[41 Pa.B. 5538]
[Saturday, October 15, 2011]
[Continued from previous Web Page] Rule 556.11. Proceedings When Case Presented to Grand Jury.
(A) When a case is presented to an indicting grand jury, the case shall remain open in the office of the issuing authority in which the complaint was filed until conclusion of the proceedings before the grand jury, and the issuing authority shall cancel the preliminary hearing and schedule a hearing to review the status of the case.
(1) The status hearing shall be held 30 days from the date when the issuing authority received notice that the case will be presented to the grand jury. If the case still is before the grand jury at the time of the status hearing, the issuing authority shall schedule additional status hearings every 30 days until such time as the grand jury indicts the defendant or declines to indict the defendant.
(2) The defendant, the defendant's attorney, if any, and the attorney for the Commonwealth shall be present at the status hearings.
(3) In the discretion of the issuing authority, the status hearing may be conducted by using two-way simultaneous audio-visual communication. When counsel for the defendant is present, the defendant must be permitted to communicate fully and confidentially with defense counsel immediately prior to and during the status hearing.
(B) A grand jury has the authority to:
(1) inquire into violations of criminal law through subpoenaing witnesses and documents; and
(2) based upon evidence it has received, including hearsay evidence as permitted by law, or upon a presentment issued by an investigating grand jury, indict defendant for an offense under the criminal laws of the Commonwealth of Pennsylvania; or
(3) decline to indict.
(B) After a grand jury has considered the evidence presented, the grand jury shall vote whether to indict the defendant. The affirmative vote of at least 12 grand jurors is required to indict.
(C) In cases in which the grand jury votes to indict, an indictment shall be prepared setting forth the offenses on which the grand jury has voted to indict. The indictment shall be signed by the grand jury foreperson, or deputy foreperson if the foreperson is unavailable, and returned to the supervising judge.
(D) Upon receipt of the indictment, the supervising judge shall:
(1) provide a copy of the indictment to the Commonwealth authorizing the attorney to prepare an information pursuant to Rule 560; and
(2) forward the indictment to the issuing authority, or issue an arrest warrant, if the subject of the indictment has not been arrested on the charges contained in the indictment.
(E) At the request of the attorney for the Commonwealth, the supervising judge shall order the indictment to be sealed.
(F) In cases in which the grand jury does not vote to indict, the foreperson promptly and in writing shall so report to the supervising judge who immediately shall dismiss the complaint and shall notify the issuing authority of the dismissal.
Comment As provided in paragraph (A), the case will remain open in the magisterial district office in which the complaint was filed and the issuing authority must conduct a hearing into the status of the case every 30 days until the grand jury takes action on the case. At the status hearing, issues related to the case, such as bail, may be addressed.
When the grand jury votes to indict the defendant, the vote to indict is the functional equivalent of holding the defendant for court following a preliminary hearing. In these cases, the matter will proceed in the same manner as when the defendant is held for court following a preliminary hearing. See, e.g., Rules 547 and 560.
The indictment required by paragraph (C) no longer serves the traditional function of an indictment, but rather serves as an instrument authorizing the attorney for the Commonwealth to file an information. See Rule 103.
Concerning hearsay evidence before the indicting grand jury, see Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966).
If the grand jury declines to indict, the attorney for the Commonwealth may reinstitute the charges as provided in Rule 544.
Official Note: New Rule 556.11 adopted , effective .
Committee Explanatory Reports:
Report explaining the proposed new rule published at 41 Pa.B. 5549 (October 15, 2011).
Rule 556.12. Waiver of Grand Jury Action.
A defendant, with the consent of the attorney for the Commonwealth and the approval of the supervising judge, may waive action by the grand jury and consent to be bound over to court. The waiver shall be in writing and signed by the defendant and defense attorney, if any, and shall certify that the defendant voluntarily waives the grand jury action and consents to be bound over to court.
Official Note: New Rule 556.12 adopted , effective .
Committee Explanatory Reports:
Report explaining the proposed new rule published at 41 Pa.B. 5549 (October 15, 2011).
PART [E] F. Procedures Following a
Case Held for CourtRule 560. Information: Filing, Contents, Function.
(A) After the defendant has been held for court following a preliminary hearing or an indictment, the attorney for the Commonwealth shall proceed by preparing an information and filing it with the court of common pleas.
* * * * *
Comment * * * * * See Rule 543(D) for the procedures when a defendant fails to appear for the preliminary hearing. When the preliminary hearing is held in the defendant's absence and the case is held for court, the attorney for the Commonwealth should proceed as provided in this rule.
See Chapter 5 Part E for the procedures governing indicting grand juries. As explained in the Comment to Rule 556.11, when the grand jury indicts the defendant, this is the functional equivalent to holding the defendant for court following a preliminary hearing.
Official Note: Rule 225 adopted February 15, 1974, effective immediately; Comment revised January 28, 1983, effective July 1, 1983; amended August 14, 1995, effective January 1, 1996; renumbered Rule 560 and amended March 1, 2000, effective April 1, 2001; Comment revised April 23, 2004, effective immediately; Comment revised August 24, 2004, effective August 1, 2005; Comment revised March 9, 2006, effective September 1, 2006; amended , 2011, effective , 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the March [3] 9, 2006 Comment revision concerning joinder of summary offenses with misdemeanor, felony, or murder charges published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).
Report explaining the proposed amendments to paragraph (A) concerning indicting grand juries published for comment at 41 Pa.B. 5549 (October 15, 2011).
PART [F] G. Procedures Following
Filing of InformationRule 573. Pretrial Discovery and Inspection.
* * * * * (B) DISCLOSURE BY THE COMMONWEALTH
* * * * * (2) DISCRETIONARY WITH THE COURT:
(a) In all court cases, except as otherwise provided in [Rule] Rules 230 (Disclosure of Testimony Before Investigating Grand Jury) and 556.10 (Secrecy; Disclosure), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant's attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
* * * * *
Comment This rule is intended to apply only to court cases. However, the constitutional guarantees mandated in Brady v. Maryland, 373 U.S. 83 (1963), and the refinements of the Brady standards embodied in subsequent judicial decisions, apply to all cases, including court cases and summary cases, and nothing to the contrary is intended. For definitions of ''court case'' and ''summary case,'' see Rule 103.
See Rule 556.10(B)(2)(b) for discovery in cases indicted by a grand jury. In these cases, discovery is not to be ordered until 30 days before the commencement of trial.
* * * * * Official Note: Present Rule 305 replaces former Rules 310 and 312 in their entirety. Former Rules 310 and 312 adopted June 30, 1964, effective January 1, 1965. Former Rule 312 suspended June 29, 1973, effective immediately. Present Rule 305 adopted 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; Comment revised April 24, 1981, effective June 1, 1981; amended October 22, 1981, effective January 1, 1982; amended September 3, 1993, effective January 1, 1994; amended May 13, 1996, effective July 1, 1996; Comment revised July 28, 1997, effective immediately; Comment revised August 28, 1998, effective January 1, 1999; renumbered Rule 573 and amended March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004; Comment revised March 26, 2004, effective July 1, 2004; amended January 27, 2006, effective August 1, 2006; Comment revised , 2011, effective , 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 3, 2004 amendments to paragraphs (A), (C)(1)(a), and [(C)(1)(16)] (C)(1)(b), and the revision to the Comment adding the reference to Rules 575 and 576 published with the Court's Order at 34 Pa.B. 1561 (March 20, 2004).
* * * * * Report explaining the proposed revision of the Comment concerning discovery when case is indicted by grand jury published for comment at 41 Pa.B. 5549 (October 15, 2011).
PART [F(1)] G(1). Motion Procedures Rule 578. Omnibus Pretrial Motion for Relief.
* * * * *
Comment Types of relief appropriate for the omnibus pretrial motions include the following requests:
* * * * * (5) to quash or dismiss an information;
(6) for change of venue or venire;
(7) to disqualify a judge;
(8) for appointment of investigator; [and]
(9) for pretrial conference[.] ; and
(10) challenging the array of an indicting grand jury.
The omnibus pretrial motion rule is not intended to limit other types of motions, oral or written, made pretrial or during trial, including those traditionally called motions in limine, which may affect the admissibility of evidence or the resolution of other matters. The earliest feasible submissions and rulings on such motions are encouraged.
See Rule 556.4 for challenges to the array of an indicting grand jury and for motions to dismiss an information filed after a grand jury indicts a defendant.
Official Note: Formerly Rule 304, adopted June 30, 1964, effective January 1, 1965; amended and renumbered Rule 306 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; amended October 21, 1983, effective January 1, 1984; Comment revised October 25, 1990, effective January 1, 1991; Comment revised August 12, 1993, effective September 1, 1993; renumbered Rule 578 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised , 2011, effective , 2011.
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 revision of the Comment referencing indicting grand jury rules published for comment at 41 Pa.B. 5549 (October 15, 2011).
Rule 582. Joinder—Trial of Separate Indictments or Informations.
* * * * *
Comment * * * * * Paragraph (A)(1)(a) is based upon Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 ([Pa.] 1981). Paragraph (A)(1)(b) is based upon statutory and case law that, ordinarily, if all offenses arising from the same criminal episode or transaction are not tried together, subsequent prosecution on any such offense not already tried may be barred. See the Crimes Code, 18 Pa.C.S. §§ 109—110; Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808 (1973), addendum opinion on remand, 455 Pa. 622, 314 A.2d 854 ([Pa.] 1974); Commonwealth v. Tarver, 467 Pa. 401, 357 A.2d 539 ([Pa.] 1976). The court has also held that a defendant's failure to move for consolidation does not ordinarily constitute a waiver of an objection to a subsequent, separate trial of any such offense. See, e.g., Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 ([Pa.] 1981).
See Rule 571 concerning arraignment procedures.
Although most references to indictments and indicting grand juries were deleted from these rules in 1993 since the indicting grand jury was abolished in all counties (see PA. CONST. art. I, § 10 and 42 Pa.C.S. § 8931(b)), the reference was retained in paragraphs (A) and (B) of this rule because there may be some cases still pending that were instituted under the former indicting grand jury rules prior to the abolition of the indicting grand jury in 1993. These references to ''indictment'' do not apply in the context of an indicting grand jury convened pursuant to the new indicting grand jury procedures adopted in 2011 in which an information would be filed after a grand jury indicts a defendant. See Rules 103 and 556.11.
Official Note: Rule 1127 adopted December 11, 1981, effective July 1, 1982; amended August 12, 1993, effective September 1, 1993; amended August 14, 1995, effective January 1, 1996; renumbered Rule 582 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; Comment revised , 2011, effective , 2011.
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 rescission of the last paragraph of the Comment concerning the abolition of the indicting grand jury published for comment at 41 Pa.B. 5549 (October 15, 2011).
PART [G] H. Plea Procedures Rule
590. Pleas and Plea Agreement. 591. Withdrawal of Plea of Guilty or Nolo Contendere.
CHAPTER 6. TRIAL PROCEDURES IN
COURT CASES
PART C(2). Conduct of Jury Trial (Editor's Note: See 39 Pa.B. 6331 (October 31, 2009) for the text of Rule 646.)
Rule 646. Material Permitted in Possession of the Jury.
* * * * * (C) During deliberations, the jury shall not be permitted to have:
* * * * * (3) a copy of the information or indictment; and
* * * * *
Comment * * * * * Although most references to indictments and indicting grand juries were deleted from these rules in 1993 because the indicting grand jury was abolished in all counties, see PA. CONST. art. I, § 10 and 42 Pa.C.S. § 8931(b), the reference was retained in paragraph (C)(3) of this rule because there may be some cases still pending that were instituted under the former indicting grand jury rules prior to the abolition of the indicting grand jury in 1993. The reference to ''indictment'' does not apply in the context of an indicting grand jury convened pursuant to the new indicting grand jury procedures adopted in 2011 in which an information would be filed after a grand jury indicts a defendant. See Rules 103 and 556.11.
Official Note: Rule 1114 adopted January 24, 1968, effective August 1, 1968; amended June 28, 1974, effective September 1, 1974; Comment revised August 12, 1993, effective September 1, 1993; amended January 16, 1996, effective July 1, 1996; amended November 18, 1999, effective January 1, 2000; renumbered Rule 646 March 1, 2000, effective April 1, 2001; amended June 30, 2005, effective August 1, 2005; amended August 7, 2008, effective immediately; amended October 16, 2009, effective February 1, 2010.
Committee Explanatory Reports:
* * * * * Report explaining the proposed amendment to paragraph (C)(3) and the revision of the Comment concerning the former abolition of the indicting grand jury published for comment at 41 Pa.B. 5549 (October 15, 2011).
Rule 648. Verdicts.
* * * * *
Comment Paragraph (A) of the rule replaces the practice of automatically appointing the first juror chosen as foreman of the jury. Paragraphs (C), (D), and (E) serve only to codify the procedure where conviction or acquittal of one offense operates as a bar to a later trial on a necessarily included offense. Similarly, the rule applies to situations of merger and autrefois convict or acquit. No attempt is made to change the substantive law [which] that would operate to determine when merger or any of the other situations arise. See, e.g., Commonwealth v. Comber, 374 Pa. 570, 97 A.2d 343 (1953).
* * * * * Although most references to indictments and indicting grand juries were deleted from these rules in 1993 because the indicting grand jury was abolished in all counties, see PA. CONST. art. I, § 10 and 42 Pa.C.S. § 8931(b), the reference was retained in paragraphs (D) and (E) of this rule because there may be some cases still pending that were instituted under the former indicting grand jury rules prior to the abolition of the indicting grand jury in 1993. These references to ''indictment'' do not apply in the context of an indicting grand jury convened pursuant to the new indicting grand jury procedures adopted in 2011 in which an information would be filed after a grand jury indicts a defendant. See Rules 103 and 556.11.
Official Note: Rule 1120 adopted January 24, 1968, effective August 1, 1968; amended February 13, 1974, effective immediately; paragraph (E) amended to correct printing error June 28, 1976, effective immediately; paragraph (F) amended April 26, 1979, effective July 1, 1979; amended August 12, 1993, effective September 1, 1993; renumbered Rule 648 and amended March 1, 2000, effective April 1, 2001; amended March 9, 2006, effective September 1, 2006; Comment revised , 2011, effective , 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the March [3] 9, 2006 amendments concerning joinder of summary offenses with misdemeanor, felony, or murder charges published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).
Report explaining the proposed revision of the Comment concerning the former abolition of the indicting grand jury published for comment at 41 Pa.B. 5549 (October 15, 2011).
CHAPTER 10. RULES OF CRIMINAL PROCEDURE FOR THE PHILADELPHIA MUNICIPAL COURT AND THE PHILADELPHIA TRAFFIC COURT
PART A. Philadelphia Municipal Court Procedures Rule 1003. Procedure in Non-Summary Municipal Court Cases.
* * * * * (D) PRELIMINARY ARRAIGNMENT
* * * * * (3) At the preliminary arraignment, the issuing authority:
* * * * * (d) also shall [also] inform the defendant:
* * * * * (iii) in a case charging a felony, unless the preliminary hearing is waived by a defendant who is represented by counsel, or the attorney for the Commonwealth is presenting the case to an indicting grand jury pursuant to Rule 556.1, of the date, time, and place of the preliminary hearing, which shall not be less than 14 nor more than 21 days after the preliminary arraignment unless extended for cause or the issuing authority fixes an earlier date upon the request of the defendant or defense counsel with the consent of the complainant and the attorney for the Commonwealth; and that failure to appear without good cause for the preliminary hearing will be deemed a waiver by the defendant of the right to be present at any further proceedings before the issuing authority, and that the case shall proceed in the defendant's absence, and a warrant of arrest shall be issued; and
* * * * *
Comment * * * * * Nothing in this rule is intended to address public access to arrest warrant affidavits. See Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987).
The 2011 amendment to paragraph (D)(3)(d)(iii) conforms this rule with the new procedures set forth in Chapter 5, Part E, permitting the attorney for the Commonwealth to proceed to an indicting grand jury without a preliminary hearing in cases in which witness intimidation has occurred, is occurring, or is likely to occur. See Rule 556.2.
* * * * * Official Note: Original Rule 6003 adopted June 28, 1974, effective July 1, 1974; amended January 26, 1977, effective April 1, 1977; amended December 14, 1979, effective April 1, 1980; amended July 1, 1980, effective August 1, 1980; amended October 22, 1981, effective January 1, 1982; Comment revised December 11, 1981, effective July 1, 1982; amended January 28, 1983, effective July 1, 1983; amended February 1, 1989, effective July 1, 1989; rescinded August 9, 1994, effective January 1, 1995. New Rule 6003 adopted August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; amended March 22, 1996, effective July 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; amended August 28, 1998, effective immediately; renumbered Rule 1003 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended August 24, 2004, effective August 1, 2005; amended August 15, 2005, effective February 1, 2006; amended April 5, 2010, effective April 7, 2010; amended January 27, 2011, effective in 30 days; amended , 2011, effective , 2011.
Committee Explanatory Reports:
* * * * * Court's Order adopting the April 5, 2010 amendments to paragraph (D)(3)(d) published at 40 Pa.B. 2012 (April 17, 2010).
Report explaining the proposed amendments to paragraph (D)(3)(d)(iii) concerning indicting grand juries published for comment at 41 Pa.B. 5549 (October 15, 2011).
CHAPTER 11. ABOLITIONS AND SUSPENSIONS Rule 1101. Suspension of Acts of Assembly.
This rule provides for the suspension of the following Acts of Assembly:
* * * * * (7) The Act of November 21, 1990, P. L. 588, No. 138, § 1, 42 Pa.C.S. § 8934, which authorizes the sealing of search warrant affidavits, and which is implemented by Rule 211, is suspended only insofar as the Act is inconsistent with Rules 205, 206, and 211.
(8) The Act of October 5, 1980, P. L. 693, No. 142, § 216(a)(2), 42 Pa.C.S. § 4548, that provides that ''except for the power to indict,'' the investigating grand jury has all the same powers as any other grand jury, is suspended only insofar as the Act is inconsistent with Rule 556.1(A).
* * * * * Official Note: Former Rule 39 adopted October 1, 1997, effective October 1, 1998; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 1101. Former Rule 159 adopted September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; amended February 1, 1989, effective July 1, 1989; amended April 10, 1989, effective July 1, 1989; amended January 31, 1991, effective July 1, 1991; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 1101. Former Rule 340 combined previous Rules 321 and 322, which were the prior suspension rules, and was adopted June 29, 1977, effective September 1, 1977; amended April 24, 1981, effective June 1, 1981; amended January 28, 1983, effective July 1, 1983; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 1101. Former Rule 1415 adopted July 23, 1973, effective 90 days hence; paragraph (g) added March 21, 1975, effective March 31, 1975; amended August 14, 1995, effective January 1, 1996; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 1101. Former Rule 2020 adopted September 3, 1993, effective January 1, 1994; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 1101. New Rule 1101 adopted March 1, 2000, effective April 1, 2001; amended , 2011, effective , 2011.
Committee Explanatory Reports:
* * * * * NEW RULE 1101:
Final Report explaining the reorganization and renumbering of the rules and the provisions of Rule 1101 published at 30 Pa.B. [1477] 1478 (March 18, 2000).
Report explaining the proposed amendments adding paragraph (8)suspending 42 Pa.C.S. § 4548 published for comment at 41 Pa.B. 5549 (October 15, 2011).
REPORT
Proposed New Pa.Rs.Crim.P. 556 through 556.12, and Proposed Correlative Changes to Pa.Rs.Crim.P. 103, 540, 542, 544, 547, 560, 573, 578, 582, 646,
648, 1003, and 1101
Indicting Grand Juries I. Background
In January 2010, the Philadelphia Inquirer published a series of articles reporting on what was seen as systemic problems within the criminal justice system of the First Judicial District. In response to these articles, the Court appointed a Commission to study the issues raised by the Philadelphia Inquirer.
One of the problems identified in the Inquirer articles concerned intimidation by threats of violence to witnesses and/or witnesses' family members. ''Witness intimidation pervades the Philadelphia criminal courts, increasingly extracting a heavy toll in no-show witnesses, recanted testimony—and collapsed cases . . . Prosecutors, detectives, and even some defense lawyers say witness fear has become an unspoken factor in virtually every court case involving violent crime in Philadelphia. Reluctant or terrified witnesses routinely fail to appear in court, and when they do, they often recant their earlier testimony or statements to police.''1
The recommendations of the Court's Commission included, as a way to address the problem of witness intimidation, a proposal that the Court adopt rules providing for the use of the indicting grand jury similar to the indicting grand jury procedures in a number of other jurisdictions, including the federal courts. The Commission's Report explained that the indicting grand jury would be utilized in lieu of proceeding by preliminary hearing on an as-needed basis in cases in which witness intimidation has occurred or is a distinct possibility. The Court referred the matter to the Committee to consider the Commission's proposal and to develop a set of rules that would reinstitute the indicting grand jury in Pennsylvania as suggested by the Commission.
The Committee reviewed the history of the indicting grand jury and its evolution in Pennsylvania, examining the constitutional, statutory, and rule provisions, and the case law governing indicting grand juries in Pennsylvania and in other jurisdictions. An initial question raised by the Court was whether the process for reinstituting the indicting grand jury could be accomplished by rule or would have to be by statute. After thoroughly reviewing the history of the indicting grand jury and its evolution in Pennsylvania, and the materials prepared by the Commission, the Committee unanimously agreed that the Court, pursuant to its constitutional and statutory authority to prescribe general rules governing practice, procedure, and conduct of all courts, has the power to reinstitute the indicting grand jury by rule. The Committee therefore proceeded with development of procedural rules to accomplish this as requested by the Court, and is proposing that the Court adopt new Rules of Criminal Procedure 556 through 556.12 that establish the procedures for the judicial districts to resume using the indicting grand jury and that establish the procedures necessary to convene the indicting grand jury, to conduct the grand jury, and to proceed following the grand jury's action. The Committee also is proposing correlative and conforming amendments Rules of Criminal Procedure 103, 540, 544, 547, 560, 646, 1003, and 1101 and revisions of the Comments to Rules of Criminal Procedure 542, 573, 578, 582, and 648. The proposed new procedures, as much as possible, incorporate the procedures recommended by the Commission, the procedures from the current investigating grand jury rules, Rules 220—231, and the former indicting grand jury rules, former Rules 200—224.
II. Discussion of Rule Changes
Placement of New Rules
When initially considering the placement of the new indicting grand jury rules, it was thought that the rules just would be re-inserted into the same chapter of the rules where the indicting grand jury rules were prior to being rescinded—then-Chapter 200 (Grand Jury, Indictment, and Information). However, since the time when the indicting grand jury rules were rescinded, the Criminal Rules have been reorganized and renumbered, and there no longer is a chapter comparable to former Chapter 200.2 In the current rules, Chapter 200 deals only with investigations and includes the search warrant and investigating grand jury rules. The rules governing preliminary hearings are in Chapter 5, Part D (Proceedings in Court Cases Before Issuing Authorities) and the rules governing informations, formerly in Chapter 2, are now in Chapter 5 Part E (Procedures Following a Case Held for Court). Sequentially, the indicting grand jury procedures come after the rules governing preliminary hearings and before the procedures for when a case is held for court. In view of this, the Committee is proposing that a separate Part be added to Chapter 5 that would be dedicated to the indicting grand jury procedures. This separate Part would be new Part E (Indicting Grand Jury) and begin with Rule 556.3 Because of the dearth of available numbers in this chapter, although not a preferred method for numbering the Criminal Rules but a less confusing option than renumbering all the rules in Chapter 5, all the new rules in Part E will fall under Rule 556, and the next rules in the sequence would be Rule 556.1 etc.
Resumption of Using Indicting Grand Jury
In 1973, Article I § 10 of the Pennsylvania Constitution (Initiation of criminal proceedings; twice in jeopardy; eminent domain) was amended to provide ''each of the several courts of common pleas may, with the approval of the Supreme Court, provide for the initiation of criminal proceedings therein by information filed in the manner provided by law.'' The implementing statute, Act 238 of 1974,4 and the Criminal Rules establishing the procedures for the use of informations in judicial districts that had received approval from the Court to proceed by information instead of indicting grand jury were adopted in 1974.
In 1991, the Supreme Court approved the request of the last court of common pleas to abolish the indicting grand jury,5 and directed the Committee to develop rules providing for the rescission of the indicting grand jury rules. On August 12, 1993, effective September 1, 1993, the Court adopted the Committee's proposal for the rescission of the indicting grand jury and indictment rules as no longer necessary, and for correlative changes to other rules necessitated by the rescission.6
The Committee believes that, because the Supreme Court was constitutionally required to approve the judicial districts' request to proceed by information instead of indictment, which effectively rescinded the indicting grand jury, before a judicial district may resume using the indicting grand jury, the judicial district would have to receive the approval of the Supreme Court.
The Committee initially considered requiring the individual judicial districts to petition the Court for permission to reinstitute the indicting grand jury, similar to the petition procedure used when the judicial districts requested permission to proceed by information. Procedurally, however, such a procedure seemed to be overly complex, time consuming, and potentially confusing. Alternatively, the Committee agreed that the best way to accomplish the reinstitution of the indicting grand jury would be for the Supreme Court, correlatively with adopting procedural rules governing indicting grand jury rules, to issue an administrative order permitting any judicial district to resume using the indicting grand jury subject to the provisions of the indicting grand jury rules. Accordingly, the Committee plans on proposing this to the Court when it submits the proposal for the new indicting grand jury rules. If the Court adopts the rules and issues such an administrative order, the administrative order would be referenced in the Comment to proposed new Rule 556.
Scope of Indicting Grand Jury Authority: Proposed New Rule 556
The Committee discussed how broad the jurisdiction of the indicting grand juries should be and whether the scope should be expanded beyond the cases in which witness intimidation is at issue. There were a number of different opinions expressed by the Committee about whether and in what manner the use of the indicting grand jury should be limited. After considering various approaches, the Committee ultimately agreed that, as a first step for bringing back the indicting grand jury the new procedures should be narrowly drafted. Adding to this determination was the fact that indicting grand juries had not been used in Pennsylvania for more than eighteen years and the new proposals would not provide for a preliminary hearing procedure following indictment as was the case in the previous practice.
Accordingly, proposed new Rule 556 (Indicting Grand Jury) permits the judicial districts to proceed by indicting grand jury as provided by the rules but only in cases in which witness intimidation has occurred, is occurring, or is likely to occur.
Proposed Rule 556.1 (Summoning Panels of Grand Jurors)
Rule 556.1 sets forth the procedures for summoning an indicting grand jury. When a judicial district elects to proceed with the indicting grand jury, the president judge, or the president judge's designee, must order that one or more panels be summoned. The Committee noted that the judicial districts that choose to use the indicting grand jury may want to have a standing grand jury for that purpose, and agreed that should be permitted in the rule.
In addition, the Committee discussed whether judicial districts with sitting investigating grand juries could order the investigating grand jury to sit as an indicting grand jury reasoning that permitting this dual function would promote judicial economy. From research into this question, we learned that several other jurisdictions provide for this by rule or statute, and agreed that the rules should permit this in Pennsylvania. To accommodate a sitting investigating grand jury sitting as an indicting grand jury, to the extent possible, the proposed new procedures for the indicting grand jury, including the procedures for summoning, are the same as the procedures for the investigating grand jury.7
By permitting the investigating grand jury to sit as an indicting grand jury, the rules create an inconsistency with the provision of Section 4548(c) of the Investigating Grand Jury Act, 42 Pa.C.S. § 4548(c) (Other Powers), that provides, inter alia, ''[e]xcept for the power to indict, the investigating grand jury shall have every power available to any other grand jury in the Commonwealth,'' and, unless addressed, may cause confusion for the bench and bar. Because of the benefits of permitting the investigating grand jury to sit as an indicting grand jury, the proposal includes the recommendation that 42 Pa.C.S. § 4548(c) be suspended but only insofar as it is inconsistent with Rule 556.1(A). To accomplish this, the Rule 556.1 Comment includes a paragraph explaining the suspension and referring to Rule 1101. Rule 1101 would be amended to provide for the suspension.
When an investigating grand jury sits as an indicting grand jury, there should not be an overlap of functions. However, there may be situations in which there has been a crime but the Commonwealth does not know who did it and submits the case to the investigating grand jury. The investigating grand jury gathers information during its investigation of the crime and learns the identity of the perpetrator. The attorney for the Commonwealth then determines the crime is one in which there is intimidation and submits the case to the indicting grand jury, which, in this case, is the same body as the investigating grand jury. In this situation, it makes sense to permit the incorporation of the evidence presented to the grand jury during the investigation for the grand jury's consideration when it is sitting as the indicting grand jury. The Comment explains that the rule does not prevent the investigating grand jury when sitting as an indicting grand jury from considering the evidence already presented to it.
Proposed Rule 556.2 (Proceeding by Indicting Grand Jury without Preliminary Hearing)
Rule 556.2 sets forth the new procedures for either proceeding to an indicting grand jury or proceeding to a preliminary hearing. To proceed to an indicting grand jury, the attorney for the Commonwealth must file a motion setting forth facts that show that witness intimidation has occurred, is occurring, or is likely to occur. This fact-based motion procedure provides the judge with an opportunity to decline to grant the motion but only if the attorney for the Commonwealth does not make out sufficient facts about the witness intimidation. However, if the judge finds the motion is sufficient, he or she must grant the motion.
The motion is made ex parte to the president judge, or the president judge's designee. In most cases, the Committee anticipates that the judge designated to receive these motions also will be the judge designated to supervise the grand jury. If the judge grants the motion, the judge shall seal the motion and order granting the motion, and the attorney for the Commonwealth shall file both with the clerk of courts. In addition, concurrently with granting the motion, the judge must notify the proper issuing authority that the attorney for the Commonwealth's motion has been granted thereby providing notice that the preliminary hearing must be stayed.
Procedurally, all court cases will continue to be instituted by the filing of a complaint or an arrest without a warrant, the preliminary arraignments will be conducted by the proper issuing authority, and the preliminary hearing initially will be scheduled by the issuing authority. When the attorney for the Commonwealth is proceeding to an indicting grand jury instead of to a preliminary hearing, because the case has not been held for court, and because, until the grand jury proceeding actually is held, the possibility that a preliminary hearing will have to be held remains, the Committee is proposing that the case remain open in the proper issuing authority's office. Proposed new Rule 556.11, explained in more detail below, sets forth the procedures for maintaining the case before the magisterial district judge when the case is submitted to the grand jury.
The proposal also permits the defendant to waive the grand jury proceedings in the same manner that he or she may waive the preliminary hearing, but only with the consent of the Commonwealth. The consent of the Commonwealth requirement was added because there may be situations in which the Commonwealth will want to memorialize a witness's testimony on the record particularly when there is witness intimidation. Paragraph (C) of this rule and new Rule 556.12 provide for the waiver.
Proposed Rule 556.3 (Composition and Organization of the Indicting Grand Jury)
Rule 556.3 incorporates most of the procedures for the composition and organization of the indicting grand jury as are set forth in Rule 222 for the investigating grand jury because the investigating grand jury also may be sitting as the indicting grand jury. The Committee is proposing some organizational changes to paragraph (B) to make the rule clearer with regard to the manner of selection.
Proposed Rule 556.4 (Objections to Grand Jury and Grand Jurors; Motion to Dismiss)
Rule 556.4 is taken from former Criminal Rule 203. During discussions of these procedures, questions arose about the procedures for challenging the array of the grand jury and whether such challenges have a constitutional basis. Research revealed that the right to challenge the array is a common law right and that some of the challenges, such as those based on race or gender, are constitutional challenges. Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966), cited in the former indicting grand jury rules, and other early Pennsylvania cases that recognize the right to challenge the array appear to still be good law. In view of this research, proposed new Rule 556.4 incorporates procedures for challenging the array. The rule also sets forth the procedures for filing a motion to dismiss the indictment.
The former rules provided that the motion to dismiss an indictment should be made as part of the omnibus pretrial motion. This provision was deleted from the rules when the indicting grand jury rules were rescinded. With the reinstitution of the indicting grand jury, the new procedures incorporate this previous procedure. In addition, the challenge to the array also would be made as part of the omnibus pretrial motion. Rule 556.4(C) spells out these requirements and the Comment to Rule 578 would be revised to add challenges to the array and motions to dismiss to the list of matters that should be included in the omnibus pretrial motion.
One concern raised throughout the Committee's discussions was the importance of protecting a defendant's right to habeas corpus proceedings when there has been an indicting grand jury proceeding. To ensure that the procedures in Rule 556.4 are not read as limiting this right, the Rule 556.4 Comment includes a cautionary provision explaining that ''nothing in the rule limits the availability of habeas corpus proceedings as provided by law.''
A last point with reference to challenges to the array and motions to dismiss relates to the defendant's access to information concerning the indicting grand jury prior to the grand jury proceedings. Providing for these challenges and motions in the rules does not give the defendant a right to participate in the process prior to an indictment, see, e.g., Commonwealth v. Dessus, supra. In recognition of the special nature of these indicting grand juries because of witness intimidation and the fact that indicting grand juries have not been in existence in Pennsylvania for over 18 years, the Comment provides clarification by explaining ''nothing in this rule is intended to require notice to defendant of the time and place of the impaneling of a grand jury, or to give the defendant the right to be present for the selection of the grand jury.''
Proposed Rule 556.5 (Duration of Indicting Grand Jury)
Rule 556.5 is consistent with 42 Pa.C.S. § 4546 (Term of Investigating Grand Jury) but leaves the duration to the discretion of the judge with the outside limit of 18 months. Although the Committee believes the indicting grand jury proceedings under these new rules ordinarily will be relatively brief, and therefore it might not be necessary to provide for an extension mechanism, because the goal is to have the new procedures for the indicting grand jury be the same as the procedures for the investigating grand jury, Rule 556.5 includes, as much as possible, the same detailed procedures for the extension of and early termination of the grand jury that are applicable in investigating grand jury proceedings.
Proposed Rules 556.6 (Administering Oath to Grand Jury and Foreperson) and 556.7 (Administration of Oath to Witnesses; Court Personnel)
The provisions in Rules 556.6 and 556.7 are taken from former Criminal Rules 206 and 207 and Criminal Rules 223, 223, and 225. The supervising judge would be required to administer the oath to the foreperson, the deputy foreperson, and the other grand jurors. This provision is taken from the rescinded rules and includes the text of the oaths that is required to be administered. The oaths to the witnesses and court personnel would be administered by the foreperson, or deputy foreperson, and the text of the oaths are taken from the investigating grand jury rules.
Proposed Rule 556.8 (Recording of Testimony Before Indicting Grand Jury)
Rule 556.8 provides for the recording of the grand jury proceedings other than deliberations and voting and is taken from Criminal Rules 228 and 229. The rescinded indicting grand jury rules prohibited the recording of the proceedings. The Committee agreed to follow the procedure in the investigating grand jury rules, as well as a number of states, to ensure there is a record should there be a need to review the grand jury proceedings. The supervising judge would maintain control of the recordings and the transcript, as well as, of any physical evidence introduced during the proceedings. In addition, the rule provides for the destruction of the transcript if no indictment is returned, except for good cause. ''Good cause'' would include, for example, the prosecution of a witness for perjury.
Proposed Rule 556.9 (Who May be Present During Sessions of Indicting Grand Jury)
Rule 556.9 is taken from Criminal Rule 231. In considering the provisions of Rule 231, whether a witness may disclose his or her testimony was discussed in view of the provisions of 42 Pa.C.S. § 4549(d) that provides for a witness to disclose his or her grand jury testimony. Because any case before the indicting grand jury under these new rules involves witness intimidation and permitting a witness to disclose his or her testimony could be dangerous, there are different considerations for these witnesses than for witnesses before the investigating grand jury. In view of this, Rule 556.9 provides that the indicting grand jury witness may not disclose his or her testimony unless the witness has received the supervising judge's permission to do so. This variation between the investigating grand jury procedures and the indicting grand jury procedures is explained in the Comment.
The Committee also considered the procedures in other jurisdictions for permitting witnesses to testify using two-way simultaneous audio-visual communication. Although the Committee does not believe the rules should mandate this procedure, it agreed there would be no reason not to permit such testimony with the approval of the supervising judge. A paragraph explaining this is included in the Comment.
Proposed Rule 556.10 (Secrecy; Disclosure)
Rule 556.10 is taken from Criminal Rule 230 and provides the procedures for maintaining the secrecy of the grand jury proceedings, paragraph (A), and for the disclosure, paragraph (B).
Paragraph (A) requires that all evidence is subject to grand jury secrecy and any violation may be subject to contempt.
Paragraph (B)(1) provides that the supervising judge must provide the attorney for the Commonwealth with a copy of the transcript of the grand jury proceeding for the attorney's official duties.
Paragraph (B)(2) provides that the transcript of a witness's testimony be furnished to the defendant but only after the direct testimony of the witness at trial. This limitation on disclosure was a concern for the Committee. We explored various options for the time for pretrial discovery taking into consideration the concerns about witness intimidation as well as the defendant's need to have adequate time to review the discovery to prepare for the trial. The proposal is that rule would provide that the pretrial discovery would be 30 days before the commencement of trial with a provision for the attorney for the Commonwealth to request a delay in discovery when the need arises. The Comment explains that the court should grant a continuance to the defendant when he or she needs more time to review the materials. The Comment also includes an explanation of what constitutes the ''commencement of trial'' using the provisions from Rule 600.
Another issue discussed concerned whether a defendant may testify before the indicting grand jury, noting that Rule 230(B)(1) suggests that the defendant may testify before the investigating grand jury, and that other jurisdictions provide for the defendant's testimony. The Committee agreed the rules should not address this issue, but reasoned that leaving the rule silent did not prevent a defendant from asking to testify. However, the Committee decided to include language comparable to Rule 230(B)(1) in Rule 556.10 to ensure that any defendant who is permitted to testify before the indicting grand jury would be entitled to a copy of the transcript of his or her testimony. They were concerned that if the language was omitted from Rule 556.10 then it might be construed as prohibiting the defendant's right to the transcript and that would create due process issues.
Proposed Rule 556.11 (Grand Jury Authority and Action)
Although Rule 556.11 is taken from former Criminal Rule 210, the new rule sets forth a completely new concept for the proceedings related to the indicting grand jury's actions and for how the case is handled while remaining with the issuing authority. Under the former indicting grand jury procedures, after a defendant was held for court following a preliminary hearing, the attorney for the Commonwealth would prepare a bill of indictment and submit that to the indicting grand jury. If the indicting grand jury, after considering the bill of indictment, voted to indict, the attorney for the Commonwealth would prepare the indictment and file it in the court of common pleas and the case would proceed to an arraignment. Under the proposed new procedures:
(1) The case would remain open in the magisterial district court until the grand jury acts to either indict the defendant (holds the case for court), or declines to indict. The issuing authority would forward the case to the clerk of courts pursuant to Rule 547 after the grand jury indicts in the same way he or she forwards a case after a case is held for court following a preliminary hearing.
(2) When the issuing authority receives notice from the president judge that the case is being presented to an indicting grand jury, the issuing authority is required to cancel the preliminary hearing. To provide a means to monitor the case while the proceedings are before the indicting grand jury, the rule would require the issuing authority to conduct status hearings every 30 days until the grand jury acts.
(3) To simplify the post-indictment procedures and to keep them more in line with the post-preliminary hearing procedures, the function of the grand jury's indictment would be changed from the charging document that was comparable to an information to a notice-type document that sets forth the charges held for court by the grand jury and authorizes the attorney for the Commonwealth to file an information. Thereafter, the attorney for the Commonwealth would proceed in the same manner as he or she would proceed after a case is held for court following a preliminary hearing.
(4) If the grand jury declines to indict, the supervising judge must dismiss the complaint and the attorney for the Commonwealth may re-file pursuant to Rule 544.
Proposed Rule 556.12. (Waiver of Grand Jury Action)
Rule 556.12 sets forth the procedures for the waiver of the grand jury proceedings. The procedures are comparable to the procedures for waiving the preliminary hearing but, as explained above, require the consent of the attorney for the Commonwealth. In addition, the supervising judge has to approve the waiver.
Conforming Changes to Rules 103, 540, 542, 544, 547, 560, 573, 578, 582, 646, 648, and 1003
The Committee also is proposing conforming changes to Rules 103, 540, 542, 544, 547, 560, 573, 578, 582, 646, 648, and 1003. Except for the changes described below, the conforming changes merely add references to the new indicting grand jury procedures.
Rule 103 would be amended to change the definition of ''indictment'' from ''a bill of indictment which has been approved by a grand jury and properly returned to court, or which has been endorsed with a waiver as provided in former Rule 215'' to ''the instrument holding the defendant for court after a grand jury votes to indict and authorizing the attorney for the Commonwealth to prepare an information'' to conform with the proposal that when an indicting grand jury votes to indict the defendant, the attorney for the Commonwealth proceeds by filing an information as set forth in the rules. The definition of ''information'' also would be amended to make it clear that an information is presented to the court by the attorney for the Commonwealth when the defendant is held for court or waives the preliminary hearing or a grand jury proceeding. The Rule 103 Comment further clarifies the new function of the ''indictment'' under the indicting grand jury rules.
Rule 540(F) includes, as an exception to when an issuing authority would set the date for the preliminary hearing, the situation when the attorney for the Commonwealth is presenting the case to an indicting grand jury. Paragraph (F)(3) would be amended to extend the time for conducting the preliminary hearing from 3 to 10 days after the preliminary arraignment to 14 to 21 days after the preliminary arraignment to accommodate the timing for proceeding to an indicting grand jury depending on whether or not the defendant is in custody.
Rule 544(A) would be amended to add when the indicting grand jury declines to indict a defendant as a situation when the attorney for the Commonwealth may re-file the charges.
Rule 547(A) would be amended by adding ''either following a preliminary hearing or an indictment by a grand jury'' after ''When a defendant is held for court'' to include the action by the grand jury into the rule requirement for when an issuing authority must prepare a transcript of the proceedings to send to the court of common pleas. Similarly, paragraph (C) would be amended by the addition of a new paragraph (7) that requires a copy of the indictment to be forwarded with the transcript.
Rule 560(A) would be amended by adding the issuance of an indictment to when an information is to be prepared by the attorney for the Commonwealth.
The Rule 578 Comment would be amended to add ''or dismiss'' in paragraph (5) to make it clear that a motion to dismiss an information is to be included in theomnibus pretrial motion and to add a new paragraph (10) providing that a challenge to the array of an indicting grand jury ordinarily would be made as part of the omnibus pretrial motion.
The amendment to Rule 646(C)(3) adding ''indictment'' is a corrective amendment referring to indictments under the former indicting grand jury rules that were rescinded in 1993 as explained further in the Comment.
Rule 1003(D)(3)(d)(iii) would be amended by adding an ''unless'' clause comparable to the ''unless'' clause in Rule 540(F), and explains that the Municipal Court judge must inform the defendant of the preliminary hearing unless the preliminary hearing is waived or the case is being presented to an indicting grand jury.
As explained more fully in the discussion of proposed new Rule 556.1, Rule 1101 would be amended to include the suspension of 42 Pa.C.S. § 4548(c) but only insofar as the statute is inconsistent with the provisions of Rule 556.1 that permit an investigating grand jury to also sit as an indicting grand jury.
[Pa.B. Doc. No. 11-1762. Filed for public inspection October 14, 2011, 9:00 a.m.] _______
1 Nancy Phillips, et al., ''Witnesses Fear Reprisals, and Cases Crumble—Intimidation On The Streets Is Changing the Way Trials Are Run.'' PHILA. INQUIRER, Dec. 14, 2009.
2 See 30 Pa.B. 1478 (March 18, 2000).
3 This will necessitate re-naming current Parts E and F.
4 The Act 238, which initially was in Title 17, sections 271—276, was repealed in 1978 as part of the Judiciary Act Repealer Act and replaced and amended by 42 Pa.C.S. § 8931.
5 Bedford County Court of Common Pleas.
6 See 22 Pa.B. 3826 (July 25, 1992).
7 This reasoning also applies to the inclusion of the procedures from the investigating grand jury rules in proposed new Rules 556.3, 556.5, 556.6, 556.7, 556.8, 556.9, and 556.10.
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