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PA Bulletin, Doc. No. 96-1701




[234 PA. CODE CH. 50]

Proposed Amendments to Rule 71: Procedure Following Arrest Without Warrant

[26 Pa.B. 4892]


   The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rule 71 (Procedure Following Arrest Without Warrant). The amendment makes it clear that in circumstances when a defendant is not capable of proceeding, the rule does not require that an immediate trial be given to the defendant. 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 precedes the Report.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel, Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Criminal Procedural Rules Committee, P. O. Box 1325, Doylestown, PA 18901, no later than Friday, November 8, 1996.

By the Criminal Procedural Rules Committee


Annex A





Rule 71.  Procedure Following Arrest Without Warrant.

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   (c)  When the defendant has not been released from custody under paragraph (b), the defendant shall be taken without unnecessary delay before the issuing authority where a citation shall be filed against the defendant. The defendant shall be given an immediate trial unless:

   (1)  the Commonwealth is not ready to proceed, or the defendant requests a postponement or is not capable of proceeding, and in [either event] any of these circumstances the defendant shall be given the opportunity to deposit collateral for appearance on the new date and hour fixed for trial[,]; or

   (2)  the defendant's criminal record must be ascertained before trial as specifically required by statute for purposes of grading the offense charged, in which event the defendant shall be given the opportunity to deposit collateral for appearance on the new date and hour fixed for trial, which shall be after the issuing authority's receipt of the required information.

   Official Note: Adopted July 12, 1985, effective January 1, 1986; Comment revised September 23, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; amended August 9, 1994, effective January 1, 1995; amended                     , effective                           .


   [This rule replaces previous Rule 62.]

*      *      *      *      *

Committee Explanatory Reports:

   Report explaining the August 9, 1994 amendments published at 22 Pa.B. 6 (January 4, 1992); Final Report published with the Court's Order at 24 Pa.B. 4342 (August 27, 1994).

   Report explaining the                     , 1996 amendments to paragraph (c)(1) published at 26 Pa.B. 4893 (October 12, 1996).


Proposed Amendments to Pa.R.Crim.P. 71:

Procedure Following Arrest Without Warrant

   The Committee has received correspondence inquiring whether under the immediate trial requirement of paragraph (c) of Rule 71 (Procedure Following Arrest Without Warrant) an issuing authority is permitted to delay the trial in situations in which the defendant is not capable of proceeding, such as when an individual is arrested for public drunkenness and is too intoxicated to understand the nature of the proceedings. The correspondents also questioned whether the rules permit an issuing authority to detain a defendant who was unable to deposit collateral.

   The Committee agreed that summary trials should not be held in cases in which a defendant is not capable of proceeding. We also recognized that the wording of Rule 71(c)(1) and (2) could be construed as requiring an immediate trial except in the three situations enumerated in paragraphs (c)(1) and (c)(2). In view of this conclusion, the Committee is proposing an amendment to paragraph (c)(1) that would add to the list of the exceptions to the immediate trial requirement the situation in which the defendant is not capable of proceeding. Paragraph (c)(1) would also be amended to make it clear that, in any of the situations enumerated in the paragraph, the defendant must be given the opportunity to deposit collateral for his or her appearance at trial.

   The Committee considered the question about collateral, and reviewed the rule history. As explained in the Committee's Report describing the amendments to Chapter 50 of the Criminal Rules in which the term ''collateral'' was proposed, the term ''collateral'' replaced the terms ''bail'' and ''security'' in summary cases because it conveyed the dual purpose of the amount of money that is deposited. The dual purpose was described as follows:

First, the amount posted is used as bail to secure the defendant's appearance at the summary trial. Second, the amount posted is used as security when it is forfeited after conviction to satisfy any fine and costs. 13 Pa.B. 2948, 2963 (10/1/93).1
See also Rule 81 (Collateral).

   In view of the rule history, which makes it clear that the replacement of the terms ''bail'' and ''security'' in the summary case rules with the term ''collateral'' was not intended to change existing practice, and agreeing that it is well-established in practice that a defendant may be detained until he or she deposits the amount of money set to insure appearance, the Committee agreed that there is no need for further clarification in the summary case rules.

[Pa.B. Doc. No. 96-1701. Filed for public inspection October 11, 1996, 9:00 a.m.]


1  The Report further explains that ''the bail principles of ROR or percentage bail should be applicable in summary cases; otherwise a defendant, particularly an indigent, could be penalized or denied a hearing because he or she cannot pay the full amount of the fine and costs as security.'' 13 Pa.B. 2948, 2963 (10/1/93).

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