THE COURTS

Title 234—RULES OF
CRIMINAL PROCEDURE

[ 234 PA. CODE CH. 5 ]

Proposed Amendment of Pa.R.Crim.P. 587

[48 Pa.B. 4094]
[Saturday, July 14, 2018]

 The Criminal Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania the amendment of Rule 587 (Motions for Dismissal) for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.

 Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They neither will constitute a part of the rules nor will be officially adopted by the Supreme Court.

 Additions to the text of the proposal are bolded and underlined; deletions to the text are bolded and bracketed.

 The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:

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.us

 All communications in reference to the proposal should be received by no later than Friday, August 31, 2018. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.

By the Criminal Procedural
Rules Committee

BRIAN W. PERRY, 
Chair

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES

PART G(1). Motion Procedures

Rule 587. Motion for Dismissal.

*  *  *  *  *

 (B) Double Jeopardy and Sections 109 through 111 of the Crimes Code

 (1) A motion to dismiss on double jeopardy grounds or pursuant to Sections 109—111 of the Crimes Code, 18 Pa.C.S. §§ 109—111, shall state specifically and with particularity the basis for the claim of double jeopardy or of violation of Sections 109—111 of the Crimes Code, 18 Pa.C.S. §§ 109—111, and the facts that support the claim.

*  *  *  *  *

Comment

 Cf. Pa.R.J.A. 1901 concerning termination of inactive cases.

 A motion filed pursuant to this rule must comply with the provisions of Rule 575 (Motions and Answers) and Rule 576 (Filing and Service by Parties).

 In any case in which a summary offense is joined with a misdemeanor, felony, or murder charge, and therefore is part of the court case, a dismissal of the prosecution pursuant to paragraph (A)(1) would include the dismissal of the summary offense. See the Comment to Rule 502 (Instituting Proceedings in Court Cases).

 Paragraph (B) was amended in 2018 to provide that this rule applies to motions to dismiss alleging a bar to prosecution under Sections 109—111 of the Crimes Code, 18 Pa.C.S. §§ 109—111. See Commonwealth v. Diggs, 172 A.3d 661 (Pa. Super. 2017).

 ''Hearing,'' as used in paragraph (B)(2) includes the taking of testimony, or the hearing of argument, or both. See Rule 115 for the procedures for the recording and transcribing of the hearing.

*  *  *  *  *

 Official Note: Rule 316 adopted June 30, 1964, effective January 1, 1965; amended June 8, 1973, effective July 1, 1973; amended February 15, 1974, effective immediately; renumbered Rule 315 and 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; Comment revised January 28, 1983, effective July 1, 1983; amended August 12, 1993, effective September 1, 1993; renumbered Rule 587 and amended March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004; Comment revised March 9, 2006, effective September 1, 2006; amended June 4, 2013, effective July 4, 2013; amended     , 2018, effective     , 2018.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the June 4, 2013 provisions of the new paragraph (B) concerning motions to dismiss on double jeopardy grounds published with the Court's Order at 43 Pa.B. 3331 (June 22, 2013).

 Report explaining the proposed amendment concerning the applicability of paragraph (B) to motions to dismiss based on 18 Pa.C.S. §§ 109—111 published for comment at 48 Pa.B. 4095 (July 14, 2018).

REPORT

Proposed Amendment of Pa.R.Crim.P. 587

Motions for Dismissal Pursuant to
18 Pa.C.S. §§ 109—111

 The Committee received a suggestion to add a reference to Section 110 of the Crimes Code, 18 Pa.C.S. § 110, to Rule 587 (Motion for Dismissal) in light of the holding in Commonwealth v. Diggs, 172 A.3d 661 (Pa. Super 2017). Diggs held that motions to dismiss pursuant to Section 110, which provides for compulsory joinder, should follow the procedure in Rule 587. In Diggs, the defendant was charged with a misdemeanor and several summary offenses. After he was tried on the summary offenses in the Philadelphia Traffic Court, the misdemeanor was listed for trial in the Philadelphia Municipal Court. The defen-dant sought to have the misdemeanor dismissed pursuant to Section 110. On appeal from the denial of the motion, the Superior Court remanded the case to the lower courts for a determination of the factors required in Rule 587(B), holding that the procedures in Rule 587 applied to motions to dismiss alleging a violation of Section 110, and that Section 110 ''embodies the same basic purposes as those underlying the double jeopardy clauses. . . .''

 The Committee noted that there are several other related sections of the Crime Code to which the same rationale in Diggs could be applied. These are Sections 109, 111, and, possibly, 112. Collectively, these statutes bar prosecutions because of prior related prosecutions. Section 109 (When Prosecution Barred by Former Prosecution for the Same Offense), as the title states, bars instances of a second prosecution for the same occurrence under the same statute. According to the Official Comment to Section 109, the purpose of the section is to codify the rule that ''a former conviction of the accused bars a later prosecution of him for the same offense.'' Section 110 (When Prosecution Barred by Former Prosecution for Different Offense) prohibits a second prosecution for the same occurrence or conduct or criminal episode but under different statutes. In addition to codifying the constitutional doctrine of collateral estoppel, Section 110 also codifies the holding in Commonwealth v. Campana, 314 A.2d 854 (Pa. 1974) which created the compulsory joinder rule determined under the Court's supervisory powers. Section 111 (When Prosecution Barred by Former Prosecution in Another Jurisdiction) bars a second prosecution for the same occurrence or conduct in a different jurisdiction. Section 111 provides that, when a defendant raises a non-frivolous prima facie claim that such a prosecution is barred, the Commonwealth must prove by a preponderance of the evidence that the ''same conduct'' is not involved, or that a statutory exception to the statutory bar on re-prosecution applies. See Commonwealth v. Wetton, 591 A.2d 1067 (Pa. Super. 1911), aff'd 641 A.2d 574 (Pa. 1994).

 The Committee concluded that all three of these statutes should be incorporated into the procedures provided in Rule 587. Motions for dismissal based on these statutes therefore would require a hearing with the judge required to make findings of fact, including a specific finding as to frivolousness, and conclusions of law. If the judge finds that the motion is frivolous, the defendant has a right to file a petition for review of that determination within 30 days. If the judge denies the motion but does not find it frivolous, the denial is immediately appealable as a collateral order. The proposed changes would modify the title to paragraph (B) of Rule 587 and add the above statutory sections to be adjudicated pursuant to the procedures in paragraph (B)(1). The Comment would contain a cross-reference to Diggs.

 The Committee was uncertain whether Section 112 should be included as well. Section 112 (Former Prosecution before Court Lacking Jurisdiction or When Fraudulently Procured by the Defendant) provides exceptions to Sections 109 to 111. In other words, even if Sections 109 through 111 barred a second prosecution, Section 112 would allow a second prosecution if the former prosecution was before a court lacking jurisdiction, was procured fraudulently to avoid a sentence, or if the former prosecution ending in a conviction which was held invalid in a subsequent proceeding.

 The inclination of the Committee was not to include this Section in the rule since it seemed that it would not be the basis of a motion for dismissal but rather would beraised as a defense to a motion for dismissal pursuant to Sections 109—111. However, the Committee wondered if there might be circumstances in which it would be helpful to apply the Rule 587(B) procedures to situations involving Section 112. The Committee therefore is seeking comment specifically on whether this Section should be included in the proposed amendments.

[Pa.B. Doc. No. 18-1066. Filed for public inspection July 13, 2018, 9:00 a.m.]

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