THE COURTS
Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CHS. 5, 6 AND 8 ]
Proposed Revisions to the Comments to Pa.Rs.Crim.P. 590, 602 and 803
[42 Pa.B. 4568]
[Saturday, July 21, 2012]The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania revise the Comments to Rules 590 and 803 to clarify the jury procedures that are available when a degree of guilt hearing is held before a jury. The proposal also recommends a revision to the Comment to Rule 602 to add a cross-reference to the case of Commonwealth v. Ford, 539 Pa. 85, 650 A.2d 433 (1994), that requires the defendant's presence at trial of capital offenses. 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 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 explanatory Reports.
The text of the proposed amendments to the rule precedes the Report. Additions are shown in bold; deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel,
Jeffrey M. Wasileski, Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
Harrisburg, PA 17106-2635
fax: (717) 231-9521
e-mail: criminalrules@pacourts.usno later than Friday, Sept 7, 2012.
By the Criminal Procedural
Rules CommitteePHILIP D. LAUER,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES
PART H. Plea Procedures (Editor's Note: See 38 Pa.B. 5429 (October 4, 2008) for the text of Rule 590.)
Rule 590. Pleas and Plea Agreements.
* * * * *
Comment * * * * * Paragraph (C) reflects a change in Pennsylvania practice, that formerly required the judge to convene a panel of three judges to determine the degree of guilt in murder cases in which the imposition of a sentence of death was not statutorily authorized. The 2008 amendment to paragraph (C) and the Comment recognizes the Commonwealth's right to have a jury determine the degree of guilt following a plea of guilty to murder generally. See Article I, § 6 of the Pennsylvania Constitution that provides that ''the Commonwealth shall have the same right to trial by jury as does the accused.'' See also Commonwealth v. White, 589 Pa. 642, 910 A.2d 648 (2006). Any proceeding, held pursuant to paragraph (C), where the degree of guilt is determined by a jury should follow the procedures for jury trials contained in Chapter 6 Part C of these rules, Rules 631—649.
Official Note: Rule 319(a) adopted June 30, 1964, effective January 1, 1965; amended November 18, 1968, effective February 3, 1969; paragraph (b) adopted and title of rule amended October 3, 1972, effective 30 days hence; specific areas of inquiry in Comment deleted in 1972 amendment, reinstated in revised form March 28, 1973, effective immediately; 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; paragraph (c) added and Comment revised May 22, 1978, effective July 1, 1978; Comment revised November 9, 1984, effective January 2, 1985; amended December 22, 1995, effective July 1, 1996; amended July 15, 1999, effective January 1, 2000; renumbered Rule 590 and Comment revised March 1, 2000, effective April 1, 2001; amended September 18, 2008, effective November 1, 2008; Comment revised , 2012, effective , 2012.
Committee Explanatory Reports:
* * * * * Report explaining the proposed Comment revisions concerning jury procedures at degree of guilt published with the Court's Order at 42 Pa.B. 4569 (July 21, 2012).
CHAPTER 6. TRIAL PROCEDURES IN COURT CASES
PART A. General Provisions Rule 602. Presence of the Defendant.
* * * * *
Comment Nothing in this rule is intended to preclude a defendant from affirmatively waiving the right to be present at any stage of the trial, see e.g., Commonwealth v. Vega, 553 Pa. 255, 719 A.2d 227 (Pa. 1998) (plurality) (requirements for a knowing and intelligent waiver of a defendant's presence at trial includes a full, on-the-record colloquy concerning consequences of forfeiture of the defendant's right to be present) or from waiving the right to be present by his or her actions, see e.g., Commonwealth v. Wilson, 551 Pa. 593, 712 A.2d 735 (Pa. 1998) (defendant, who fled courthouse after jury was impaneled and after subsequent plea negotiations failed, was deemed to have knowingly and voluntarily waived the right to be present). But see Commonwealth v. Ford, 539 Pa. 85, 650 A.2d 433 (1994) (''[R]ight of defendant to be present at trial of capital offense is transformed into obligation due to gravity of potential outcome.'')
Former Rule 1117(c) was moved to Rule 462 (Trial de novo) in 2000 as part of the reorganization of the rules.
Official Note: Rule 1117 adopted January 24, 1968, effective August 1, 1968; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; renumbered Rule 602 and amended March 1, 2000, effective April 1, 2001; amended December 8, 2000, effective January 1, 2001; Comment revised , 2012, effective , 2012.
Committee Explanatory Reports:
* * * * * Report explaining the proposed revision to the Comment cross-referencing Commonwealth v. Ford at 42 Pa.B. 4569 (July 21, 2012).
CHAPTER 8. SPECIAL RULES FOR CASES IN WHICH DEATH SENTENCE IS AUTHORIZED (Editor's Note: See 38 Pa.B. 5429 for the text of Rule 803.)
Rule 803. Guilty Plea Procedure.
* * * * *
Comment For the procedure for the entry of guilty pleas, see Rule 590. For the sentencing procedure if the crime is determined to be murder of the first degree, see Sentencing Code, 42 Pa.C.S. § 9711(b).
The 2008 amendment to paragraph (A) recognizes the Commonwealth's right to have a jury determine the degree of guilt following a plea of guilty to murder generally. See Article I, § 6 of the Pennsylvania Constitution that provides that ''the Commonwealth shall have the same right to trial by jury as does the accused.'' See also Commonwealth v. White, 589 Pa. 642, 910 A.2d 648 (2006). Any proceeding, held pursuant to paragraph (A), where the degree of guilt is determined by a jury should follow the procedures for jury trials contained in Chapter 6 Part C of these rules, Rules 631—649.
Official Note: Original Rule 352 adopted September 22, 1976, effective November 1, 1976; amended May 26, 1977, effective July 1, 1977; rescinded April 2, 1978, effective immediately. Former Rule 352 adopted July 1, 1985, effective August 1, 1985; renumbered Rule 353 February 1, 1989, effective July 1, 1989; renumbered Rule 802 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 803 June 4, 2004, effective November 1, 2004; amended September 18, 2008, effective November 1, 2008; Comment revised , 2012, effective , 2012.
Committee Explanatory Reports:
* * * * * Report explaining the proposed Comment revisions concerning jury procedures at degree of guilt published with the Court's Order at 42 Pa.B. 4569 (July 21, 2012).
REPORT
Proposed Revisions to the Comments to Pa.Rs.Crim.P. 590, 602, and 803
Jury Procedures in Degree of Guilt Hearings; Defendant's Presence at Capital Trials The Criminal Procedural Rules Committee recently examined some of the procedures relating to murder trials. As a result of this examination, the Committee is considering Comment revisions to address two questions. The first would clarify in the Comments to Rules 590 and 803 the jury procedures that are available when a degree of guilt hearing is held before a jury. The second proposal would recommend a revision to the Comment to Rule 602 to add a cross-reference to the case of Commonwealth v. Ford, 539 Pa. 85, 650 A.2d 433 (1994), that requires the defendant's presence at trial of a capital offense.
Jury Procedures in Degree of Guilt Hearings
Several questions were raised with the Committee concerning certain procedures in degree of guilt hearings held pursuant to Rules 590(C) and 803(A). Rule 590(C) provides that, in non-capital murder cases, when a defendant enters a guilty or nolo contendere plea to murder generally, the degree of guilt shall be determined by a jury unless the Commonwealth elects otherwise. Rule 803(A) has a similar provision in capital cases.
Among the questions the Committee considered was whether jurors in a degree of guilt hearing should be permitted to take notes as provided in Rule 644 or whether it was permissible to provide written jury instructions as provided in Rule 646. Neither Rule 644 nor 646 specifically addresses degree of guilt hearings. The concern that was articulated was that, because most of the rules regarding procedures during jury proceedings speak in terms of occurring ''at trial,'' degree of guilt hearings might not be considered ''trials'' under the rules and that a narrow reading might preclude jurors from using these procedures in degree of guilt hearings.
The consensus of the Committee was that these types of procedures should be available to jurors in degree of guilt hearings. During its discussion of these particular procedures, the members observed that most jury trial procedures would be applicable in degree of guilt hearings. The conclusion of the Committee was that the proposal be broadened to provide that jurors in these types of hearings should be allowed all the procedures available to jurors in regular trials.
The Committee concluded that such an approach would be consistent with the existing law regarding degree of guilt hearings that degree of guilt hearings are comparable to trials generally. In Commonwealth v. White, 589 Pa. 642, 910 A.2d 648 (2006), which recognized that the Commonwealth has a right to a jury in degree of guilt hearings, the Supreme Court held that:
A plea of guilty to murder generally is a unique plea, unlike anything else provided in statute or decisional law. . . In a guilty plea, no evidence is presented against the defendant. . . A Rule 590(C) proceeding, on the other hand still requires the presentation of evidence, the arguments of counsel and the finding of facts in support of a verdict. . . . This option, created by rule and available only to murder defendants, is not a simple guilty plea. It is instead a variation of a waiver trial . . .Id. at 660.
The Supreme Court also held that the 1998 amendment to the Pennsylvania Constitution that granted the Commonwealth a right to jury trial equal to that of the defendant applied to degree of guilt hearings. It was the White case that prompted the addition of paragraph (C) to Rule 590 and paragraph (A) to Rule 803 in 2008.
A degree of guilt hearing, therefore, should be conducted in the same manner as a regular jury trial. The Committee examined the jury rules found in Chapter 6 Part C (Jury Procedures) and concluded that they would all be applicable in degree of guilt hearings before a jury.
The Comment to Rule 590 would be revised to state that the procedures for jury trial listed in Chapter 6 Part C, Rules 631—649, should be followed in degree of guilt hearings. Similarly, Rule 803(A) also contains a provision for degree of guilt hearings in capital cases. An identical proposed revision to the Comment to that rule would be added as well.
Waiver of Defendant's Presence in Capital Cases
The Committee also discussed the issue of whether a defendant in a capital case may waive his or her presence during trial in a capital case. Although unusual, there were a few reported instances recently where the defendant sought to be absent from the trial.
This issue was definitively addressed in Commonwealth v. Ford, 539 Pa. 85, 650 A.2d 433 (1994). In Ford, one of the issues that the defendant in a capital murder case raised was the trial court's refusal to permit him to absent himself from the trial; the defendant claimed that his appearance was so menacing that fair trial could not be obtained with his presence. The Supreme Court held:
The Sixth Amendment to the United States Constitution, Article I Section 9 of the Pennsylvania Constitution, and the Pennsylvania Rules of Criminal Procedure 1117(a) guarantee the right of an accused to be present in court at every stage of a criminal trial. A defendant may waive this right as long as he is not charged with a capital offense. When charged with a capital offense, a defendant's right to be present at his own trial is transformed into an obligation because of the gravity of the potential outcome. See Pa.R.Crim.P. 1117(a); Commonwealth v. Diehl, 378 Pa. 214, 107 A.2d 543 (1954); Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). The trial court correctly required the appellant's presence as he had no right to exclude himself.539 Pa. at 100, 650 A.2d at 440.
The Committee agreed that a cross-reference to Ford in the Comment to Rule 602 would be helpful. The cross-reference also includes a parenthetical describing the requirement of the defendant's presence in a capital case.
[Pa.B. Doc. No. 12-1337. Filed for public inspection July 20, 2012, 9:00 a.m.]
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