THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
[234 PA. CODE CHS. 1 AND 5]
Proposed Amendments to Pa.Rs.Crim.P. 106 and 542
[37 Pa.B. 2409]
[Saturday, May 26, 2007]The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa.Rs.Crim.P. 106 (Continuances in Summary and Court Cases) and 542 (Preliminary Hearing; Continuances) to clarify that the notice of a continuance must include the date, time, and place of the new hearing, and that Rule 106 applies to all criminal proceedings, not just trials. 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 Report 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 amendments precedes the Report.
We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel,
Anne T. Panfil, Chief Staff Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
5035 Ritter Road, Suite 100
Mechanicsburg, PA 17055
fax: (717) 795-2106
e-mail: criminalrules@pacourts.usno later than Friday, June 22, 2007.
By the Criminal Procedural Rules Committee
NICHOLAS J. NASTASI,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART A. Business of the Courts Rule 106. Continuances in Summary and Court Cases.
* * * * * (B) When the matter is before an issuing authority, the issuing authority shall record on the transcript the identity of the moving party and the reasons for granting or denying the continuance. When the matter is in the court of common pleas, the judge shall on the record identify the moving party and state of record the reasons for granting or denying the continuance. When a continuance is granted, the notice of the new date, time, and location of the proceeding shall be served on the parties as provided in these rules.
(C) A motion for continuance on behalf of the defendant shall be made not later than 48 hours before the time set for the [trial] proceeding. A later motion shall be entertained only when the opportunity therefor did not previously exist, or the defendant was not aware of the grounds for the motion, or the interests of justice require it.
Comment For the procedures for filing and service of court orders and notices in general, see Rule 114. For the procedures for service of the continuance of a preliminary hearing, see Rule 542(E)(2).
Official Note: Rule 301 adopted June 30, 1964, effective January 1, 1965; amended June 8, 1973, effective July 1, 1973; amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; renumbered Rule 106 and amended March 1, 2000, effective April 1, 2001; amended , 2007, effective , 2007.
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. [1477] 1478 (March 18, 2000).
Report explaining the proposed changes to paragraphs (B) and (C) published with the Court's Order at 37 Pa.B. 2410 (May 26, 2007).
CHAPTER 5. PRETRIAL PROCEDURES IN
COURT CASES
PART D. Proceedings in Court Cases Before Issuing Authorities Rule 542. Preliminary Hearing; Continuances.
* * * * * (E) CONTINUANCES
* * * * * (2) The issuing authority shall give notice of the new date [and], time, and place for the preliminary hearing to the defendant, the defendant's attorney of record, if any, and the attorney for the Commonwealth.
* * * * * Official Note: Former Rule 141, previously 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 Rule 141 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 October 8, 1999, effective January 1, 2000. Former Rule 142, previously 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 Rule 142 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 October 8, 1999, effective January 1, 2000. New Rule 141, combining former Rules 141 and 142, adopted October 8, 1999, effective January 1, 2000; renumbered Rule 542 and Comment revised March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended March 9, 2006, effective September 1, 2006; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; amended , 2007, effective , 2007.
Committee Explanatory Reports:
* * * * * Report explaining the proposed amendment to paragraph (E)(2) adding place of hearing to information required in notice published at 37 Pa.B. 2410 (May 26, 2007).
REPORT
Proposed amendments to Pa.Rs.Crim.P. 106 and 542
Continuances The Criminal Procedural Rules Committee is proposing amendments to Pa.Rs.Crim.P. 106 (Continuances in Summary and Court Cases) and 542 (Preliminary Hearing; Continuances) that would clarify that (1) Rule 106 applies to all criminal proceedings, not just trials, and (2) the notice of the continuance must include the date, time, and location of the rescheduled proceeding.
The Committee, as part of its ongoing review of case law, considered the Superior Court Judge Popovich's suggestion in Commonwealth v. Panto, 913 A.2d 292 (Pa. Super. 2006), that Rule 106 should include a requirement that the notice of the continuance set forth the date, time, and place of the continued proceeding. Judge Popovich remarks in footnote 5 of Commonwealth v. Panto at 297:
The Criminal Procedural Rules Committee may want to examine the disparity between the notice required for a preliminary hearing (listing the place, date and time a defendant is to appear before the issuing authority, see Pa.R.Crim.P. 510(A), 512), the notice granting a continuance of a preliminary hearing (listing the new date and time, with notice provided to the defendant, see Pa.R.Crim.P. 542(D)(2)(a), (b)), and the notice of the grant of a continuance in the case at bar, which ''Application for Continuance'' form merely made provision for listing the new date without any mention of the concomitant time and/or place for the trial de novo. Provision for inclusion of these temporal and physical elements could be in the form of amendments to Pa.R.Crim.P. 106 (''Continuances in Summary and Court Cases''). This would provide the party's attorney or, if unrepresented, the party with sufficient notice of the date, time and place of the continuance with a cross-reference to Pa.R.Crim.P. 114 regarding the methodology by which notice is to be served upon the parties.The Committee agreed a uniform requirement for all continuance notices concerning the information about the rescheduled proceeding makes sense. Accordingly, we are proposing that Rule 106 be amended by the addition of a sentence at the end of paragraph (B) that requires, when a continuance is granted, the notice of the continuance include the new date, time, and location of the proceeding. In addition, the Committee is proposing a conforming amendment to Rule 542(E)(2) that adds ''place'' to the information contained in the notice of continuance of the preliminary hearing.
The Committee also agreed that the manner of service of continuance notices should be addressed in Rule 106 to avoid the type of issues that arose in the Panto case. To accomplish this, we are proposing Rule 106(B) include the requirement that the notice of the continuance is to be served on the parties as provided in the rules. A cross-reference to Rule 114 (Orders and Court Notices: Filing; Service; and Docket Entries) would be added in the Rule 106 Comment to emphasize that the provisions of Rule 114 govern the method of service of the continuance notices. Because Rule 542(E)(2)(b) and (c) provide the method of service of the notice of the continuance of the preliminary hearing that are different from the provisions in Rule 114, we also are proposing the Rule 106 Comment include a cross-reference to the service provisions in Rule 542(E).
Finally, the Committee considered the scope of the application of Rule 106. We agreed that Rule 106 applies to continuances in all criminal proceedings, but noted this is not clear in Rule 106 because of the use of the word ''trial'' in paragraph (C). Accordingly, the Committee is proposing the word ''trial'' be changed to ''proceeding'' in paragraph (C).
[Pa.B. Doc. No. 07-928. Filed for public inspection May 25, 2007, 9:00 a.m.]
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