THE COURTS

Title 234--RULES OF CRIMINAL PROCEDURE

[ 234 PA. CODE CHS. 1, 4, 5, AND 9 ]

Order Approving the Revisions of the Comments to Rules 114, 430, 451, 509, 511, 536, 576, 907 and 908; Criminal Procedural Rules; No. 368; Doc. No. 2

[38 Pa.B. 5425]
[Saturday, October 4, 2008]

Order

Per Curiam:

   And Now, this 18th day of September, 2008, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before approval at 37 Pa.B. 6396 (December 8, 2007), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 934 No. 3 and 935 No. 1), 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 the revisions of the Comments to Rules of Criminal Procedure 114, 430, 451, 509, 511, 536, 576, 907 and 908 are approved in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective February 1, 2009.

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

PART I. GENERAL

CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES

PART A. Business of the Courts

Rule 114. Orders and Court Notices: Filing; Service; and Docket Entries.

*      *      *      *      *

Comment

*      *      *      *      *

   Nothing in this rule is intended to preclude the use of automated or other electronic means for the transmission of the orders or court notices between the judge, court administrator, and clerk of courts, or for time stamping or making docket entries.

   Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service's return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

   Under the post-sentence motion procedures, the clerk of courts must comply with this rule after entering an order denying a post-sentence motion by operation of law. See Rule 720(B)(3)(c).

*      *      *      *      *

   Official Note: Formerly Rule 9024, adopted October 21, 1983, effective January 1, 1984; amended March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; renumbered Rule 9025 and Comment revised June 2, 1994, effective September 1, 1994; renumbered Rule 114 and Comment revised March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004; amended August 24, 2004, effective August 1, 2005; amended July 20, 2006, effective September 1, 2006; Comment revised September 18, 2008, effective February 1, 2009.

Committee Explanatory Reports:

*      *      *      *      *

   Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service's return receipt electronic option published with the Court's Order at 38 Pa.B. 5428 (October 4, 2008).

CHAPTER 4. PROCEDURES IN SUMMARY CASES

PART D. ARREST PROCEDURES IN SUMMARY CASES

PART D(1). Arrests With a Warrant

Rule 430. Issuance of Warrant.

*      *      *      *      *

Comment

*      *      *      *      *

   A bench warrant may not be issued under paragraph (B)(1) when a defendant fails to respond to a citation or summons that was served by first class mail. See Rule 451.

   Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service's return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

   Rule 454 provides that the issuing authority is to direct any defendant who is sentenced to a term of imprisonment to appear for the execution of sentence on a date certain following the expiration of the 30-day stay required by Rule 461. Paragraph (B)(1)(b), formerly paragraph (A)(1)(d), was added in 2003 to make it clear that an issuing authority should issue a warrant for the arrest of any defendant who fails to appear for the execution of sentence.

*      *      *      *      *

   Official Note: Rule 75 adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; amended April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999; renumbered Rule 430 and amended March 1, 2000, effective April 1, 2001; amended February 28, 2003, effective July 1, 2003; Comment revised August 7, 2003, effective July 1, 2004; Comment revised April 1, 2005, effective October 1, 2005; amended June 30, 2005, effective August 1, 2006; amended January 26, 2007, effective February 1, 2008; Comment revised September 18, 2008, effective February 1, 2009.

Committee Explanatory Reports:

*      *      *      *      *

   Final Report explaining the change to the Rule 454 reference in paragraph (B)(1)(b) with the Court's Order at 37 Pa.B. 760 (February 17, 2007).

   Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service's return receipt electronic option published with the Court's Order at 38 Pa.B. 5428 (October 4, 2008).

PART E. General Procedures in Summary CASES

Rule 451. Service.

*      *      *      *      *

   (B)  [(b)] When service of a summons has been made by first class mail and the defendant fails to respond or appear within the time specified by these rules, the issuing authority shall cause service to be made upon the defendant personally or by certified mail, return receipt requested. Thereafter, the case shall proceed as provided in these rules.

Comment

*      *      *      *      *

   Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service's return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

   Official Note: Rule 80 adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended February 1, 1989, effective July 1, 1989; Comment revised June 2, 1994, effective September 1, 1994; renumbered Rule 451 and amended March 1, 2000, effective April 1, 2001; Comment revised March 3, 2004, effective July 1, 2004; Comment revised September 18, 2008, effective February 1, 2009.

Committee Explanatory Reports:

*      *      *      *      *

   Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service's return receipt electronic option published with the Court's Order at 38 Pa.B. 5428 (October 4, 2008).

CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES

PART B(1). Complaint Procedures

Rule 509. Use of Summons or Warrant of Arrest in Court Cases.

*      *      *      *      *

Comment

*      *      *      *      *

   Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service's return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

   Pursuant to Rule 511, a return receipt signed by the defendant or a notation on the transcript that the first class mailing was not returned within 20 days is proof that the defendant received notice of the summons for purposes of paragraph (2)(d). See also Rule 543(D)(1).

*      *      *      *      *

   Official Note: Original Rule 108 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 108 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 102 and amended September 18, 1973, effective January 1, 1974; amended December 14, 1979, effective April 1, 1980; Comment revised April 24, 1981, effective July 1, 1981; amended October 22, 1981, effective January 1, 1982; renumbered Rule 109 and amended August 9, 1994, effective January 1, 1995; renumbered Rule 509 and amended March 1, 2000, effective April 1, 2001; Comment revised August 24, 2004, effective August 1, 2005; amended June 30, 2005, effective August 1, 2006; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; Comment revised September 18, 2008, effective February 1, 2009.

Committee Explanatory Reports:

*      *      *      *      *

   Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service's return receipt electronic option published with the Court's Order at 38 Pa.B. 5488 (October 4, 2008).

PART B(2). Summons Procedures

Rule 511. Service of Summons; Proof of Service.

*      *      *      *      *

Comment

   This rule was amended in 2004 to require that the summons be served by both first class mail and certified mail, return receipt requested.

   Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service's return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

   Paragraph (B) sets forth what constitutes proof of service of the summons by mail in a court case for purposes of these rules.

   Official Note: Original Rule 111, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 111 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 112 September 18, 1973, effective January 1, 1974; renumbered Rule 511 March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; Comment revised September 18, 2008, effective February 1, 2009.

Committee Explanatory Reports:

*      *      *      *      *

   Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service's return receipt electronic option published with the Court's Order at 38 Pa.B. 5428 (October 4, 2008).

PART C(2). General Procedures in all Bail Cases

Rule 536. Procedures Upon Violation of Conditions: Revocation of Release and Forfeiture; Bail Pieces; Exoneration of Surety.

(A)  SANCTIONS

   (1)  [Revocation of Release] Revocation of Release

*      *      *      *      *

   (2)  [Forfeiture] Forfeiture

*      *      *      *      *

Comment

*      *      *      *      *

   Paragraph (A)(1)(b) was amended and former paragraph (A)(1)(d) was deleted in 2005 to make it clear that a warrant for the arrest of the defendant for failure to comply with a condition of bail is a bench warrant. For the procedures when a paragraph (A)(1)(b) bench warrant is executed, see Rule 150 (Bench Warrants). For the procedures for issuing a bench warrant when a defendant fails to appear for a preliminary hearing, see paragraph (D) of Rule 543 (Disposition of Case at Preliminary Hearing).

   Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service's return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

*      *      *      *      *

   Official Note: Former Rule 4016 adopted July 23, 1973, effective 60 days hence, replacing prior Rule 4012; Comment revised January 28, 1983, effective July 1, 1983; rescinded September 13, 1995, effective January 1, 1996, and replaced by Rule 4016. Present Rule 4016 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 536 and Comment revised March 1, 2000, effective April 1, 2001; amended March [2] 3, 2004, effective July 1, 2004; Comment revised August 24, 2004, effective August 1, 2005; amended December 30, 2005, effective August 1, 2006; Comment revised May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; Comment revised September 18, 2008, effective February 1, 2009.

Committee Explanatory Reports:

*      *      *      *      *

   Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service's return receipt electronic option published with the Court's Order at 38 Pa.B. 5428 (October 4, 2008).

PART F(1). Motion Procedures

Rule 576. Filing and Service by Parties.

*      *      *      *      *

Comment

*      *      *      *      *

   See Commonwealth v. Jones, 549 Pa. 58, 700 A.2d 423 ([Pa.] 1997); and Commonwealth v. Little, 716 A.2d 1287 (Pa. Super. 1998) concerning the timeliness of filings by prisoners proceeding pro se (the ''prisoner mailbox rule'').

*      *      *      *      *

   A facsimile number or an electronic address set forth on letterhead is not sufficient to authorize service by facsimile transmission or other electronic means under paragraph (B)(2)(f). The authorization for service by facsimile transmission or other electronic means under this rule is document specific and only valid for an individual document. Counsel will have to renew the authorization for each document.

   Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service's return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

*      *      *      *      *

   Official Note: Former Rule 9022 adopted October 21, 1983, effective January 1, 1984; amended March 22, 1993, effective January 1, 1994; amended July 9, 1996, effective September 1, 1996; renumbered Rule 576 and amended March 1, 2000, effective April 1, 2001. Former Rule 9023 adopted October 21, 1983, effective January 1, 1984; amended June 2, 1994, effective September 1, 1994; renumbered Rule 577 and amended March 1, 2000, effective April 1, 2001; rescinded March [2] 3, 2004, effective July 1, 2004. Rules 576 and 577 combined and amended March 3, 2004, effective July 1, 2004, Comment revised June 4, 2004, effective November 1, 2004; Comment revised September 18, 2008, effective February 1, 2009.

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 (March 18, 2000).

   Final Report explaining the March 3, 2004 changes amending and combining Rule 576 with former Rule 577 published with the Court's Order at 34 Pa.B. 1561 (March 20, 2004).

   Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service's return receipt electronic option published with the Court's Order at 38 Pa.B. 5428 (October 4, 2008).

CHAPTER 9. POST-CONVICTION COLLATERAL PROCEEDINGS

Rule 907. Disposition Without Hearing.

*      *      *      *      *

Comment

*      *      *      *      *

   Second or subsequent petitions will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. See Commonwealth v. Szuchon, 534 Pa. 483, 486, 633 A.2d 1098, 1099 ([Pa.] 1993) (citing Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 ([Pa.] 1988)). This standard is met if the petitioner can demonstrate either: (1) that the proceedings resulting in the petitioner's conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate; or (2) that the petitioner is innocent of the crimes charged. See Commonwealth v. Szuchon, 534 Pa. 483, 487, 633 A.2d 1098, 1100 ([Pa.] 1993).

*      *      *      *      *

   Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service's return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

   Official Note: Previous Rule 1507 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; amended January 28, 1983, effective July 1, 1983; rescinded February 1, 1989, effective July 1, 1989, and not replaced. Present Rule 1507 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; renumbered Rule 907 and amended March 1, 2000, effective April 1, 2001; Comment revised September 18, 2008, effective February 1, 2009.

Committee Explanatory Reports:

   Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).

   Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. 1477 (March 18, 2000).

   Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service's return receipt electronic option published with the Court's Order at 38 Pa.B. 5428 (October 4, 2008).

Rule 908. Hearing.

*      *      *      *      *

Comment

*      *      *      *      *

   Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service's return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

   Official Note: Rule 1508 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; renumbered Rule 908 and amended March 1, 2000, effective April 1, 2001; Comment revised September 18, 2008, effective February 1, 2009.

Committee Explanatory Reports:

   Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).

   Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. 1477 (March 18, 2000).

   Final Report explaining the Setpember 18, 2008 revision of the Comment concerning the United States Postal Service's return receipt electronic option published with the Court's Order at 38 Pa.B. 5428 (October 4, 2008).

FINAL REPORT¹

Revision of the Comments to Pa.R.Crim.P. 114, 430, 451, 509, 511, 536, 576, 907 and 908

ELECTRONIC RETURN RECEIPTS

   On September 18, 2008, effective February 1, 2009, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the revision of the Comments to Rules of Criminal Procedure 114, 430, 451, 509, 511, 536, 576, 907, and 908. The revisions make it clear that judicial districts may utilize the United States Postal Service's return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

   The Committee has received a number of inquiries from clerks of courts and district court administrators asking whether, when the Criminal Rules require that service of a document be by certified mail return, receipt requested, the United States Postal Service's electronic return receipt service satisfies these rules' requirements. The correspondents explained that, when a user elects to use the United States Postal Service's electronic return receipt service, the post office will notify the sender by email that the document has been delivered. The notice provides the date and time of delivery, the city, state, and zip code where the delivery was made, and the name of the individual who signed the return card. If the sender subsequently would require a copy of the actual return card, the ''green card,'' the post office will provide the card for an additional cost. The correspondents emphasized that the benefit of this electronic option is that it significantly reduces the costs of sending certified mail and provides an earlier return receipt.

   During its discussions about the electronic return receipt service, the Committee acknowledged that the purpose of the certified mail requirements in the rules is to ensure service, see, e.g., Rules 114(B)(3)(a)(v), 536 (A)(2)(b), 576(B)(2)(e), 907(4), and 908(E), and to provide proof of service, see, e.g., Rules 430(B)(1)(a), 451(B), 509 Comment, and 511(A) and (B). The Committee agreed that the Postal Service's electronic return receipt service, as explained above, satisfies these rules' service and notice requirements. In addition, the Committee noted the definitions of ''copy''² and ''signature''³ in Rule 103 accommodate the electronic return of the certified mail return receipt.

   Although the rules do not prohibit the use of this new technology, because the rules are silent, the Committee continues to receive inquiries about this issue. Accordingly, the members recommended to the Court that the rules should specifically recognize the Postal Service's return receipt electronic option. To accomplish this, the Comments to the rules requiring certified mail return receipt requested have been revised by the addition of a new provision making it clear that nothing in the rules is intended to preclude a judicial district from utilizing the United States Postal Service's return receipt electronic option, or any similar service that electronically provides a return receipt,⁴ when using certified mail, return receipt requested.

[Pa.B. Doc. No. 08-1794. Filed for public inspection October 3, 2008, 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.

²  ''COPY is an exact duplicate of an original document, including any required signatures, produced through mechanical or electronic means, and includes, but is not limited to: carbon copies; copies reproduced by using a photocopy machine, by transmission using facsimile equipment, or by scanning into and printing out of a computer.''

³  ''SIGNATURE, when used in reference to documents generated by the minor judiciary or court of common pleas, includes a handwritten signature, a copy of a handwritten signature, a computer generated signature, or a signature created, transmitted, received, or stored by electronic means, by the signer or by someone with the signer's authorization, unless otherwise provided in these rules.''

⁴  For example, United Parcel Service provides a comparable service for electronic return receipts.

---

No part of the information on this site may be reproduced for profit or sold for profit.

This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.

---