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PA Bulletin, Doc. No. 09-873

THE COURTS

Title 234--RULES OF CRIMINAL PROCEDURE

[ 234 PA. CODE CH. 1 ]

Order Amending Rule of Criminal Procedure 119; No. 378; Doc. No. 2

[39 Pa.B. 2434]
[Saturday, May 16, 2009]

Order

Per Curiam:

   Now, this 4th day of May, 2009, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. No. 103(a)(3) in the interests of justice and efficient administration, 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 Comment to Rule of Criminal Procedure 119 is amended as follows.

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

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 119.  Use of Two-Way Simultaneous Audio-Visual Communication in Criminal Proceedings.

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Comment

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   Nothing in this rule is intended to limit any right of a defendant to waive his or her presence at a criminal proceeding in the same manner as the defendant may waive other rights. See, e.g., Rule 602 Comment. Negotiated guilty pleas when the defendant has agreed to the sentence, [and] probation revocation hearings, and hearings held pursuant to Rule 908(C) and the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 et seq., are examples of hearings in which the defendant's consent to proceed using two-way simultaneous audio-visual communication would be required. Hearings on post-sentence motions, bail hearings, bench warrant hearings, extradition hearings, and Gagnon I hearings are examples of proceedings that may be conducted using two-way simultaneous audio-visual communication without the defendant's consent. It is expected the court or issuing authority would conduct a colloquy for the defendant's consent when the defendant's constitutional right to be physically present is implicated.

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   Official Note:  New Rule 118 adopted August 7, 2003, effective September 1, 2003; renumbered Rule 119 and Comment revised June 30, 2005, effective August 1, 2006; amended January 27, 2006, effective August 1, 2006; Comment revised May 4, 2009, effective August 1, 2009.

Committee Explanatory Reports:

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   Final Report explaining the May 4, 2009 revision to the Comment adding PCRA hearings as a proceeding to which the defendant may consent to be held using ACT published with the Court's Order at 39 Pa.B. 2434 (May 16, 2009).

FINAL REPORT1

Revision to the Comment to Pa.R.Crim.P. 119

CONSENT TO USE OF TWO-WAY SIMULTANEOUS AUDIO-VISUAL TECHNOLOGY AT POST CONVICTION RELIEF ACT HEARINGS

   On May 4, 2009, effective August 1, 2009, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the revision of the Comment to Rule 119 (Use of Two-Way Simultaneous Audio-Visual) to clarify that a hearing held pursuant to Rule 908(C) for purposes of the Post-Conviction Relief Act (PCRA), may utilize two-way simultaneous audio-visual communication, but only if the defendant consents.

   This revision originated with a question to the Committee from a member of the Attorney General's Office regarding the interplay between Rule 119, that permits the use of two-way simultaneous audio-visual communication in certain criminal proceedings, and Rule 908, that provides the procedures for Post-Conviction Relief Act (PCRA) hearings. The inquirer queried whether Rule 119 technology may be used to conduct PCRA hearings as a matter of course or whether the defendant has a right to appear in person at a Rule 908 PCRA hearing.

   The Committee examined the history of then-Rule 1508 (now Rule 908). Noting that the rule included from its inception the requirement that the judge permit the defendant to be present at the hearing, the Committee concluded that the defendant's interests in the hearing were such that the hearing could not be held using advanced communications technology over the defendant's objection. However, the Committee also believes that there might be circumstances under which a defendant would wish to waive personal appearance for this type of proceeding. For example, transportation to attend a PCRA hearing in a county distant from the defendant's place of incarceration might entail a lengthy absence and result in the loss of certain privileges at the place of incarceration.

   Therefore, the Court has approved a revision of the Comment to Rule 119 to clarify that a PCRA hearing may be held using two-way simultaneous audio-visual communication if the defendant consents to proceed in this manner.

[Pa.B. Doc. No. 09-873. Filed for public inspection May 15, 2009, 9:00 a.m.]

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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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