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PA Bulletin, Doc. No. 00-2207

THE COURTS

Title 234--RULES OF CRIMINAL PROCEDURE

[234 PA. CODE CH. 1100]

Order Amending Rule 11171; No. 267; Criminal Procedural Rules; Doc. No. 2

[30 Pa.B. 6546]

   The Criminal Procedural Rules Committee has prepared a Final Report explaining the amendments to Rule of Criminal Procedure 1117 (Presence of the Defendant) that were adopted on December 8, 2000, effective January 1, 2001. The changes make it clear that the defendant's absence without cause does not preclude proceeding with the trial, including the imposition of sentence, and address in the Comment the requirements for the waiver of a defendant's presence at trial. The Final Report follows the Court's Order.

Order

Per Curiam:

   Now, this 8th day of December, 2000, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 28 Pa.B. 5869 (December 5, 1998), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 720), 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 Rule of Criminal Procedure 1117 is amended in the attached form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective January 1, 2001.

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

CHAPTER 1100.  TRIAL

Rule 1117.  Presence of the Defendant.

   (a)  The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant's absence without cause shall not preclude proceeding with the trial including the return of the verdict and the imposition of sentence.

*      *      *      *      *

   Official Note:  Rule 1117 [Adopted] adopted January 24, 1968, effective August 1, 1968; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; renumbered Rule 602 and amended March 1, 2000, effective April 1, 2001; amended December 8, 2000, effective January 1, 2001.

Comment

   [Paragraph (c) was added in 1994 to make it clear that the trial judge may dismiss a summary case appeal when the judge determines that the defendant is absent without cause from the trial de novo. If the appeal is dismissed, the trial judge should enter judgment and order execution of any sentence imposed by the issuing authority.]

   Nothing in this rule is intended to preclude a defendant from affirmatively waiving the right to be present at any stage of the trial, see e.g., Commonwealth v. Vega, 719 A.2d 227 (Pa. 1998) (plurality) (requirements for a knowing and intelligent waiver of a defendant's presence at trial includes a full, on-the-record colloquy concerning consequences of forfeiture of the defendant's right to be present) or from waiving the right to be present by his or her actions, see e.g., Commonwealth v. Wilson, 712 A.2d 735 (Pa. 1998) (defendant, who fled courthouse after jury was impaneled and after subsequent plea negotiations failed, was deemed to have knowingly and voluntarily waived the right to be present).

   Former Rule 1117(c) was moved to Rule 642 (Trial de novo) in 2000 as part of the reorganization of the rules.

   Committee Explanatory Reports:

*      *      *      *      *

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

   Final Report explaining the December 8, 2000 amendments published with the Court's Order at 30 Pa.B. 6546 (December 23, 2000).

FINAL REPORT1

Amendments to Pa.R.Crim.P. 11172

Presence of Defendant; Waiver

   On December 8, 2000, effective January 1, 2001, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule of Criminal Procedure 1117 (Presence of Defendant) to make it clear that the defendant's absence without cause does not preclude proceeding with the trial, including the imposition of sentence, and to address in the Comment the requirements for the waiver of a defendant's presence at trial.

   The Committee examined Rule 1117 in response to an inquiry from the Court concerning the juxtaposition of the first sentence of Rule 1117(a) with the last sentence, and whether they were intentionally not ''parallel.'' The first sentence of Rule 1117(a) requires the defendant's presence at every stage of the trial, including the trial, the return of the verdict, and the imposition of sentence; the last sentence makes reference only to proceeding in the defendant's absence with the trial and the return of the verdict.

   Because Rule 1117(a) is virtually the same as it was when adopted by the Court in the mid-1960's, the Committee's history concerning the intent of the rule is meager, so the former Committee's reason for proposing the inclusion of the language ''and at the imposition of sentence'' in the first sentence of Rule 1117(a), but omitting similar language from the second sentence, is not apparent. Furthermore, a review of the case law was similarly lacking in guidance, since the Court has not spoken directly on sentencing a defendant in absentia. In view of this, to correct the inconsistency, ''and the imposition of sentence'' has been added at the end of the second sentence of Rule 1117(a).

   During our consideration of Rule 1117(a), the Committee reviewed the line of cases addressing waiver of the right to be present at trial. Noting that Rule 1117(a) requires that a defendant be present at all stages of the trial but is silent concerning waiver, the Committee agreed that it would be helpful to the bench and bar if the Rule 1117 Comment was revised to include examples of the ways in which a defendant may waive the right to be present at trial. Accordingly, the Rule 1117 Comment has been revised to include the parenthetical citation to Commonwealth v. Vega, 719 A.2d (Pa. 1998), which addresses waiver when the defendant is present, to make it clear that 1) the rule is not intended to prohibit a defendant from affirmatively waiving the right to be present at any stage of the trial, and 2) before permitting the waiver, the court must conduct an on-the-record colloquy that includes an explanation of the consequences of forfeiting the right to be present. Similarly, a parenthetical citation to Commonwealth v. Wilson, 712 A.2d 735 (Pa. 1998), which is representative of the line of cases addressing waiver when the defendant intentionally absents himself or herself, to make it clear that a defendant may waive the right to be present by his or her actions.

_____

   1 Rule 1117 will be renumbered Rule 602 as part of the renumbering and reorganization of the Rules of Criminal Procedure the Court adopted on March 1, 2000, effective April 1, 2001.

   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.

   2 Rule 1117 will be renumbered Rule 602 as part of the renumbering and reorganization of the Rules of Criminal Procedure that the Court adopted on March 1, 2000, effective April 1, 2001.

[Pa.B. Doc. No. 00-2207. Filed for public inspection December 22, 2000, 9:00 a.m.]


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