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PA Bulletin, Doc. No. 07-2115


Title 234--RULES


[ 234 PA. CODE CH. 5 ]

Order Revising the Comment to Rule 581; No. 359 Criminal Procedural Rules; Doc. No. 2

[37 Pa.B. 6203]
[Saturday, November 24, 2007]


Per Curiam:

   Now, this 2nd day of November, 2007, upon the recommendation of the Criminal Procedural Rules Committee; this proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3) in the interests of justice and efficient administration, 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 amending of the Comment to Rule of Criminal Procedure 581 is amended in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective February 1, 2008.

Annex A



Rule 581. Suppression of Evidence.

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   The rule is designed to provide one single procedure for the suppression of evidence alleged to have been obtained in violation of the defendant's rights. The first revision of this rule extended its coverage to violation of the fourth, fifth, and sixth amendments of the Constitution of the United States; such as those proscribed by Mapp v. Ohio, 367 U. S. 643, 81 S.Ct. 1684 (1961); Escobedo v. Illinois, 378 U. S. 478, 84 S.Ct. 1758 (1964); Jackson v. Denno, 378 U. S. 368, 84 S.Ct. 1774 (1964); Miranda v. Arizona, 384 U. S. 436, 86 S.Ct. 1602 (1966); United States v. Wade, 388 U. S. 218, 87 S.Ct. 1926 (1967); and Gilbert v. California, 388 U. S. 263, 87 S.Ct. 1951 (1967). Later Pennsylvania cases such as Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 ([Pa.] 1972), sanctioned the use of Rule 581 to test certain violations of Pennsylvania Rules of Criminal Procedure; however, Common- wealth v. Murphy, 459 Pa. 297, 328 A.2d 842 ([Pa.] 1974), questioned whether the rule in its earlier form permitted such a challenge. The rule was therefore further revised in 1977 to permit use of the suppression motion to test admissibility of evidence where the issue is the method by which the evidence was obtained. The rule merely provides a vehicle by which the court may determine the issues involved and sets the time at which the application is to be made. The rule and the 1977 revision do not purport to define or expand the basis on which suppression may be had. There is no longer a multi-county provision for suppression hearings because it is the opinion of the Committee that the prosecution county is the most interested forum for determining the admissibility of challenged evidence. In addition, the order of the judge determining admissibility is to be final and binding at trial, absent newly discovered and hitherto undiscoverable evidence.

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   In all cases, the burden of production is now upon the Commonwealth. See Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 ([Pa.] 1968). The burden of persuasion is there as well. See Miranda v. Arizona, 384 U. S. 436, 479, 86 S.Ct. 1602, 1630 (1966). See also, Commonwealth ex rel. Butler v. Rundle, supra., which establishes a preponderance of the evidence as the standard of proof.

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   The law on closure of criminal proceedings is still developing. The 1985 amendments, therefore, are intended to remove the possibility that the rule will be mistaken to imply that the defendant has an absolute right to closure of a suppression hearing. It is intended that a suppression hearing will be held in open court unless the court orders all or part of the hearing closed in accordance with the existing case law. See, e.g., United States v. Criden, 675 F.2d 550 (3d Cir. 1982); Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 ([Pa.] 1980); Commonwealth v. Buehl, 316 Pa.Super. 215, 462 A.2d 1316 ([Pa. Super.] 1983), in which the courts recognized the public's general constitutional right to access to criminal proceedings, which right is to be balanced with the defendant's constitutional right to a fair trial. With regard to a court ordering part of a criminal proceeding closed, see Commonwealth v. Contakos, 499 Pa. 340, 453 A.2d 578 ([Pa.] 1982), in which a new trial was ordered because the public had been excluded from a portion of the trial although the press was present.

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   In Commonwealth v. Millner, 585 Pa. 237, 888 A.2d 680 (2005), the Court reiterated the importance of a specific and contemporaneous announcement of findings of fact and conclusions of law at the conclusion of the suppression hearing.

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   Official Note: Rule 323 adopted March 15, 1965, effective September 15, 1965; amended November 25, 1968, effective February 3, 1969. The 1968 amendment, suspended, amended, and consolidated former Rules 323, 324, 2000 and 2001 of the Pennsylvania Rules of Criminal Procedure. This was done in accordance with Section 1 of the Act of July 11, 1957, P. L. 819, 17 P. S. §  2084. Paragraph (f) amended March 18, 1972, 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; paragraphs (f) and (g) and Comment amended September 23, 1985, effective January 1, 1986; effective date extended to July 1, 1986; renumbered Rule 581 and amended March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004; Comment revised November 2, 2007, effective February 1, 2008.

Committee Explanatory Reports:

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   Final Report explaining the November 2, 2007 revisions to the Comment regarding the requirement for the judge to make findings of fact and conclusions of law at the conclusion of the suppression hearing published with the Court's Order at 37 Pa.B. 6204 (November 24, 2007).


Revision of the Pa.R.Crim.P. 581 Comment

Findings of Fact and Conclusions of Law in Suppression Motions

   On November 2, 2007, effective February 1, 2008, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the revision of the Comment to Rule 581 to include a cross-reference to the Supreme Court's opinion in Commonwealth v. Millner, 585 Pa. 237, 888 A2d 680 (2005), reiterating the requirement for a trial judge to make findings of fact and conclusions of law at the time of issuing a decision on a suppression motions.

   As part of its on-going review of caselaw as it impacts the rules, the Committee examined the Court's opinion in Commonwealth v. Millner, 585 Pa. 237, 888 A.2d 680 (2005). The issue in Millner that the Committee considered for rule change was the fact that the trial court had failed to issue findings of facts and conclusions of law when it ordered the suppression of evidence. The trial court waited until after the Commonwealth filed a timely appeal to the Superior Court to issue an opinion addressing the facts and law of the case but failing to address the Commonwealth's question of whether the defendant had a reasonable expectation of privacy in the automobile in which evidence was found.

   The Court noted that the trial court had clearly failed to meet the requirement of Rule 581(I) which mandates that, at the conclusion of the hearing in which it grants a motion to suppress, ''the judge shall enter on the record a statement of findings of fact and conclusions of law.'' The Court, while recognizing that it is not uncommon for suppression judges to fail to comply with this requirement, emphatically reiterated the requirements of the rule , stating, ''We stress, however, the essential purposes served by the Rule, and we disapprove of non-compliance with its unambiguous mandate.'' 888 A.2d at 688.

   In view of the continued disregard of the clear mandate of the rule, the Committee added a citation to the Millner case to the Rule 581 Comment to emphasize the mandatory requirement in paragraph (I) that the judge provide timely findings of fact and conclusions of law.

[Pa.B. Doc. No. 07-2115. Filed for public inspection November 21, 2007, 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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