1702 Order approving comment revisions to Rules 102 and 182: procedure in court cases; conditions of the program; no. 212; doc. no. 2
PART I. GENERAL [234 PA. CODE CH. 100] Order Approving Comment Revisions to Rules 102 and 182: Procedure in Court Cases; Conditions of the Program; No. 212; Doc. No. 2 [26 Pa.B. 4894] Order Per Curiam:
Now, this 26th day of September, 1996, upon the recommendation of the Criminal Procedural Rules Committee, 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 revised Comments to Rules of Criminal Procedure 102 and 182 are approved, as follows.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective immediately.
Annex A TITLE 234. RULES OF CRIMINAL PROCEDURE PART I. GENERAL CHAPTER 100. PROCEDURE IN COURT CASES PART I. INSTITUTING PROCEEDINGS Rule 102. Procedure in Court Cases Initiated by Arrest Without Warrant.
* * * * * Official Note: Original Rule 118 and 118(a), adopted June 30, 1964, effective January 1, 1965, suspended January 31, 1970, effective May 1, 1970. New Rule 118 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 130 September 18, 1973, effective January 1, 1974; amended December 14, 1979, effective April 1, 1980; amended April 24, 1981, effective July 1, 1981; amended January 28, 1983, effective July 1, 1983; Comment revised July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; renumbered Rule 102 and amended August 9, 1994, effective January 1, 1995; Comment revised September 26, 1996, effective immediately.
Comment Paragraph (a) requires that the defendant receive a prompt preliminary arraignment. See Rule 140 (Preliminary Arraignment).
Paragraph (a) is intended to permit closed circuit television preliminary arraignments.
Paragraph (b) provides an exception to the requirement that a defendant be afforded a preliminary arraignment after a warrantless arrest. It permits an arresting officer, in specified circumstances, to release a defendant rather than take the defendant before an issuing authority for preliminary arraignment. Prior to 1994, this exception applied to all DUI cases, but in other cases was only available at the election of individual judicial districts. With the 1994 amendments, the exception is now an option available to arresting officers Statewide and may not be prohibited by local rule.
Pursuant to paragraph (b), the police will either promptly arrange for the defendant's release or, if it is necessary to detain the defendant, provide a preliminary arraignment. Prompt release allows, of course, for the administration of any sobriety tests pursuant to the Vehicle Code, 75 Pa.C.S. § 1547, and for the completion of any post-arrest procedures authorized by law.
With respect to ''necessary'' delay, see, e.g., Commonwealth v. Williams, [484 Pa. 590,] 400 A.2d 1258 (Pa. 1979).
Appropriate circumstances for following the procedure under paragraph (b) may vary. Among the factors that may be taken into account are whether the defendant resides in the Commonwealth, and whether he or she can safely be released without danger to self or others.
By statute, when a police officer has arrested a defendant in a domestic violence case, the defendant may not be released but must be brought before the issuing authority for preliminary arraignment. See 18 Pa.C.S. § 2711. See also 23 Pa.C.S. § 6113(c) of the Protection from Abuse Act.
With reference to provisions of paragraph (c) relating to the issuance of a summons, see also Part IIIA of this Chapter, Summons Procedures.
[Paragraph (a) is intended to permit closed circuit television preliminary arraignments.]
For procedures in summary cases initiated by an arrest without warrant, see Rule 71.
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 September 26, 1996 Comment revision published with the Court's Order at 26 Pa.B. 4895 (October 12, 1996).
PART VII. ACCELERATED REHABILITATIVE DISPOSITION COURT CASES Rule 182. Conditions of the Program.
* * * * * Official Note: Approved May 24, 1972, effective immediately; amended January 28, 1983, effective February 1, 1983; Comment revised April 10, 1989, effective July 1, 1989; Comment revised September 26, 1996, effective immediately.
Comment [The 1983 amendment clarifies] Paragraph (a) makes it clear that reasonable charges for the expense of administering the program may be imposed on defendants. It is intended that these charges may be imposed on those admitted into the program and that no separate fees be required for application for admission into the program.
The practice has been to permit qualified individuals who are indigent to participate in the ARD program without payment of costs or charges. The 1983 amendment is not intended to change this practice; rather, it is intended that such practice will continue.
Concerning restitution, see 42 Pa.C.S. § 9782 (Collection of restitution, reparation, fees, costs, fines, and penalties).
A defendant may be required to accept conditions of the program as provided by statute. See, e.g., [Vehicle Code § 3731(e)(6),] 75 Pa.C.S. § 3731(e)(6) [(Supp. 1989)].
Explanatory Reports:
Report explaining the September 26, 1996 Comment revision published with the Court's Order at 26 Pa.B. 4895 (October 12, 1996).
FINAL REPORT Revision of Comments to Rules 102 and 182
On September 26, 1996, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court approved Comment revisions to Rules 102 (Procedure in Court Cases Initiated by Arrest Without Warrant) and 182 (Conditions of the [ARD] Program) to reference statutes concerning domestic violence cases and restitution. This Final Report explains the revisions.
A. Warrantless Arrests in Domestic Violence Cases: Revision of Comment to Rule 102 (Procedure in Court Cases Initiated by Arrest Without Warrant) to Include a Citation to 18 Pa.C.S. § 2711 and 23 Pa.C.S. § 6113.
The Committee has discussed the issue of warrantless arrests in domestic violence cases on numerous occasions since the enactment of 18 Pa.C.S. § 2711 (Probable cause arrests in domestic violence cases) and 23 Pa.C.S. § 6113 (Arrest for violation of order). Most recently, the Committee reexamined the statutory mandates to determine whether 18 Pa.C.S. § 2711 or 23 Pa.C.S. § 6113 was in conflict with Rule 102 (Procedure in Court Cases Initiated by Arrest Without Warrant), and if so, whether the Committee should recommend that the Court suspend the statutes.
Under 23 Pa.C.S. § 6113(c), a police officer who arrests a defendant for violating a Protection from Abuse order is required to take the defendant before the judge who issued the order, or, if the judge is unavailable, to a designated alternative issuing authority or hearing officer. 23 Pa.C.S. § 6113(c). When a defendant is arrested pursuant to 18 Pa.C.S. § 2711, the arresting officer may not release the defendant from custody, but must take the defendant before the issuing authority for preliminary arraignment and a bail determination. 18 Pa.C.S. § 2711(c)(1), (2).
23 Pa.C.S. § 6113 and 18 Pa.C.S. § 2711, which prohibit the release of a defendant after arrest and therefore remove all police discretion in domestic violence cases, appear to conflict with Pa.R.Crim.P. 102(b), which gives the arresting officer the discretion to release a defendant from custody if certain criteria are met. Pa.R.Crim.P. 102(b)(1)--(5). In view of this apparent conflict, we were especially concerned that the coexistence of Rule 102(b) and the statutes, without explanation, would send a mixed message to police officers dealing with situations that are at best difficult. The Committee therefore has revised the Comment to Rule 102 to reference the statutory requirements for warrantless arrests in domestic violence cases, as follows:
By statute, when a police officer has arrested a defendant in a domestic violence case, the defendant may not be released but must be brought before the issuing authority for preliminary arraignment. See 18 Pa.C.S. § 2711. See also 23 Pa.C.S. § 6113(c) of the Protection from Abuse Act.
B. Restitution in ARD Cases: Revision of Rule 182 Comment to Include a Citation to 42 Pa.C.S. § 9728.
The issue of restitution in ARD cases arose as a result of correspondence which suggested that the two-year limit on ARD programs in Rule 182(b) should be extended so that cases involving large amounts of restitution would qualify. In particular, correspondents observed that in some counties, ARD programs were being extended in order to insure collection of restitution.
After conducting a Statewide survey of District Attorneys and Public Defenders on whether the two-year limit for ARD programs should be extended, the Committee agreed with the majority of the respondents that there was no compelling need to extend the two-year period. The consensus was that extending the ARD period would not, as some respondents had argued, increase the number of cases diverted, because District Attorneys would not change their policies on what types of cases or defendants qualify for ARD. Furthermore, the Committee felt that extending the ARD probationary period so that cases involving large amounts of restitution would qualify--an argument raised by more than one correspondent--was unnecessary because 42 Pa.C.S. § 9728 permits the collection of restitution after the probationary period ends. We are aware, however, that some judges and lawyers have questioned whether section 9728 applies to ARD cases. To clarify this issue, we have added a citation to § 9728 to the Rule 182 Comment.
[Pa.B. Doc. No. 96-1702. Filed for public inspection October 11, 1996, 9:00 a.m.]
