2190 Coverage: issuing warrants; preliminary arraignment and summary trial; and setting and accepting bail

Title 234--RULES OF CRIMINAL PROCEDURE

[234 PA. CODE CHS. 1 AND 5]

Coverage: Issuing Warrants; Preliminary Arraignment and Summary Trial; and Setting and Accepting Bail

[33 Pa.B. 5607]

   The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania adopt new Pa.R.Crim.P. 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail),¹ and amend Pa.Rs.Crim.P. 131 (Location of Proceedings Before Issuing Authority), 132 (Continuous Availability and Temporary Assignment of Issuing Authorities), 525 (Bail Bond), 535 (Receipt for Deposit; Return of Deposit). This proposal addresses the continuous availability of issuing authorities and requires the president judge of each judicial district to ensure sufficient availability of issuing authorities to provide the services required by the Criminal Rules. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.

   The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Report 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 rule changes precedes the Report. Additions are shown in bold, deletions are in bold and brackets.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel,

   Anne T. Panfil, Chief Staff Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
5035 Ritter Road, Suite 800
Mechanicsburg, PA 17055
fax: [phone]
e-mail: [e-mail]

no later than Monday, December 29, 2003.

By the Criminal Procedural Rules Committee

JOHN J. DRISCOLL,   
Chair

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

CHAPTER 1.  SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES

PART A.  BUSINESS OF THE COURTS

   (Editor's Note: Rule 117 is new. It is printed in regular type to enhance readability.)

Rule 117.  Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail.

   (A)  The president judge of each judicial district shall ensure sufficient availability of issuing authorities to provide the services required by the Rules of Criminal Procedure as follows:

   (1)  continuous coverage for the issuance of search warrants pursuant to Rule 203 and arrest warrants pursuant to Rule 513;

   (2)  coverage using one of the systems of coverage set forth in paragraph (B) to:

   (a)  conduct immediate trials or set collateral in summary cases following arrests with a warrant pursuant to Rule 431(D)(1), (2) and following arrests without a warrant pursuant to Rule 441(C);

   (b)  conduct preliminary arraignments without unnecessary delay whenever a warrant of arrest is executed within the judicial district pursuant to Rule 516;

   (c)  set bail without unnecessary delay whenever an out-of-county warrant of arrest is executed within the judicial district pursuant to Rule 517(A);

   (d)  receive complaints and conduct preliminary arraignments without unnecessary delay whenever a case is initiated by an arrest without warrant pursuant to Rule 519(A)(1); and

   (3)  coverage during normal business hours for all other business.

   (B)  The president judge, taking into consideration the rights of the defendant and the judicial district's resources and coverage needs, by local rule promulgated pursuant to Rule 105, shall establish one of the following systems of coverage to provide the services enumerated in paragraph (A)(2):

   (1)  a traditional ''24/7'' on-call system;

   (2)  an ''after-hours court'' or a ''night court'' in a central location, staffed by an on-duty issuing authority and staff;

   (3)  a regional on-call system; or

   (4)  a schedule of specified times for after-hours coverage when the ''duty'' district justice will be either in his or her office or at another location designated by the president judge to conduct business.

   (C)  The president judge of each judicial district, by local rule promulgated pursuant to Rule 105, shall ensure that services are provided pursuant to Rule 520(B) to admit defendants to bail on any day and at any time in any case pending in any magisterial district within the judicial district.

Comment

   By this rule, the Supreme Court is clarifying the responsibility of president judges in supervising their respective judicial districts to ensure compliance with the statewide Rules of Criminal Procedure to prevent the violation of the rights of defendants caused by the lack of availability of the issuing authority. See also Rule 131 (Location of Proceedings Before Issuing Authority) for the president judges' responsibilities concerning location of proceedings.

   Paragraph (A), derived from former Rule 132(A) (Continuous Availability), clarifies that it is the president judge's responsibility to make sure that there are issuing authorities available within his or her judicial district (1) on a ''24/7'' continuous basis to issue search and arrest warrants, paragraph (A)(1); (2) pursuant to one of the systems of coverage enumerated in paragraph (B) to conduct summary trials and preliminary arraignments, and perform related duties, paragraph (A)(2); and (3) during normal business hours to conduct all other business of the minor judiciary, paragraph (A)(3). It is expected that the president judge will continue the established procedures in the judicial district or establish new procedures to ensure sufficient availability of issuing authorities consistent with this paragraph.

   Although the preferred system for coverage to conduct the proceedings enumerated in paragraph (A)(2) is the traditional ''24/7'' on-call system, by providing the three alternate systems of coverage in paragraph (B), this rule recognizes that the preferred system is not always attainable given the geography, judicial resources, and coverage needs in some judicial districts.

   In determining which system of coverage to elect, the president judge must consider the rights of the defendant, see, e.g. Commonwealth v. Duncan, 525 A.2d 1177 (Pa. 1987), and the judicial district's resources and coverage needs, as well as the obligations of the police and attorney for the Commonwealth to ensure the defendant is brought before an issuing authority without unnecessary delay as required by law, see, e.g., Rules 431, 441, 516, 517, and 519, and to obtain statements within the time limits established by law, see, e.g., Commonwealth v. Duncan, supra.

   Advanced communication technology may be used to facilitate providing coverage under paragraph (A). See, e.g., Rules 203, 513, 518, and 540. See also Rule 131 (Location of Proceedings Before Issuing Authority) for the permitted locations when providing coverage under this rule.

   The proceedings enumerated in paragraph (A)(2) include (1) setting bail before verdict pursuant to Rule 520(A) and Rule 540, and either admitting the defendant to bail or committing the defendant to jail, and (2) determining probable cause whenever a defendant is arrested without a warrant pursuant to Rule 540(C).

   Pursuant to paragraph (C), the president judge also is responsible for making sure there is an issuing authority or other designated official available within the judicial district on a ''24/7'' continuous basis to accept bail pursuant to Rule 520(B). The president judge, by local rule, may continue established procedures or establish new procedures for the after-hours acceptance of deposits of bail by an issuing authority, a representative of the office of the clerk of courts, or such other individual designated by the president judge. See Rule 535(A).

   When the president judge designates another official to accept bail deposits, that official's authority is limited under this rule to accepting the bail deposit, and under Rule 525 to releasing the defendant upon execution of the bail bond. Pursuant to Rule 535(A), the official is authorized only to have the defendant execute the bail bond and to deliver the bail deposit and bail bond to the issuing authority or clerk of courts.

   The local rule requirements in paragraphs (B) and (C)(1) ensure there is adequate notice of (a) the system of coverage, thereby providing predictability in the issuing authority's duty schedule, and (b) the official authorized to accept bail, (2) promote the efficient administration of justice, and (3) provide a means for the Supreme Court to monitor the times and manner of coverage in each judicial district.

   The local rules promulgated pursuant to this rule should include other relevant information, such as what are the normal business hours of operation or any special locations designated by the president judge to conduct business, that will assist the defendants, defense counsel, attorneys for the Commonwealth, police, and members of the public.

   Concerning other requirements for ''24/7'' continuous coverage by issuing authorities in Protection from Abuse Act cases, see 23 Pa.C.S. § 6110 and Pa.R.C.P.D.J. 1203.

   Official Note:  Former Rule 117 adopted September 20, 2002, effective January 1, 2003; renumbered Rule 118 ____ , 2004, effective ____ , 2004. New Rule 117 adopted ____ , 2004, effective ____ , 2004.

COMMITTEE EXPLANATORY REPORTS:

   Report explaining new Rule 117 published at 33 Pa.B. 5613 (November 15, 2003).

Rule [117] 118. Court Fees Prohibited for Two-Way Simultaneous Audio-Visual Communication.

[NO CHANGES IN THE TEXT OR COMMENT.]

   Official Note:  New Rule 117 adopted September 20, 2002, effective January 1, 2003; renumbered Rule 118 ____ , 2004, effective ____ , 2004.

COMMITTEE EXPLANATORY REPORTS:

   Final Report explaining new Rule 117 published with the Court's Order at 32 Pa.B. 4815 (October 5, 2002.)

   Report explaining the renumbering of Rule 117 as Rule 118 published at 33 Pa.B. 5613 (November 15, 2003).

Rule [118] 119. Use of Two-Way Simultaneous Audio-Visual Communication in Criminal Proceedings.

[NO CHANGES IN THE TEXT OR COMMENT.]

   Official Note:  New Rule 118 adopted August 7, 2003, effective September 1, 2003; renumbered Rule 119 ____ , 2004, ____ effective ____ , 2004.

COMMITTEE EXPLANATORY REPORTS:

   Final Report explaining new Rule 118 published with the Court's Order at 33 Pa.B. 830 (August 30, 2003).

   Report explaining the renumbering of Rule 118 as Rule 119 published at 33 Pa.B. 5613 (November 15, 2003).

PART C. Venue, Location, and Recording of Proceedings Before Issuing Authority

Rule 131.  Location of Proceedings Before Issuing Authority.

   (A)  An issuing authority within the magisterial district for which he or she is elected or appointed shall have jurisdiction and authority [at all times] to receive complaints, issue warrants, hold preliminary arraignments, set and receive bail, issue commitments to jail, and hold hearings and summary trials.

   (1)  Except as provided in paragraph (A)(2), all preliminary arraignments shall be held in the issuing authority's established office, a night court, or some other facility within the Commonwealth designated by the president judge, or the president judge's designee.

   (2)  Preliminary arraignments may be conducted using advanced communication technology pursuant to Rule 540. The preliminary arraignment in these cases may be conducted from any site within the Commonwealth designated by the president judge, or the president judge's designee.

   (3)  All hearings and summary trials before the issuing authority shall be held publicly at the issuing authority's established office. For reasons of emergency, security, size, or in the interests of justice, the president judge, or the president judge's designee, may order that a hearing or hearings, or a trial or trials, be held in another more suitable location within the judicial district.

   (4)  The issuing authority may receive complaints, issue warrants, set and receive bail, and issue commitments to jail from any location within the judicial district, or from an advanced communication technology site within the Commonwealth.

   (B)  When local conditions require, the president judge may establish procedures for preliminary hearings or summary trials, in all cases or in certain classes of cases, to be held at a central place or places within the judicial district at certain specified times. The procedures established shall provide either for the transfer of the case or the transfer of the issuing authority to the designated central place as the needs of justice and efficient administration require.

Comment

   The 2002 amendments to paragraph (A) divided the paragraph into subparagraphs to more clearly distinguish between the locations for the different types of proceedings and business that an issuing authority conducts.

   Paragraph (A)(3) permits the president judge, or the president judge's designee, to order that a hearing or hearings be held in a location that is different from the issuing authority's established office. Nothing in this rule is intended to preclude the president judge, or the president judge's designee, from issuing a standing order for a change in location. For example, this might be done when a state correctional institution is located in the judicial district and the president judge determines that, for security reasons, all preliminary hearings of the state correctional institution's inmates will be conducted at that prison.

   See Rule 540 and Comment for the procedures governing the use of advanced communication technology in preliminary arraignments.

   See Rule 130 concerning the venue when proceedings are conducted by using advanced communication technology.

   Paragraph (B) of this rule is intended to facilitate compliance with the requirement that defendants be represented by counsel at the preliminary hearing. Coleman v. Alabama, 399 U.S. 1[, 90 S.Ct. 1999] (1970).

   Paragraph (A)(4) permits issuing authorities to perform their official duties from an advanced communication technology site within the Commonwealth. The site may be located outside the magisterial district or judicial district where the issuing authority presides.

   This rule allows the president judge of a judicial district the discretion to determine what classes of cases require centralized preliminary hearings or summary trials, and requires the president judge, or the president judge's designee, to establish a schedule of central places within the Commonwealth to conduct such hearings or summary trials, and the hours for the hearings or trials at the central locations.

   Ideally, this rule should minimize the inconvenience to defense counsel and the attorney for the Commonwealth by eliminating the necessity of travel at various unpredictable times to many different locations throughout the judicial district for the purpose of attending preliminary hearings or summary trials. Finally, this rule allows preliminary hearings or summary trials for jailed defendants to be held at a location close to the place of detention.

   Official Note:  Formerly Rule 156, paragraph (a) adopted January 16, 1970, effective immediately; paragraph (a) amended and paragraph (b) adopted November 22, 1971, effective immediately; renumbered Rule 22 September 18, 1973, effective January 1, 1974; renumbered Rule 131 and amended March 1, 2000, effective April 1, 2001; amended March 12, 2002, effective July 1, 2002; amended May 10, 2002, effective September 1, 2002; amended ____ , 2004, effective ____ , 2004.

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 March 12, 2002 amendments concerning centralized courts for summary trials published with the Court's Order at 32 Pa.B. 1630 (March 30, 2002).

   Final Report explaining the May 10, 2002 amendments concerning advanced communication technology published with the Court's Order at 32 Pa. B. 2591 (May 25, 2002).

   Report explaining the proposed deletion in paragraph (A) of ''at all times'' published at 33 Pa. B. 5613 (November 15, 2003).

Rule 132.  [Continuous Availability and] Temporary Assignment of Issuing Authorities.

   [(A)  Continuous Availability

   (1)  The president judge of each judicial district shall be responsible for ensuring the availability at all times within the judicial district of at least one issuing authority.

   (2)  The issuing authority assigned to be on duty after business hours shall set bail as provided in Chapter 5 Part C, and shall accept deposits of bail in any case pending in any magisterial district within the judicial district.

   (B)  Temporary Assignment

   (1)]  (A)  The president judge may assign temporarily the issuing authority of any magisterial district to serve another magisterial district whenever such assignment is needed:

   [(a)]  (1)  to satisfy the requirements of [paragraph (A)(1)] Rule 117;

   [(b)]  (2)  to insure fair and impartial proceedings;

   [(c)]  (3)  to conduct a preliminary hearing pursuant to Rule 544(B); or

   [(d)]  (4)  otherwise for the efficient administration of justice.

   One or more issuing authorities may be so assigned to serve one or more magisterial districts.

   [(2)]  (B)  Whenever a temporary assignment is made under this rule, notice of such assignment shall be filed with the clerk of courts where it shall be available for police agencies and other interested persons.

   [(3)]  (C) A motion may be filed requesting a temporary assignment under [paragraph (B)(1)] this rule on the ground that the assignment is needed to insure fair and impartial proceedings. Reasonable notice and opportunity to respond shall be provided to the parties.

   [(4)]  (D)  A motion shall be filed requesting a temporary assignment under paragraph [(B)(1)(c)] (A)(3) whenever the attorney for the Commonwealth elects to proceed under Rule 544(B) following the refiling of a complaint.

Comment

   This rule is intended to impose the responsibility on the president judge to prevent the violation of the rights of defendants caused by the lack of availability of the issuing authority.

   [Paragraph (A)(2) requires an issuing authority on duty after business hours to set bail, as provided by law, and to accept deposits of bail in any case pending in any magisterial district within the judicial district, so that a ''defendant may be admitted to bail on any date and at any time.'' Rule 520(B).

   Nothing in this rule is intended to preclude judicial districts from continuing established procedures or establishing new procedures for the after-hours acceptance of deposits of bail by a representative of the clerk of courts' office.]

   The provisions of former paragraph (A) (Continuous Availability) were incorporated into new Rule 117 in 2004.

   Paragraphs [(B)(1)(b)] (A)(2) and [(3)] (C) make explicit the authority of president judges to assign issuing authorities when necessary to insure fair and impartial proceedings, and to provide a procedure for a party to request such an assignment. Temporary assignment in this situation is intended to cover what might otherwise be referred to as ''change of venue'' at the district justice level. See, e.g., Sufrich v. Commonwealth, 447 A.2d 1124 (Pa. Cmwlth. 1982).

   The motion procedure of paragraph [(B)(3)] (C) is intended to apply when a party requests temporary assignment to insure fair and impartial proceedings. The president judge may, of course, order a response and schedule a hearing with regard to such a motion. However, this paragraph is not intended to require ''a formal hearing . . . beyond the narrow context of a motion for temporary assignment of issuing authority to insure fair and impartial proceedings predicated upon allegations which impugn the character or competence of the assigned issuing authority and which seek the recusal of the assigned issuing authority.'' See Commonwealth v. Allem, 532 A.2d 845 (Pa. Super. 1987) (filing and service of the written motion and answer, and allowance of oral argument were more than adequate to meet the rule's requirements).

   Paragraphs [(B)(1)(c)] (A)(3) and [(4)] (D) govern those situations in which the attorney for the Commonwealth, after refiling the complaint following the withdrawal or dismissal of any criminal charges at, or prior to, a preliminary hearing, determines that the preliminary hearing should be conducted by a different issuing authority. See also Rule 544 (Reinstituting Charges Following Withdrawal or Dismissal). Under Rule 544, the president judge may designate another judge within the judicial district to handle reassignments.

   The motion procedure is not intended to apply in any of the many other situations in which president judges make temporary assignments of issuing authorities; in all these other situations the president judges may make temporary assignments on their own without any motion, notice, response, or hearing.

   Official Note:  Formerly Rule 152, adopted January 16, 1970, effective immediately; amended and renumbered Rule 23 September 18, 1973, effective January 1, 1974; amended October 21, 1983, effective January 1, 1984; amended February 27, 1995, effective July 1, 1995; amended October 8, 1999, effective January 1, 2000; renumbered Rule 132 and amended March 1, 2000, effective April 1, 2001; amended ____ , 2004, effective ____ , 2004.

COMMITTEE EXPLANATORY REPORTS:

   Final Report explaining the February 27, 1995 amendments published with the Court's Order at 25 Pa.B. 936 (March 18, 1995).

   Final Report explaining the October 8, 1999 amendments concerning motions for temporary assignment of issuing authority following the reinstitution of criminal charges published with the Court's Order at 29 Pa.B. 5509 (October 23, 1999).

   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).

   Report explaining proposed changes to the rule correlative to the changes in proposed new Rule 117 published at 33 Pa.B. 5613 (November 15, 2003).

CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES

PART C(1).  Release Procedures

Rule 525. Bail Bond.

   (A)  A bail bond is a document executed by a defendant, and, when applicable, one or more sureties, whereby the defendant agrees that while at liberty after being released on bail, he or she will appear at all subsequent proceedings as required and comply with all the conditions of the bail bond.

   (B)  The bail bond shall set forth the type or combination of types of release, the conditions of release ordered by the bail authority, the conditions of the bail bond set forth in Rule 526(A), and the consequences of failing to appear or failing to comply with all the conditions of the bail bond.

   (C)  At the time the bail is set, the bail authority shall prepare the bail bond. If the defendant is unable to post bail, when the bail authority commits the defendant to jail, he or she shall send the unexecuted bail bond and the other necessary paperwork with the defendant to the place of incarceration.

   [(C)]  (D)  The defendant shall not be released until he or she executes the bail bond.

   [(D)]  (E)  A copy of the bail bond shall be given to the defendant, and the original shall be included in the record.

Comment

   For the types of release and the conditions of release, see Rule 524.

   For some of the consequences when a defendant fails to appear or fails to comply as required, see the Crimes Code, 18 Pa.C.S. § 5124. See also Rule 536.

   The form of the bail bond was deleted from the bail rules in 1985 with the expectation that the Court Administrator of Pennsylvania will continue to design and publish such forms pursuant to Rule 104.

   Official Note:  Former Rule 4004 adopted July 23, 1973, effective 60 days hence, replacing prior Rule 4005; rescinded September 13, 1995, effective January 1, 1996, and replaced by Rule 4002. Present Rule 4004 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective [date] dates extended to July 1, 1996; renumbered Rule 525 and amended March 1, 2000, effective April 1, 2001; amended ____ , 2004, effective ____ , 2004.

COMMITTEE EXPLANATORY REPORTS:

   Final Report explaining the provisions of the new rule published with Court's Order at 25 Pa.B. 4116 (September 30, 1995).

   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).

   Report explaining the proposed addition of new paragraph (C) concerning the bail authority's responsibility to prepare the bail bond published at 33 Pa.B. 5613 (November 15, 2003).

PART C(2).  General Procedures in all Bail Cases

Rule 535.  Receipt for Deposit; Return of Deposit.

   [(A)  The issuing authority or the clerk of courts who accepts a deposit of cash in satisfaction of a monetary condition of bail shall give the depositor an itemized receipt, and shall note on the transcript or docket and the bail bond the amount deposited and the name of the person who made the deposit.]

   (A)  Any deposit of cash in satisfaction of a monetary condition of bail shall be given to the issuing authority, the clerk of courts, or another official designated by the president judge by local rule pursuant to Rule 117(B). The issuing authority, clerk, or other official who accepts the deposit shall give the depositor an itemized receipt, and shall note on the bail bond the amount deposited and the name of the person who made the deposit. The defendant shall execute the bail bond, and be given a copy of the executed bail bond.

   (1)  When the issuing authority accepts [such] a deposit of bail, the issuing authority shall note on the docket transcript the amount deposited and the name of the person who made the deposit. The issuing authority shall have the deposit, the docket transcript, and a copy of the bail bond [shall be] delivered to the clerk of courts.

   (2)  When another official is designated by the president judge to accept a bail deposit, that official shall deliver the deposit and the bail bond to either the issuing authority, who shall proceed as provided in paragraph (A)(1), or the clerk of courts, who shall proceed as provided in paragraph (A)(3).

   (3)  When the clerk of courts accepts the deposit, the clerk shall note on the docket the amount deposited and the name of the person who made the deposit, and shall place the bond in the criminal case file.

   (B)  When the deposit is the percentage cash bail authorized by Rule 528, the depositor shall be notified that by signing the bail bond, the depositor becomes a surety for the defendant and is liable for the full amount of the monetary condition in the event the defendant fails to appear or comply as required by these rules.

   (C)  The clerk of courts shall place all cash bail deposits in a bank or other depository approved by the court and shall keep records of all deposits.

   (D)  Within 20 days of the full and final disposition of the case, the deposit shall be returned to the depositor, less any bail-related fees or commissions authorized by law, and the reasonable costs, if any, of administering the percentage cash bail program.

   (E)  When a case is transferred pursuant to Rule 130(B) or Rule 555, the full deposit shall be promptly forwarded to the transfer judicial district, together with any bail-related fees, commissions, or costs paid by the depositor.

Comment

   This rule is not intended to change current practice.

   When the president judge has designated another official to accept the bail deposit as provided in Rule 117, the other official's authority under Rule 117 and this rule is limited to accepting the deposit, having the defendant execute the bail bond, releasing the defendant, and delivering the bail deposit and bail bond to the issuing authority or the clerk of courts.

   A deposit of cash to satisfy a defendant's monetary bail condition that is made by a person acting as a surety for the defendant may not be retained to pay for the defendant's court costs and/or fines. See Commonwealth v. McDonald, 382 A.2d 124 (Pa. 1978).

   Paragraph (B) requires the issuing authority or the clerk of courts who accepts a percentage cash bail deposit to explain to the person who deposits the money the consequences of acting as a surety. There will be cases in which a person merely deposits the money for the defendant to post, and is not acting as the defendant's surety. In this situation, the defendant is the depositor and should receive the receipt pursuant to paragraph (A). See Rule 528.

   When cash bail that is deposited in a bank pursuant to paragraph (C) is retained by a county in an interest-bearing account, case law provides that the county retains the earned interest. See Crum v. Burd, 571 A.2d 1 (Pa. Commw. 1989), allocatur denied 581 A.2d 574 (Pa. 1990).

   The full and final disposition of a case includes all avenues of direct appeal in the state courts. Therefore, the return of any deposits would not be required until after either the expiration of the appeal period or, if an appeal is taken, after disposition of the appeal. See Rule 534.

   Any fees, commissions, or costs assessed pursuant to paragraph (D) must be reasonably related to the county's actual bail administration costs. Each county should establish local procedures to ensure adequate notice and uniform application of such fees, commissions, or costs. See, e.g., Buckland v. County of Montgomery, 812 F.2d 146 (3rd Cir. 1987).

   When a case is transferred pursuant to Rules 130(B) and 555, paragraph (E) and Rules 130(B) and 555 require that any bail-related fees, commissions, or costs collected pursuant to paragraph (D) be forwarded to the transfer judicial district. Fees, commissions, or costs that have been assessed but not paid at the time of transfer may not be collected in the transferring judicial district.

   When bail is terminated upon acceptance of the defendant into an ARD program, such action constitutes a ''full and final disposition'' for purposes of this rule and Rule 534 (Duration of Obligation). See Rule 313.

   Official Note:  Former Rule 4015, previously Rule 4009, adopted November 22, 1965, effective June 1, 1966; renumbered Rule 4015, former paragraph (b) integrated into paragraph (a) and new paragraph (b) adopted July 23, 1973, effective 60 days hence; rescinded September 13, 1995, effective January 1, 1996, and replaced by present Rule 4015. Present Rule 4015 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 535 and amended March 1, 2000, effective April 1, 2001; amended April 20, 2000, effective July 1, 2000; amended ____ , 2004, effective ____ , 2004.

COMMITTEE EXPLANATORY REPORTS:

   Final Report explaining the provisions of the new rule published with Court's Order at 25 Pa.B. 4116 (September 30, 1995).

   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 new paragraph (E) concerning the interplay with Rules [21]130(B) and [300] 555 published with Court's Order at 30 Pa.B. 2219 (May 6, 2000).

   Report explaining the proposed changes to the rule correlative to the changes in proposed new Rule 117 published at 33 Pa.B. 5613 (November 15, 2003).

REPORT

Proposed new Pa.R.Crim.P. 117, Correlative Amendments to Pa.Rs.Crim.P. 131, 132, 525, and 535, Renumbering Rule 117 as Rule 118 and Rule 118 as Rule 119

COVERAGE: ISSUING WARRANTS; PRELIMINARY ARRAIGNMENT AND SUMMARY TRIAL; AND SETTING AND ACCEPTING BAIL

I.  INTRODUCTION

   The Criminal Procedural Rules Committee is proposing new Pa.R.Crim.P. 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail), correlative amendments to Pa.Rs.Crim.P. 131 (Location of Proceedings Before Issuing Authority), 132 (Continuous Availability and Temporary Assignment of Issuing Authorities), 525 (Bail Bond), 535 (Receipt for Deposit; Return of Deposit), and the renumbering of current Rule 117 as Rule 118 and current Rule 118 as Rule 119. As explained more fully in the following background discussion, this proposal is the culmination of several years of work by

   *  the Criminal Procedural Rules Committee (the Rules Committee)

   *  the Special Courts Administration Subcommittee of the Supreme Court's Intergovernmental Task Force to Study the District Justice System (the Subcommittee)

   *  the Supreme Court's District Justice Task Force Ad Hoc Committee (the Ad Hoc Committee) and

   *  a joint Subcommittee of Criminal Procedural Rules Committee members and District Justice Task Force Ad Hoc Committee members (the Joint Subcommittee).

   Through each of these groups, we learned there are problems encountered in various judicial districts in satisfying the Rule 132 requirements that (1) the president judge of each judicial district must ensure the availability at all times within the judicial district of at least one issuing authority, paragraph (A)(1), and (2) the issuing authority assigned to be on duty after business hours shall set bail and shall accept deposits of bail in any case pending in any magisterial district within the judicial district. The members of both the Rules Committee and the Ad Hoc Committee agree the proposal provides a workable resolution that is fair and equitable for defendants and issuing authorities specifically, and the bench, bar, law enforcement, and the public generally.

II.  BACKGROUND

   For a number of years, most recently in 2001, the Rules Committee, pursuant to Rule 105 (Local Rules), has been reviewing local rules that have limited the night time and weekend availability of issuing authorities. We learned from this review, in most cases, the president judges are implementing these local rules to accommodate specific problems within their judicial districts, such as geography,² unavailability of one or more district justices in their judicial districts,³ and limited police resources.⁴ Although the Rules Committee thought these local rules may have some merit, we were concerned because the local rules conflicted with the requirements of paragraphs (A)(1) and (A)(2) of Rule 132 (Continuous Availability and Temporary Assignment of Issuing Authorities). Nonetheless, after consulting with the president judges who had promulgated the local rules, we initiated a review of possible means to address their problems and concerns.

   As the Rules Committee was considering this matter, on November 1, 2001, the Court's Intergovernmental Task Force to Study the District Justice System released the Report of the Special Courts Administration Subcommittee.⁵ One of the issues the Court directed the Subcommittee to address was night and weekend duty coverage.⁶ After completing its review, the Subcommittee recommended to the Court that changes be implemented that would provide a menu of coverage options from which president judges could choose in order to provide the required coverage, based on the after-hours responsibilities of district justices required by rule, case law, and statute, and the types of things for which a district justice is typically called out to handle.

   Following the release of the Task Force's Report, the Court appointed the Ad Hoc Committee to develop implementation strategies for specific recommendations contained in the Task Force's Report, including the recommendation about night and weekend duty coverage. The Ad Hoc Committee met several times during 2002, and developed a draft of proposed changes to the Rule 132 Comment providing for the president judges a suggested menu of coverage options to use in meeting the Rule 132 requirements based on the needs of their respective judicial districts. The Supreme Court asked the Rules Committee to review this proposal and directed both Committees to work together on this matter. In late 2002, the Joint Subcommittee was convened to come up with a proposal that would incorporate the respective views of the Rules Committee, the Subcommittee, and the Ad Hoc Committee.

   The Joint Subcommittee debated at length the merits of the Ad Hoc Committee's proposal for a Rule 132 Comment revision and the Rules Committee's suggestions for changes to Rule 132, and eventually settled on a compromise that the members agreed provides some flexibility to the president judges in determining the manner of coverage for their respective judicial districts, is fair to the defendants and the issuing authorities, and provides a mechanism for the Supreme Court to continue to monitor the various systems of coverage. The Joint Subcommittee submitted its recommendation to the Rules Committee in March 2003.

   At several meetings, the Rules Committee reviewed the Joint Subcommittee's recommendation, as well as the Report of the Special Courts Administration Subcommittee of the Court's Intergovernmental Task Force to Study the District Justice System and the Ad Hoc Committee's proposal. Using the Joint Subcommittee's recommendation as the starting point, the Rules Committee developed this proposal, which encompasses the goals of the Joint Subcommittee's recommendation, and (1) will alleviate the concerns that any changes to the continuous availability requirements will lead to abuses in the methods of coverage within the judicial districts and denials of the defendants' rights to a prompt preliminary arraignment, (2) provides clear guidance to the president judges and district justices who have been struggling to comply with present Rule 132, giving president judges reasonable options and flexibility for providing the required coverage without unduly burdening the district justices or the judicial districts while encouraging ''24/7'' continuous coverage with the preference that the president judges continue current night courts and on-call systems, and (3) satisfies the directive from the Supreme Court to address night and weekend coverage.

III.  DISCUSSION

   Because the problems with providing coverage by issuing authorities identified by the Subcommittee and the Ad Hoc Committee stem from the Rule 132(A) requirements, the Rules Committee began its analysis with Rule 132. We agreed the continuous availability provisions of Rule 132 raise two issues: (1) whether available ''at all times'' in paragraph (A)(1) means ''24 x 7'' availability in all cases; and (2) whether the requirement in paragraph (A)(2) means that issuing authorities must be the individuals who are to accept after-hour deposits of monetary bail. In order to understand the application of the availability requirement, the Rules Committee, as did the Subcommittee and the Ad Hoc Committee,⁷ looked to the Criminal Rules themselves, to the extent that the specific rules address when an issuing authority must be available. We noted the rules requiring coverage break down into several categories:

   *  Rules requiring continuous or ''24/7'' availability of an issuing authority

   *  Rules requiring availability outside normal business hours

   *  Rules requiring availability during official business hours

   *  Rules requiring continuous or ''24/7'' availability of a court official

   (1)  Rules requiring continuous or ''24/7'' availability of an issuing authority.

   We identified two rules that come within this category, Rules 203 (Requirements for Issuance)--search warrants--and 513 (Requirements of Issuance)--arrest warrants.⁸ Although there is no specific provision in either rule for when an issuing authority must be available to issue warrants, the consensus is that an issuing authority must be available whenever a search or arrest warrant is requested.

   (2)  Rules requiring availability outside normal business hours.

   The rules in this category all affect the amount of time a defendant is detained,⁹ requiring the issuing authority to conduct an immediate trial or a preliminary arraignment¹⁰ without unnecessary delay or set collateral or bail. Included in the category are Rule 431(D)(1), (2) (Procedure When Defendant Arrested with Warrant) and Rule 441(C) (Procedure Following Arrest without Warrant), which require immediate trials or that collateral be set in summary cases following an arrest; Rule 516 (Procedure in Court Cases When Warrant of Arrest is Executed Within Judicial District of Issuance), which requires the issuing authority to conduct a preliminary arraignment without unnecessary delay following execution of an arrest warrant within the county; Rule 517(A) (Procedure in Court Cases When Warrant of Arrest is Executed Outside Judicial District of Issuance), which requires the issuing authority to set bail without unnecessary delay following execution of an arrest warrant outside the county;¹¹ and Rule 519(A)(1) (Procedure in Court Cases Initiated by Arrest Without Warrant), which requires the issuing authority to receive complaints and conduct a preliminary arraignment without unnecessary delay following an arrest without a warrant.

   (3)  Rules requiring availability during official business hours.

   The rules in this category require the issuing authorities to perform the functions of the office of the issuing authority but do not have the same impact on a defendant's liberty as the rules in category (2), and therefore these duties ordinarily will be performed during the normal business hours of the issuing authority's office. The list of rules is extensive, but examples include Rules 456 (Default Procedures: Restitution, Fines, and Costs), which requires the issuing authority to conduct an immediate default hearing or set bail whenever a defendant appears pursuant to a 10-day notice or is arrested on a warrant for failure to pay costs and fines in a summary case, and 430 (Issuance of Arrest Warrant), which provides the procedures for issuing arrest warrants in summary cases.

   (4)  Rules requiring continuous or ''24/7'' availability of a court official

   A related category of coverage covers any rules that affect the defendant's liberty and therefore require the availability on a continuous or ''24/7'' basis by a court official, but not necessarily the issuing authority. Rule 520 (Bail Before Verdict) fits in this category because it requires that a defendant to be admitted to bail on any day and at any time, but does not specifically require that it be an issuing authority who accepts the bail deposit.

   From our discussions about these rules and Rule 132(A), and the input we received from district justices and judges, the Rules Committee realized there is a great deal of confusion about how the Rule 132(A) continuous availability requirements applies to the different rules. The members agreed the confusion could be eliminated, and the rule would provide more guidance to the bench and bar in determining the issuing authorities' responsibilities, and would be helpful from an administrative perspective, if the rule governing the availability of issuing authorities was broken down into the categories we enumerate above. We also thought the issue of continuous availability and the rule categorization would be easier to understand if the provisions are in a separate rule.

   In addition, Rule 132 is a rule specifically for issuing authorities,¹² and with the inclusion of a category of rules applicable to more than issuing authorities, it makes sense to have a separate rule in the general business of the courts section, Chapter 1 Part A. The Rules Committee therefore is proposing the availability/coverage provisions in Rule 132(A) be moved into a separate new rule, new Rule 117.¹³ The title for this new rule, ''Coverage: Issuance of Warrants; Summary Trials and Preliminary Arraignments; Acceptance of Bail,'' reflects the categories we identified and uses a new term, ''coverage,'' to describe more generally the concept of someone being available to conduct the court's business.

A.  Proposed New Rule 117

   Proposed new Rule 117 retains the provisions from Rule 132(A) that place on the president judges the responsibility for ensuring that the coverage needs of the judicial district are met. Paragraph (A) enumerates the coverage requirements for issuing authorities, separating the requirements into the three categories we identified above: (1) continuous, or ''24/7,'' coverage by issuing authorities to handle search warrants and arrest warrants, paragraph (A)(1); (2) one of the systems of coverage provided in the rule to conduct summary trials and preliminary arraignments following arrests,¹⁴ set collateral or bail, and accept complaints, paragraph (A)(2); and (3) for all other matters handled by the issuing authorities, coverage during normal business hours, paragraph (A)(3).

   Paragraph (B) sets forth the only systems of coverage that a president judge may chose from for the conduct of the proceedings enumerated in paragraph (A)(2).¹⁵ The president judge is given the responsibility to select the system that works best in his or her judicial district. The rule makes it clear that the president judge must consider the rights of the defendant and the judicial resources and the needs of the judicial district in making this selection. Paragraph (B) also requires the president judge to promulgate a local rule pursuant to Rule 105 to enact the selected system of coverage.

   The Comment provides a gloss on the provisions of paragraph (B), noting the preference for the traditional ''24/7'' on-call system, and emphasizing the importance of balancing the rights of the defendant with the judicial districts' resources and coverage needs, and the obligations of the prosecution. Also included in this portion of the Comment are references to the statewide rule requirements for prompt proceedings and the case law on confessions to alert the president judges to the importance of these issues when establishing a system of coverage.

   Paragraph (C) addresses the members' conclusion that Rule 520 does not require that the district justice personally handle the proffer of the bond or other security by requiring the president judge to promulgate a local rule that provides for the continuous, or ''24/7,'' coverage by the individual or individuals designated to accept bail pursuant to Rule 520(B). The Comment explains that the designate individual does not have to be limited to an issuing authority or an employee of the clerk of courts, and includes a cross-reference to Rule 535(A). See discussion below of the correlative amendments.

   The Comment includes several other provisions.¹⁶ As noted in the fifth paragraph, the president judges are encouraged to use advanced communication technology to facilitate providing the coverage required by paragraph (A).

   The ninth and tenth paragraphs highlight the importance and purpose of the local rule requirements in paragraphs (B) and (C), explaining in the ninth paragraph that the properly promulgated local rules ensure the designation information is published and readily available to members of the bench, bar, and public, and provide the means for the Committee and the Court to monitor the systems of coverage. The tenth paragraph recommends the president judges include in these local rules other relevant information such as the normal business hours of the issuing authorities or special locations that have been designated, which provides adequate and easily accessible notice of this information.

   Included as the last paragraph of the Comment is a reference to the continuous coverage requirements for issuing authorities to handle emergency petitions under the Protection from Abuse Act, 23 Pa.C.S. § 6110, and the Rule of Civil Procedure Governing Actions and Proceedings before District Justices 1203.

B.  Correlative Changes

   The Rules Committee is proposing a number of correlative changes to accommodate the procedures in new Rule 117(C).

   (1)  Rule 131

   The Rules Committee is proposing that (1) the phrase ''at all times'' be deleted from Rule 131(A) to avoid any possible misconstruction that this language in some way overrides what is provided in new Rule 117, and (2) a cross-reference to Rule 131 be included in the Rule 117 Comment.

   (2)  Rule 132

   Rule 132(A) has been deleted since this is now covered in new Rule 117, and the title changed by deleting ''continuous availability and.'' In addition, the provisions in the Comment addressing paragraph (A) have been deleted.

   (3)  Rule 525

   The Rules Committee is proposing amendments to Rule 525 that require the issuing authority to prepare the bail bond at the time bail is set and, if the defendant is unable to post bail, the issuing authority is directed to send the unexecuted bail bond with the defendant to the jail.

   (4)  Rule 535

   The proposed amendments to Rule 535 make it clear bail can be accepted by the issuing authority, the clerk of courts, or another official designated by the president judge. Paragraph (A) has been divided into subparagraphs setting forth the procedures applicable to the acceptance of bail deposits by the issuing authority, the clerk of courts, and the other official designated by the president judge. Paragraphs (A)(1) and (3) are taken from current paragraph (A). Paragraph (A)(2) is new and requires the other official to deliver the deposit and bail bond to the issuing authority or the clerk of courts to ensure proper processing of the bail deposit.

[Pa.B. Doc. No. 03-2190. Filed for public inspection November 14, 2003, 9:00 a.m.]

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¹  To accommodate new Rule 117, current Rule 117 would be renumbered Rule 118 and current Rule 118 would be renumbered Rule 119.

²  For example, some judicial districts are rural, with many mountainous roads that are difficult to traverse during the winter months, making the transport of defendants at night to the on-call district justice unsafe and difficult for the police.

³  For example, in the less populated judicial districts, there are many fewer district justices to provide coverage, and when the one on-call district justice is located at the opposite end of the judicial district from the location of an arrest, the defendant and police can face travel times as long as 2 or 3 hours. In addition, when one district justice is ill and another on vacation, the remaining district justice ends up being on-call 24 hours a day for a week or two at a time, making it difficult for the district justice to properly perform his or her duties.

⁴  For example, in the less populated judicial districts and the multi-county judicial districts, where the on-call duty magistrate could be located one or two hours away from the municipality where the offense occurred, when the municipality has only one or two police officers on duty, taking one away to transport the defendant before the duty district justice puts a significant strain on the limited police resources.

⁵  The Task Force's Report may be viewed on Supreme Court's web site at www.courts.state.pa.us.

⁶  The Court, in its directives to the Intergovernmental Task Force to Study the District Justice System, has acknowledged there is need for some procedural changes in providing for after-hours coverage to alleviate some of the burdens on district justices and the strains on the judicial system encountered in some of the judicial districts while continuing to protect the rights of the defendants. The Court's directive was interpreted as suggesting that a relaxation of the ''24/7'' system would not be inappropriate as long as the changes are consistent with the rules and law. See the Report of the Special Courts Administration Subcommittee of the Court's Intergovernmental Task Force to Study the District Justice System, which enumerates the issues the District Justice Task Force Ad Hoc Committee was to address.

⁷  See, e.g., page 35 of the Report of the Special Courts Administration Subcommittee of the Court's Intergovernmental Task Force to Study the District Justice System.

⁸  The Rules Committee also noted that, although not a Criminal Rule, disposition of emergency Protection From Abuse petitions, 23 Pa.C.S. § 6101 et seq., is another proceeding that necessitates continuous or ''24/7'' availability by an issuing authority.

⁹  The interrelationship between the case law concerning the ''six-hour rule,'' see, e.g., Commonwealth v. Futch, 290 A.2d 417 (Pa. 1972), Commonwealth v. Davenport, 370 A.2d 301 (Pa. 1977), and Commonwealth v. Duncan, 525 A.2d 1177 (Pa. 1987), and the Criminal Rules requiring a prompt preliminary arraignment has been a source of debate throughout the time the issue of the continuous availability of issuing authorities has been under consideration. Some people maintain that since the courts have eroded the ''six-hour'' rule the case law no longer implicates the prompt preliminary arraignment rules. Others thought because the case law holds the ''six hour rule'' relates to the time between arrest and the time the defendant gives a statement, this provides flexibility in the amount of time that is permissible between arrest and preliminary arraignment, and therefore issuing authorities do not need to be continuously available to conduct preliminary arraignments. Still others point out that, notwithstanding the case law application of the ''six-hour rule,'' there are numerous policy reasons why the Court would want an issuing authority continuously available to conduct preliminary arraignments that have nothing to do with the six-hour rule, see, e.g., Duncan, supra. Ultimately, the Rules Committee concluded proposed new Rule 117 with a clarification in the Comment adequately covers the procedural aspects of the issue without the need to address the debate.

¹⁰  See also Rule 540 (Preliminary Arraignment), which permits an issuing authority to conduct the preliminary arraignment using two-way simultaneous audio-visual communication.

¹¹  Rule 518 authorizes the use of advanced communication technology for a preliminary arraignment or posting of bail when the warrant in executed outside the judicial district.

¹²  Rule 132 is located in Chapter 1 Part C (Issuing Authorities, Venue, Location, and Recording of Proceedings).

¹³  To accommodate new Rule 117, current Rule 117 would be renumbered Rule 118, and current Rule 118 would be renumbered Rule 119.

¹⁴  At the preliminary arraignment, the issuing authority is required to set bail and if not previously done, to make a probable cause determination. These duties also are contemplated within the requirements of paragraph (A)(2), as explained in the Comment.

¹⁵  The systems of coverage permitted in paragraph (B) are similar to the menu of options proposed by the Subcommittee in its Report to the Court. See page 34 et seq. of the Report of the Special Courts Administration Subcommittee of the Court's Intergovernmental Task Force to Study the District Justice System.

¹⁶  The Comment is lengthy: The detail is necessary because new Rule 117 provides a significant change from what has been the rule for coverage by issuing authorities for at least 30 years. In addition, this area of law has been the source of so much confusion and debate. The Rules Committee believes providing the bench and bar with as much guidance as possible will aid in the smooth transition to the new procedures.