.B. 4543 (August 28, 1999).

FINAL REPORT1

Proposed Revision of the Comment to Pa.R.Crim.P. 60

Filing Citations in Summary Cases

   On August 13, 1999, effective immediately, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the revision of the Comment to Rule 60 (Filing of Citation) that adds a cross-reference to Section 902 of the Game and Wildlife Code, 34 Pa.C.S. § 902. This cross-reference makes it clear that, under the statute, it is not feasible for Deputy Wildlife Conservation Officers to issue citations, and that in cases instituted by a Deputy, the citation must be filed pursuant to Rule 60.

Background

   On December 21, 1998, the Governor signed Act 166 of 1998, effective July 1, 1999. The Act amends, inter alia, Section 902 of the Game and Wildlife Code, 34 Pa.C.S. § 902, by adding a provision that:

Deputy Wildlife Conservation Officers shall not be authorized to issue citations . . . and shall provide the information to the Wildlife Conservation Officer.

Communications with the Committee questioned how this legislation would impact on the Criminal Rules, and whether the legislation was in conflict with the rules. In addition, concern was expressed about how Deputy Wildlife Conservation Officers should proceed under the rules.

Discussion

   The Committee reviewed Act 166 and the Criminal Rules. From this review, the members, relying on the principles of statutory construction that the Legislature does not intend an effect that is unreasonable or unconstitutional, 1 Pa.C.S. § 1922, reasoned that the intent of the legislation must be to provide a layer of review by a full-time Wildlife Conservation Officer. Thus, the Wildlife Conservation Officer would be acting in the capacity of a reviewing officer to ensure that the information on the citation prepared by a Deputy Wildlife Conservation Officer constitutes an offense that should be pursued by the filing of the citation. This reviewing function is comparable to the reviewing function performed by a district attorney in a court case pursuant to Pa.R.Crim.P. 107 (Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth--Local Option). We reasoned further that, to give effect to both this statutorily created review process and the Criminal Rules, under Section 902 and Pa.R.Crim.P. 60 (Filing of Citation), when a Deputy Wildlife Conservation Officer is instituting a summary criminal proceeding, because of the review process, it is not feasible for the deputy to issue the citation to the defendant. Therefore, pursuant to Rule 60, the Deputy Wildlife Conservation Officer should file the citation.

   Although agreeing that Rule 60 adequately provides for the situation in which there is a statutorily mandated review process, given the apparent confusion the Act 166 amendments to Section 902 are causing, the Committee concluded that it would be helpful to include in the Rule 60 Comment a citation to 34 Pa.C.S. § 902, with a clarifying explanation.

[Pa.B. Doc. No. 99-1428. Filed for public inspection August 27, 1999, 9:00 a.m.]

_______

1  The Committee's Final 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 Committee's explanatory Final Reports.


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