THE COURTS
Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CHS. 1 AND 2 ]
Order Approving the Revisions to the Comments to Rules 100 and 231 of the Rules of Criminal Procedure; No. 423 Criminal Procedural Rules Doc.
[43 Pa.B. 652]
[Saturday, February 2, 2013]
Order Per Curiam
And Now, this 18th day of January, 2013, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication in the interests of justice and efficient administration pursuant to Pa.R.J.A. No. 103(a)(3), 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 to the Comments to Pennsylvania Rules of Criminal Procedure 100 and 231 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 May 1, 2013.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES Rule 100. Scope of Rules.
(A) These rules shall govern criminal proceedings in all courts including courts not of record. Unless otherwise specifically provided, these rules shall not apply to juvenile or domestic relations proceedings.
(B) Each of the courts exercising criminal jurisdiction may adopt local rules of procedure in accordance with Rule 105.
Comment Under the 1974 amendment, the Pennsylvania Rules of Criminal Procedure, formerly inapplicable to summary cases in Philadelphia, now apply to such cases as specified in Chapter 10.
These rules apply to proceedings involving juveniles only to the extent that the Juvenile Act does not vest jurisdiction in the Juvenile Court, and as provided in the Rules of Juvenile Court Procedure. See, e.g., Juvenile Act, 42 Pa.C.S. §§ 6302—6303, 6355; Vehicle Code, 75 Pa.C.S. § 6303, and Rules of Juvenile Court Procedure 105 (Search Warrants), 395 (Procedure to Initiate Criminal Information), and 396 (Bail). These rules also apply to cases in which an individual under the age of 18 allegedly commits a crime but the charges are not filed until the individual is 21 and therefore outside the Juvenile Act's definition of child. See 42 Pa.C.S. § 6302. See also Commonwealth v. Monaco, 869 A.2d 1026 (Pa. Super. 2005).
Official Note: Prior rule suspended effective May 1, 1970. Present Rule 1 adopted January 31, 1970, effective May 1, 1970; amended April 26, 1972, effective immediately; amended June 28, 1974, effective July 1, 1974; amended January 28, 1983, effective July 1, 1983; Comment revised July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; renumbered Rule 100 and amended March 1, 2000, effective April 1, 2001; Comment revised April 1, 2005, effective October 1, 2005; Comment revised January 18, 2013, effective May 1, 2013.
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. 1478 (March 18, 2000).
Final Report explaining the April 1, 2005 Comment revision concerning Rules of Juvenile Court Procedure published with the Court's Order at 35 Pa.B. 2213 (April 16, 2005).
Final Report explaining the January 18, 2013 Comment revision concerning application of Criminal Rules to cases involving individuals under the age of 18 at time of offense and over 21 at time charges filed published with the Court's Order at 43 Pa.B. 653 (February 2, 2013).
CHAPTER 2. INVESTIGATIONS
PART B(1). Investigating Grand Juries Rule 231. Who May be Present During Session of an Investigating Grand Jury.
* * * * *
Comment As used in this rule, the term ''witness'' includes both juveniles and adults.
The 1987 amendment provides that either the attorney for the Commonwealth, or a majority of the grand jury, through their foreperson, may request that certain, specified individuals, in addition to those referred to in paragraph (A), be present in the grand jury room while the grand jury is in session. As provided in paragraph (B), the additional people would be limited to an interpreter or interpreters the supervising judge determines are needed to assist the grand jury in understanding the testimony of a witness; a security officer [of] or security officers the supervising judge determines are needed to escort witnesses who are in custody or to protect the members of the grand jury and the other people present during a session of the grand jury; and any individuals the supervising judge determines are required to assist the grand jurors with the presentation of evidence. This would include such people as the case agent (lead investigator), who would assist the attorney for the Commonwealth with questions for witnesses; experts, who would assist the grand jury with interpreting difficult, complex technical evidence; or technicians to run such equipment as tape recorders, videomachines, etc.
It is intended in paragraph (B) that when the supervising judge authorizes a certain individual to be present during a session of the investigating grand jury, the person may remain in the grand jury room only as long as is necessary for that person to assist the grand jurors.
Paragraph (C), added in 1987, generally prohibits the disclosure of any information related to testimony before the grand jury. There are, however, some exceptions to this prohibition enumerated in Section 4549 of the Judicial Code, 42 Pa.C.S. § 4549.
Official Note: Rule 264 adopted June 26, 1978, effective January 9, 1979; amended June 5, 1987, effective July 1, 1987; renumbered Rule 231 and amended March 1, 2000, effective April 1, 2001; Comment revised January 18, 2013, effective May 1, 2013.
Committee Explanatory Reports:
Report explaining the June 5, 1987 amendments adding paragraphs (B)—(D) published at 17 Pa.B. 167 (January 10, 1987).
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).
Final Report explaining the January 18, 2013 Comment revision concerning definition of witness as used in this rule published at 43 Pa.B. 653 (February 2, 2013).
FINAL REPORT1
Revisions of the Comments to Pa.Rs.Crim.P.
100 and 231On January 18, 2013, effective May 1, 2013, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the revision of the Comments to Pa.R.Crim.P. 100 (Scope of Rules), and Pa.R.Crim.P. 231 (Who May Be Present During Session of an Investigating Grand Jury) to clarify (1) when an individual is under 18 at the time of an alleged offense but the case is instituted after the individual is 21 that the case is to proceed pursuant to the Criminal Rules; and (2) that ''witness'' as used in the investigating grand jury rules includes juveniles and adults.
Both of the above changes were developed by the Criminal Procedural Rules Committee in response to communications from the Juvenile Court Procedural Rules Committee.
Rule 100
In a 2012 meeting, the Juvenile Court Procedural Rules Committee requested the Criminal Procedural Rules Committee to consider clarifying in the Criminal Procedural Rules in cases in which an individual is under the age of 18 at the time of an alleged offense but the case is not instituted until after the individual reaches the age of 21 that the case is to proceed pursuant to the Criminal Procedural Rules. It was reported that, although the case law is clear, there continues to be confusion about how procedurally to proceed in these cases among members of the bench and bar.
The Committee noted that the Rule 100 Comment already includes provisions clarifying the application of the Criminal Procedural Rules when the defendant is a juvenile. The members concluded that the addition of clarifying language to the Rule 100 Comment as suggested by the Juvenile Court Procedural Rules Committee would be helpful to the bench and bar. The clarifying language contains a cross-reference to Commonwealth v. Monaco, 869 A.2d 1026 (Pa.Super. 2005), a case in which this principle was applied in a child sexual assault case in which the victim did not come forward and the defendant was not charged until after the defendant had turned 22, and a cross-reference to 42 Pa.C.S. § 6302.
Rule 231
The Criminal Procedural Rules Committee also considered a suggestion from the Juvenile Court Procedural Rules Committee that the rules should provide that, when a juvenile is the target of or a witness for an investigating grand jury, the juvenile must be advised of the right to counsel during any stage of the investigation, and counsel must be permitted into the investigating grand jury room when the juvenile testifies.
In considering the Juvenile Court Procedural Rules Committee's suggestions, the Committee observed:
• Under the provisions of 42 Pa.C.S. § 4549(c), a witness, which would include a juvenile when called to testify, must have the assistance of counsel including when before the grand jury.
• Rule of Criminal Procedure 231(A) provides that ''counsel for the witness may be present as provided by law.''
• The ''law'' in Section 4549(c)(3) is that counsel may be present during the questioning of the witness, may advise the witness, but may not make objections or arguments, etc., and the supervising judge may remove counsel in the same manner as the judge would have in any court proceeding.
• The right to counsel in grand jury investigations does not attach unless an individual is called as a witness; there is no right to counsel for adults or juveniles at any phase of an investigation by a grand jury, even if that individual is a target of the investigation.
• At this stage of the proceeding, it would be inappropriate for a procedural rule to require that an individual be advised about a grand jury investigation or that the individual be advised about counsel; such a procedure potentially would constitute an expansion of the right to counsel before grand juries.
The Committee advised the Juvenile Court Procedural Rules Committee of these points and declined to recommend such changes. However, noting that Rule of Criminal Procedure 231 could be interpreted as applying only to adult witnesses' right to counsel in the investigating grand jury context, an interpretation the Committee believes is incorrect, the Committee agreed that the Rule 231 Comment should be revised to clarify that ''witness'' as used in the rule includes adults and juveniles.
[Pa.B. Doc. No. 13-172. Filed for public inspection February 1, 2013, 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.
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