242 Order amending rules 542, 543, 1001, and 1003 of the rules of criminal procedure; no. 398 criminal procedural rules doc.?

Title 234—RULES OF CRIMINAL PROCEDURE

[ 234 PA. CODE CHS. 5 AND 10 ]

Order Amending Rules 542, 543, 1001, and 1003 of the Rules of Criminal Procedure; No. 398 Criminal Procedural Rules Doc.

[41 Pa.B. 834]
[Saturday, February 12, 2011]

Order

Per Curiam

 And Now, this 27th day of January, 2011, the proposal having been made without publication pursuant to Pa.R.J.A. No. 103(a)(3) in the interests of justice and efficient administration:

 It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Pennsylvania Rules of Criminal Procedure 542, 543, 1001, and 1003 are amended, all in the following form.

 This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective in 30 days.

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES

PART D. Proceedings in Court Cases Before Issuing Authorities

Rule 542. Preliminary Hearing; Continuances.

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 (D) At the preliminary hearing, the issuing authority shall determine from the evidence presented whether there is a prima facie case that (1) an offense has been committed and (2) the defendant has committed it.

 (E) Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense requiring proof of the ownership of, non-permitted use of, damage to, or value of property.

 [(D)] (F) In any case in which a summary offense is joined with a misdemeanor, felony, or murder charge, the issuing authority shall not proceed on the summary offense except as provided in Rule 543(F).

 [(E)] (G) CONTINUANCES

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Comment

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 [Former paragraph (D) concerning the procedures when a prima facie case is found was deleted in 2004 as unnecessary because the same procedures are set forth in Rule 543 (Disposition of Case at Preliminary Hearing).]

 Paragraph (E) was added to the rule in 2011 to clarify that traditionally our courts have not applied the law of evidence in its full rigor in proceedings such as preliminary hearings, especially with regard to the use of hearsay to establish the elements of a prima facie case. See the Pennsylvania Rules of Evidence generally, but in particular, Article VIII. Accordingly, hearsay, whether written or oral, may establish the elements enumerated in paragraph (E). That enumeration is not comprehensive, and hearsay is admissible to establish other matters as well. The presence of witnesses to establish these elements is not required at the preliminary hearing. See also Rule 1003 concerning preliminary hearings in Philadelphia Municipal Court.

 If the case is held for court, the normal rules of evidence will apply at trial.

 For the procedures when a defendant fails to appear for the preliminary hearing, see Rule 543(D).

 In cases in which summary offenses are joined with misdemeanor, felony, or murder charges, pursuant to paragraph [(D)] (F), during the preliminary hearing, the issuing authority is prohibited from proceeding on the summary offenses, including the taking of evidence on the summary offenses, or adjudicating or disposing of the summary offenses except as provided in Rule 543(F).

 For the contents of the transcript, see Rule 135.

 Official Note: Former Rule 141, previously Rule 120, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970; revised January 31, 1970, effective May 1, 1970; renumbered Rule 141 and amended September 18, 1973, effective January 1, 1974; amended June 30, 1975, effective July 30, 1975; amended October 21, 1977, effective January 1, 1978; paragraph (D) amended April 26, 1979, effective July 1, 1979; amended February 13, 1998, effective July 1, 1998; rescinded October 8, 1999, effective January 1, 2000. Former Rule 142, previously Rule 124, adopted June 30, 1964, effective January 1, 1965, suspended effective May 1, 1970; present rule adopted January 31, 1970, effective May 1, 1970; renumbered Rule 142 September 18, 1973, effective January 1, 1974; amended October 22, 1981, effective January 1, 1982; effective date extended to July 1, 1982; amended July 12, 1985, effective January 1, 1986, effective date extended to July 1, 1986; rescinded October 8, 1999, effective January 1, 2000. New Rule 141, combining former Rules 141 and 142, adopted October 8, 1999, effective January 1, 2000; renumbered Rule 542 and Comment revised March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended March 9, 2006, effective September 1, 2006; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; amended January 27, 2011, effective in 30 days.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the May 1, 2007 amendments deleting the certified mail service requirement from paragraph [(D)(2)(b)] (E)(2)(b) published with the Court's Order at 37 Pa.B. 2503 (June 2, 2007).

Rule 543. Disposition of Case at Preliminary Hearing.

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 (B) If the issuing authority finds that the Commonwealth [establishes] has established a prima facie case [of the defendant's guilt] that an offense has been committed and the defendant has committed it, the issuing authority shall hold the defendant for court on the offense(s) on which the Commonwealth established a prima facie case. [Otherwise,] If there is no offense for which a prima facie case has been established, the issuing authority shall discharge the defendant [shall be discharged].

*  *  *  *  *

 (D) In any case in which the defendant fails to appear for the preliminary hearing:

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 (2) If the issuing authority finds that there was good cause explaining the defendant's failure to appear, the issuing authority shall continue the preliminary hearing to a specific date and time, and shall give notice of the new date and time as provided in Rule 542[(E)(2)] (G)(2). The issuing authority shall not issue a bench warrant.

 (3) If the issuing authority finds that the defendant's absence is without good cause and after notice, the absence shall be deemed a waiver by the defendant of the right to be present at any further proceedings before the issuing authority.

*  *  *  *  *

 (d) If a continuance is granted, the issuing authority shall give the parties notice of the new date and time as provided in Rule 542[(E)(2)](G)(2), and may issue a bench warrant. If a bench warrant is issued and the warrant remains unserved for the continuation of the preliminary hearing, the issuing authority shall vacate the bench warrant. The case shall proceed as provided in paragraphs (D)(3)(b) or (c).

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Comment

 Paragraph (B) was amended in 2011 to clarify what is the current law in Pennsylvania that, based on the evidence presented by the Commonwealth at the preliminary hearing, the issuing authority may find that the Commonwealth has not made out a prima facie case as to the offense charged in the complaint but has made out a prima facie case as to a lesser offense of the offense charged. In this case, the issuing authority may hold the defendant for court on that lesser offense only. The issuing authority, however, may not sua sponte reduce the grading of any charge.

 See Rule 1003 (Procedure In Non-Summary Municipal Court Cases) for the preliminary hearing procedures in Municipal Court, including reducing felony charges at the preliminary hearing in Philadelphia.

 Paragraph (C) reflects the fact that a bail determination will already have been made at the preliminary arraignment, except in those cases in which, pursuant to a summons, the defendant's first appearance is at the preliminary hearing. See Rules 509 and 510.

*  *  *  *  *

 If the issuing authority determines that there is good cause explaining why the defendant failed to appear, the preliminary hearing must be continued and rescheduled for a date certain. See paragraph (D)(2). For the procedures when a preliminary hearing is continued, see Rule 542[(E)](G).

*  *  *  *  *

 When the defendant fails to appear after notice and without good cause, paragraph (D)(3)(a) provides that the case is to proceed in the same manner as if the defendant were present. The issuing authority either would proceed with the preliminary hearing as provided in Rule 542(A), (B), (C) and Rule 543(A), (B), (C), and (D)(3)(b) or (c); or, if the issuing authority determines it necessary, continue the case to a date certain as provided in Rule 542[(E)](G); or, in the appropriate case, convene the preliminary hearing for the taking of testimony of the witnesses who are present, and then continue the remainder of the hearing until a date certain. When the case is continued, the issuing authority may issue a bench warrant as provided in paragraph (D)(3)(d), and must send the required notice of the new date to the defendant, thus providing the defendant with another opportunity to appear.

*  *  *  *  *

 Rule 542[(D)](F) specifically prohibits an issuing authority at a preliminary hearing from proceeding on any summary offenses that are joined with misdemeanor, felony, or murder charges, except as provided in paragraph (F) of this rule. Paragraph (F) sets forth the procedures for the issuing authority to handle these summary offenses at the preliminary hearing. These procedures include the issuing authority (1) forwarding the summary offenses together with the misdemeanor, felony, or murder charges held for court to the court of common pleas, or (2) disposing of the summary offenses as provided in Rule 454 by accepting a guilty plea or conducting a trial whenever (a) the misdemeanor, felony, and murder charges are withdrawn, or (b) a prima facie case is not established at the preliminary hearing and the Commonwealth requests that the issuing authority proceed on the summary offenses.

*  *  *  *  *

 Paragraph (G) emphasizes the general rule that once a case has been bound over to the court of common pleas, [it shall not] the case is not permitted to be remanded to the issuing authority. There is a limited exception to the general rule in the situation in which the right to a previously waived preliminary hearing is reinstated and the parties agree, with the consent of the common pleas judge, that the preliminary hearing be held before the issuing authority. See Rule 541(D).

 Nothing in this rule would preclude the refiling of one or more of the charges, as provided in these rules.

 See Rule 313 for the disposition of any summary offenses joined with misdemeanor or felony charges when the defendant is accepted into an ARD program on the misdemeanor or felony charges.

 [See Rule 1003 (Procedure in Non-Summary Municipal Court Cases) for the preliminary hearing procedures in Municipal Court.]

 Official Note: Original Rule 123, adopted June 30, 1964, effective January 1, 1965, suspended January 31, 1970, effective May 1, 1970. New Rule 123 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 143 September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; amended August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; renumbered Rule 142 October 8, 1999, effective January 1, 2000; renumbered Rule 543 and amended March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended December 30, 2005, effective August 1, 2006; amended March 9, 2006, effective September 1, 2006; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; amended July 10, 2008, effective February 1, 2009; amended February 12, 2010, effective April 1, 2010; amended January 27, 2011, effective in 30 days.

Committee Explanatory Reports:

 Report explaining the August 9, 1994 amendments published at 22 Pa.B. [6] 18 (January 4, 1992); Final Report published with the Court's Order at 24 Pa.B. [4325] 4342 (August 27, 1994).

 Final Report explaining the September 13, 1995 amendments published with the Court's Order at 25 Pa.B. [4100] 4116 (September 30, 1995).

 Final Report explaining the October 8, 1999 renumbering of Rule 143 published with the Court's Order at 29 Pa.B. [5505] 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. [1477] 1478 (March 18, 2000).

 Final Report explaining the August 24, 2004 changes concerning the procedures when a defendant fails to appear published with the Court's Order at 34 Pa.B. [5016] 5025 (September 11, 2004).

 Final Report explaining the December 30, 2005 changes adding references to bench warrants published with the Court's Order at 36 Pa.B. [181] 184 (January 14, 2006).

 Final Report explaining the March 9, 2006 amendments adding new paragraphs (E) and (F) published with the Court's Order at 36 Pa.B. [1385] 1392 (March 25, 2006).

 Final Report explaining the May 19, 2006 amendments correcting cross-references to Rule 529 published with the Court's Order at 36 Pa.B. [2631] 2633 (June 3, 2006).

*  *  *  *  *

CHAPTER 10. RULES OF CRIMINAL PROCEDURE FOR THE PHILADELPHIA MUNICIPAL COURT AND THE PHILADELPHIA TRAFFIC COURT

Rule 1001. Disposition of Criminal Cases—Philadelphia Municipal Court.

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 (D) The attorney for the Commonwealth may file with the Municipal Court Clerk of [Quarter Sessions] Courts a written certification to exercise the Commonwealth's right to a jury trial in a Municipal Court case. The attorney for the Commonwealth shall serve a copy of the certification on counsel for the defendant, or the defendant if unrepresented, and on the President Judge of Municipal Court. Upon receipt of the certification, the President Judge [shall] promptly shall schedule a preliminary hearing, and the case shall be conducted as provided in Rules 541, 542, [and] 543, and 1003(E). When a case is held for court, the case shall remain in the Common Pleas Court through final disposition.

Comment

 This rule, which defines ''Municipal Court [Case] case,'' is intended to ensure that the Municipal Court will take dispositive action, including trial and verdict when appropriate, in any criminal case that does not involve a felony, excluding summary cases under the Vehicle Code. The latter are under the jurisdiction of the Philadelphia Traffic Court, see 42 Pa.C.S. §§ 1301—1303, 1321.

 Paragraph (D) was added in 2007 in accord with the 1998 amendment to article I, § 6 of the Pennsylvania Constitution that provides that ''the Commonwealth shall have the same right to trial by jury as does the accused.'' See Commonwealth v. Hargraves, 883 A.2d 616 (Pa. Super. 2005), allocatur denied, 587 Pa. 711, 898 A.2d 1069 ([Pa.] 2006). The filing and service requirement in paragraph (D) must be accomplished as provided in Rule 576. Once a case is bound over to Common Pleas Court, the trial judge may not remand the case to the Municipal Court for any reason, even if the right to jury trial is waived.

 Official Note: Present Rule 6001 adopted March 28, 1973, effective March 28, 1973, replacing prior Rule 6001; amended June 28, 1974, effective July 1, 1974; paragraph (C) added February 10, 1975, effective immediately; title amended July 1, 1980, effective August 1, 1980; Comment revised January 28, 1983, effective July 1, 1983; amended June 19, 1996, effective July 1, 1996; amended August 28, 1998, effective immediately; renumbered Rule 1001 and Comment revised March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended January 5, 2007, effective March 6, 2007; amended January 27, 2011, effective in 30 days.

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PART A. Philadelphia Municipal Court Procedures

Rule 1003. Procedure in Non-Summary Municipal Court Cases.

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 (E) PRELIMINARY HEARING IN CASES CHARGING A FELONY

 [In] (1) Except as provided in paragraphs (E)(2) and (E)(3), in cases charging a felony, the preliminary hearing in Municipal Court shall be conducted as provided in Rule 542 (Preliminary Hearing; Continuances) and Rule 543 (Disposition of Case at Preliminary Hearing).

 (2) At the preliminary hearing, the issuing authority shall determine whether there is a prima facie case that an offense has been committed and that the defendant has committed it.

 (a) Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established.

 (b) Hearsay evidence shall be sufficient to establish any element of an offense requiring proof of the ownership of, non-permitted use of, damage to, or value of property.

 (3) If a prima facie case is not established on any felony charges, but is established on any misdemeanor or summary charges, the judge shall remand the case to Municipal Court for trial.

 (F) ACCEPTANCE OF BAIL PRIOR TO TRIAL

 The Clerk of [Quarter Sessions] Courts shall accept bail at any time prior to the Municipal Court trial.

Comment

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 If the attorney for the Commonwealth exercises the options provided by Rule 202, Rule 507, or both, the attorney must file the certifications required by paragraphs (B) of Rules [507 and 202] 202 and 507 with the Court of Common Pleas of Philadelphia County and with the Philadelphia Municipal Court. For the contents of the complaint, see Rule 504.

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 Under paragraphs (A) and (D), if a defendant has been arrested without a warrant, the issuing authority must make a prompt determination of probable cause before the defendant may be detained. See Riverside v. McLaughlin, 500 U.S. 44[, 111 S.Ct. 1661, 114 L.Ed.2d 49] (1991). The determination may be based on written affidavits, an oral statement under oath, or both.

*  *  *  *  *

 Paragraphs (D)(3)(d)(iii) and (E) make it clear that, [except for the time for the preliminary hearing] with some exceptions, the procedures in Municipal Court for both preliminary hearings and cases in which the defendant fails to appear for the preliminary hearing are the same as the procedures in the other judicial districts.

 Paragraph (E)(2)(a) permits the use of hearsay at the preliminary hearing to establish certain elements of specific crimes. But compare Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (1990) (plurality) (disapproving reliance on hearsay testimony as the sole basis for establishing a prima facie case). Nothing in this rule is intended to prohibit the use of hearsay at the preliminary hearing as otherwise permitted by case law or other authority. See, e.g., the Pennsylvania Rules of Evidence generally, but in particular, Article VIII.

 Paragraph (E)(2)(b) provides that hearsay, whether written or oral, may establish the elements enumerated in paragraph (E)(2). That enumeration is not comprehensive, and hearsay is admissible to establish other matters as well. The presence of witnesses to establish these elements is not required at the preliminary hearing.

 For purposes of modifying bail once bail has been set by a common pleas judge, see Rules 529 and 536.

 Official Note: Original Rule 6003 adopted June 28, 1974, effective July 1, 1974; amended January 26, 1977, effective April 1, 1977; amended December 14, 1979, effective April 1, 1980; amended July 1, 1980, effective August 1, 1980; amended October 22, 1981, effective January 1, 1982; Comment revised December 11, 1981, effective July 1, 1982; amended January 28, 1983, effective July 1, 1983; amended February 1, 1989, effective July 1, 1989; rescinded August 9, 1994, effective January 1, 1995. New Rule 6003 adopted August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; amended March 22, 1996, effective July 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; amended August 28, 1998, effective immediately; renumbered Rule 1003 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended August 24, 2004, effective August 1, 2005; amended August 15, 2005, effective February 1, 2006; amended April 5, 2010, effective April 7, 2010; amended January 27, 2011, effective in 30 days.

Committee Explanatory Reports:

 Report explaining the provisions of the new rule published at 22 Pa.B. [6,] 18 (January 4, 1992). Final Report published with the Court's Order at 24 Pa.B. [4325,] 4342 (August 27, 1994).

 Final Report explaining the September 13, 1995 amendments published with Court's Order at 25 Pa.B. [4100,] 4116 (September 30, 1995).

 Final Report explaining the March 22, 1996 amendments published with the Court's Order at 26 Pa.B. [1684,] 1690 (April 13, 1996).

 Final Report explaining the August 28, 1998 amendments published with the Court's Order at 28 Pa.B. [4624,] 4627 (September 12, 1998).

 Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477,] 1478 (March 18, 2000).

 Final Report explaining the May 10, 2002 amendments concerning advanced communication technology published with the Court's Order at 32 Pa.B. [2582,] 2591 (May 25, 2002).

 Final Report explaining the August 24, 2004 changes clarifying preliminary arraignment and preliminary hearing procedures in Municipal Court cases published with the Court's Order at 34 Pa.B. [5016,] 5025 (September 11, 2004).

 Final Report explaining the August 15, 2005 amendments to paragraphs (A)(2)(b)(ii) and (D)(3)(d)(ii) published with the Court's Order at 35 Pa.B. [4914,] 4918 (September 3, 2005).

[Pa.B. Doc. No. 11-242. Filed for public inspection February 11, 2011, 9:00 a.m.]