271 Proposed new Pa.R.Crim.P. 1036, proposed amendment to Pa.Rs.Crim.P. 105, 1000, 1031—1035 and 1037 and proposed revision of the comments to Pa.Rs.Crim.P. 103, 140, 141, 431, 441, 462, 1001, 1002 and 1030

Title 234—RULES OF CRIMINAL PROCEDURE

[ 234 PA. CODE CHS. 1, 4 AND 10 ]

Proposed New Pa.R.Crim.P. 1036, Proposed Amendment to Pa.Rs.Crim.P. 105, 1000, 1031—1035 and 1037 and Proposed Revision of the Comments to Pa.Rs.Crim.P. 103, 140, 141, 431, 441, 462, 1001, 1002 and 1030

[44 Pa.B. 769]
[Saturday, February 8, 2014]

 The Criminal Procedural Rules Committee is considering recommending that the Supreme Court of Pennsylvania adopt new Rule 1036, amend Rules 105, 1000, 1031—1035, and 1037 and revise the Comments to Rules 103, 140, 141, 431, 441, 462, 1001, 1002, and 1030 to accommodate the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court Traffic Division. 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 Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.

 The text of the proposed amendments to the rules 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,

Jeffrey M. Wasileski, Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
Harrisburg, PA 17106-2635
fax: [phone]
e-mail: [e-mail]

no later than Friday, March 7, 2014.

By the Criminal Procedural Rules Committee:

THOMAS P. ROGERS, 
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

Rule 103. Definitions.

*  *  *  *  *

Comment

*  *  *  *  *

 Neither the definition of law enforcement officer nor the definition of police officer gives the power of arrest to any person who is not otherwise given that power by law.

 See Rule 1036 for the definition of hearing officers of the Philadelphia Municipal Court Traffic Division as ''issuing authorities'' for limited purposes specified in the rule.

 The definition of signature was added in 2004 to make it clear when a rule requires a document generated by the minor judiciary or court of common pleas to include a signature or to be signed, that the signature may be in any of the forms provided in the definition. In addition, documents that institute proceedings or require the inclusion of an oath ordinarily are not documents generated by the minor courts or courts of common pleas and therefore any signature required on the document would not be included in this definition of signature; however, in the event such a document is generated by the minor courts or the courts of common pleas, the form of ''signature'' on this document is limited to handwritten, and the other forms of signature provided in the definition are not permitted.

 Included in Chapter 5 Part C of the rules are additional definitions of words and phrases that apply specifically to bail in criminal cases. See, e.g., Rule 524, which defines the types of release on bail.

 Official Note: Previous Rules 3 and 212 adopted June 30, 1964, effective January 1, 1965, suspended January 31, 1970, effective May 1, 1970; present Rule 3 adopted January 31, 1970, effective May 1, 1970; amended June 8, 1973, effective July 1, 1973; amended February 15, 1974, effective immediately; amended June 30, 1977, effective September 1, 1977; amended January 4, 1979, effective January 9, 1979; amended July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; amended August 12, 1993, effective September 1, 1993; amended February 27, 1995, effective July 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 103 and Comment revised March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended March 3, 2004, effective July 1, 2004; amended April 30, 2004, effective July 1, 2004; amended August 24, 2004, effective August 1, 2005; amended February 4, 2005, effective immediately; amended May 6, 2009, effective immediately; amended June 21, 2012, effective in 180 days; amended     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed revision of the Comment cross-referencing Rule 1036 limited definition of Philadelphia Municipal Court Traffic Division hearing officers as ''issuing authorities'' published for comment at 44 Pa.B. 777 (February 8, 2014).

Rule 105. Local Rules.

 (A) For the purpose of this rule, the term ''local rule'' shall include every rule, administrative order, regulation, directive, policy, custom, usage, form or order of general application, however labeled or promulgated, which is adopted or enforced by a court of common pleas, by the Philadelphia Municipal Court, or by [the Philadelphia Traffic Court] the Philadelphia Municipal Court Traffic Division to govern criminal practice and procedure.

*  *  *  *  *

 Official Note: Rule 6 adopted January 28, 1983, effective July 1, 1983; amended May 19, 1987, effective July 1, 1987; renumbered Rule 105 and amended March 1, 2000, effective April 1, 2001; amended October 24, 2000, effective January 1, 2001; Comment revised June 8, 2001, effective immediately; amended October 15, 2004, effective January 1, 2005; amended September 9, 2005, effective February 1, 2006; amended January 25, 2008, effective February 1, 2009; amended January 30, 2009, effective February 1, 2009; amended     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed amendments concerning the transfer of the Philadelphia Traffic Court functions to the Philadelphia Municipal Court published for comment at 44 Pa.B. 777 (February 8, 2014).

PART D. Procedures Implementing 42 Pa.C.S. §§ 4137, 4138, and 4139: Criminal Contempt Powers of District Justices, Judges of the Pittsburgh Magistrates Court, and Judges of the Traffic Court of Philadelphia

Rule 140. Contempt Proceedings Before Magisterial District Judges, Pittsburgh Magistrates Court Judges, and Philadelphia Traffic Court Judges.

*  *  *  *  *

Comment

*  *  *  *  *

 By Orders dated November 29, 2004, 34 Pa.B. 6507 (December 11, 2004) and February 25, 2005, 35 Pa.B. 1662 (March 12, 2005), the Pennsylvania Supreme Court created an administrative judicial unit referred to as the Pittsburgh Municipal Court and assigned all matters within the jurisdiction of the Pittsburgh Magistrates Court to the Pittsburgh Municipal Court. As a result of these orders, the Pittsburgh Magistrates Court is no longer staffed while the Pittsburgh Municipal Court is staffed by Allegheny County magisterial district judges assigned on a rotating basis. The terminology is retained in these rules because the Pittsburgh Magistrates Court, which is created by statute, has not been disestablished by the statute.

 Pursuant to Act 17 of 2013, P. L. 55, No. 17 (June 19, 2013), the jurisdiction and functions of the Philadelphia Traffic Court were transferred to the Philadelphia Municipal Court Traffic Division. The terminology is retained in these rules because the Philadelphia Traffic Court, which is created by the Pennsylvania Constitution, has not been disestablished by constitutional amendment. Hearing officers of the Philadelphia Municipal Court Traffic Division do not have contempt powers of Philadelphia Traffic Court judges under 42 Pa.C.S. § 4139(d).

 All contempt proceedings under this rule are to be entered on the issuing authority's miscellaneous docket, and a separate docket transcript for the contempt proceeding is to be prepared. If an appeal is taken, the issuing authority is required to forward the transcript and the contempt order to the clerk of courts. See Rule 141.

*  *  *  *  *

 Official Note: Rule 30 adopted October 1, 1997, effective October 1, 1998; renumbered Rule 140 and amended March 1, 2000, effective April 1, 2001; Comment revised March 26, 2004, effective July 1, 2004; amended March 1, 2012, effective July 1, 2012; Comment revised     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed Comment revision concerning the transfer of the Philadelphia Traffic Court functions to the Philadelphia Municipal Court published for comment at 44 Pa.B. 777 (February 8, 2014).

Rule 141. Appeals from Contempt Adjudications by Magisterial District Judges, Pittsburgh Magistrates Court Judges, or Philadelphia Traffic Court Judges.

*  *  *  *  *

Comment

*  *  *  *  *

 By Orders dated November 29, 2004, 34 Pa.B. 6507 (December 11, 2004) and February 25, 2005, 35 Pa.B. 1662 (March 12, 2005), the Pennsylvania Supreme Court created an administrative judicial unit referred to as the Pittsburgh Municipal Court and assigned all matters within the jurisdiction of the Pittsburgh Magistrates Court to the Pittsburgh Municipal Court. As a result of these orders, the Pittsburgh Magistrates Court is no longer staffed while the Pittsburgh Municipal Court is staffed by Allegheny County magisterial district judges assigned on a rotating basis. The terminology is retained in these rules because the Pittsburgh Magistrates Court, which is created by statute, has not been disestablished by the statute.

 Pursuant to Act 17 of 2013, P. L. 55, No. 17 (June 19, 2013), the jurisdiction and functions of the Philadelphia Traffic Court were transferred to the Philadelphia Municipal Court Traffic Division. The terminology is retained in these rules because the Philadelphia Traffic Court, which is created by the Pennsylvania Constitution, has not been disestablished by constitutional amendment. Hearing officers of the Philadelphia Municipal Court Traffic Division do not have contempt powers of Philadelphia Traffic Court judges under 42 Pa.C.S. § 4139(d).

 As the Pennsylvania Supreme Court stated in Commonwealth v. McMullen, 599 Pa. 435, 961 A.2d 842 (2008), legislative limitations on a court's power to sentence for contempt are unconstitutional.

*  *  *  *  *

 Official Note: Rule 31 adopted October 1, 1997, effective October 1, 1998; renumbered Rule 141 and Comment revised March 1, 2000, effective April 1, 2001; amended February 28, 2003, effective July 1, 2003; Comment revised March 26, 2004, effective July 1, 2004; amended March 1, 2012, effective July 1, 2012; Comment revised     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed Comment revision concerning the transfer of the Philadelphia Traffic Court functions to the Philadelphia Municipal Court published for comment at 44 Pa.B. 777 (February 8, 2014).

CHAPTER 4. PROCEDURES IN SUMMARY CASES

PART D. Arrest Procedures in Summary Cases

PART D(1). Arrests With a Warrant

Rule 431. Procedure When Defendant Arrested With Warrant.

*  *  *  *  *

Comment

*  *  *  *  *

 For the procedures in summary cases within the jurisdiction of [Philadelphia Traffic Court or] Philadelphia Municipal Court and the Philadelphia Municipal Court Traffic Division, see Chapter 10.

 Official Note: Rule 76 adopted July 12, 1985, effective January 1, 1986; Comment revised September 23, 1985, effective January 1, 1986; January 1, 1986 effective dates extended to July 1, 1986; Comment revised January 31, 1991, effective July 1, 1991; amended August 9, 1994, effective January 1, 1995; amended October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999; renumbered Rule 431 and amended March 1, 2000, effective April 1, 2001; amended August 7, 2003, effective July 1, 2004; Comment revised April 1, 2005, effective October 1, 2005; amended June 30, 2005, effective August 1, 2006; Comment revised March 9, 2006, effective August 1, 2006; amended     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed Comment revision changing the cross-reference to the Philadelphia Traffic Court to the Traffic Division of the Philadelphia Municipal Court published for comment at 44 Pa.B. 777 (February 8, 2014).

PART D(2). Arrests Without a Warrant

Rule 441. Procedure Following Arrest Without Warrant.

*  *  *  *  *

Comment

*  *  *  *  *

 For the procedures in summary cases within the jurisdiction of [Philadelphia Traffic Court or] Philadelphia Municipal Court and the Philadelphia Municipal Court Traffic Division, see Chapter 10.

*  *  *  *  *

 Official Note: Rule 71 adopted July 12, 1985, effective January 1, 1986; Comment revised September 23, 1985, effective January 1, 1986; January 1, 1986 effective dates extended to July 1, 1986; amended August 9, 1994, effective January 1, 1995; amended May 14, 1999, effective July 1, 1999; renumbered Rule 441 and amended March 1, 2000, effective April 1, 2001; amended August 7, 2003, effective July 1, 2004; amended June 30, 2005, effective August 1, 2006; amended     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed Comment revision changing the cross-reference to the Philadelphia Traffic Court to the Traffic Division of the Philadelphia Municipal Court published for comment at 44 Pa.B. 777 (February 8, 2014).

PART F. Procedures in Summary Cases for Appealing to Court of Common Pleas for Trial De Novo

Rule 462. Trial De Novo.

*  *  *  *  *

Comment

*  *  *  *  *

 For the procedures for appeals from the [Philadelphia Traffic Court] Philadelphia Municipal Court Traffic Division, see Rule 1037.

 Official Note: Former Rule 86 adopted July 12, 1985, effective January 1, 1986; revised September 23, 1985, effective January 1, 1986; the January 1, 1986 effective dates extended to July 1, 1986; amended February 2, 1989, effective March 1, 1989; amended March 22, 1993, effective January 1, 1994; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; amended February 27, 1995, effective July 1, 1995; amended October 1, 1997, effective October 1, 1998; amended May 14, 1999, effective July 1, 1999; rescinded March 1, 2000, effective April 1, 2001, and paragraph (G) replaced by Rule 462. New Rule 462 adopted March 1, 2000, effective April 1, 2001; amended March 3, 2000, effective July 1, 2000; amended February 28, 2003, effective July 1, 2003; Comment revised March 26, 2004, effective July 1, 2004; amended January 18, 2007, effective August 1, 2007; amended December 16, 2008, effective February 1, 2009; Comment revised October 16, 2009, effective February 1, 2009; amended     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

NEW RULE 462:

*  *  *  *  *

 Report explaining the proposed Comment revision changing the cross-reference to the Philadelphia Traffic Court to the Traffic Division of the Philadelphia Municipal Court published for comment at 44 Pa.B. 777 (February 8, 2014).

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

Rule 1000. Scope of Rules.

 (A) The rules in this chapter govern all proceedings in the Philadelphia Municipal Court, including summary cases; Municipal Court cases, as defined in Rule 1001(A); the filing of appeals from Municipal Court cases; the filing of petitions for writs of certiorari; and the preliminary proceedings in criminal cases charging felonies, Part A, and govern proceedings in summary traffic cases in [Traffic Court] Municipal Court Traffic Division, Part B.

 (B) Any procedure that is governed by a statewide Rule of Criminal Procedure that is not specifically covered in Chapter 10 or by a Philadelphia local rule authorized by these rules and adopted pursuant to Rule 105 shall be governed by the relevant statewide rule.

Comment

 The 2004 amendments make it clear that, except as otherwise provided in the rules, Chapter 10 governs all proceedings in the Philadelphia Municipal Court, including the procedures for instituting criminal cases charging felonies, preliminary arraignments, and preliminary hearings. See 42 Pa.C.S. § 1123 (Jurisdiction and Venue).

 Official Note: Rule 6000 adopted December 30, 1968, effective January 1, 1969; amended March 28, 1973, effective March 28, 1973; amended July 1, 1980, effective August 1, 1980; renumbered Rule 1000 and amended March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended June 30, 2005, effective August 1, 2006; amended September 9, 2005, effective February 1, 2006; amended     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed amendments concerning the abolition of the Philadelphia Traffic Court transfer of functions to the Philadelphia Municipal Court published for comment at 44 Pa.B. 777 (February 8, 2014).

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

*  *  *  *  *

Comment

 This rule, which defines ''Municipal Court 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] Municipal Court Traffic Division, the successor of the Philadelphia Traffic Court, see Act 17 of 2013, P. L. 55, No. 17 (June 19, 2013) and 42 Pa.C.S. § 102, 325, 1121, 1127, 1302, 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 (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; amended     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed Comment revision the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published for comment at 44 Pa.B. 777 (February 8, 2014).

PART A. Philadelphia Municipal Court Procedures

Rule 1002. Procedure in Summary Cases.

*  *  *  *  *

Comment

*  *  *  *  *

 All summary offenses under the motor vehicle laws and parking violations are under the jurisdiction of the [Philadelphia Traffic Court. See 42 Pa.C.S. §§ 1301—1303, 1321] Municipal Court Traffic Division, the successor of the Philadelphia Traffic Court, see Act 17 of 2013, P. L. 55, No. 17 (June 19, 2013) and 42 Pa.C.S. § 102, 325, 1121, 1127, 1302, 1321.

 Official Note: Rule 6002 adopted June 28, 1974, effective July 1, 1974; amended July 1, 1980, effective August 1, 1980; Comment revised January 28, 1983, effective July 1, 1983; amended July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; amended February 1, 1989, effective July 1, 1989; amended August 9, 1994, effective January 1, 1995; renumbered Rule 1002 and amended March 1, 2000, effective April 1, 2001. Rule 1002 rescinded August 15, 2005, effective February 1, 2006, and replaced by new Rule 1002; amended May 6, 2009, effective February 1, 2010; Comment revised February 12, 2010, effective April 1, 2010; amended December 22, 2010, effective February 20, 2011; amended     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed Comment revisions concerning the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published for comment at 44 Pa.B. 777 (February 8, 2014).

PART B. Philadelphia [Traffic Court] Municipal Court Traffic Division Procedures

Rule 1030. Scope of Summary Traffic Court Rules.

*  *  *  *  *

Comment

 These rules were developed in 2005 to accommodate the procedures Philadelphia Traffic Court has implemented to address the issues in summary traffic cases unique to Philadelphia, to more efficiently handle the vast number of summary traffic cases, and to protect the defendants' rights to a fair and prompt disposition of their cases.

 The jurisdiction and functions of the Philadelphia Traffic Court were transferred to the Philadelphia Municipal Court Traffic Division in 2013, see Act 17 of 2013, P. L. 55, No. 17 (June 19, 2013) and 42 Pa.C.S. § 102, 325, 1121, 1127, 1302, 1321.

 See Rule 105 for the procedures for promulgating local rules.

 Official Note: Adopted September 9, 2005, effective February 1, 2006; amended     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed Comment revision concerning the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published for comment at 44 Pa.B. 777 (February 8, 2014).

Rule 1031. Institution of Proceedings in Summary Traffic Cases.

 (A) Summary traffic cases in Philadelphia shall be instituted by:

 (1)  issuing a citation to the defendant as provided in Rules 405—409;

 (2)  filing a citation with the [Traffic Court] Philadelphia Municipal Court Traffic Division as provided in Rules 410—414; or

 (3) arresting without a warrant when arrest is specifically authorized by law as provided in Rules 440 and 441.

 (B) [The Administrative Judge of Traffic Court, or in the event the position of Administrative Judge is vacant, the Traffic Court President Judge, may provide by local rule, as an exception to the trial notice procedures in Rule 408(B), when a citation is issued to the defendant as provided in Rule 405, that the law enforcement officer also shall give the defendant written notice of the date and time and location set for the summary trial.] When provided by local rule as an exception to the trial notice procedures in Rule 408(B), the law enforcement officer also shall give the defendant written notice of the date and time and location set for the summary trial when a citation is issued to the defendant as provided in Rule 405.

*  *  *  *  *

 Official Note: Adopted September 9, 2005, effective February 1, 2006; amended     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed amendments concerning the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published for comment at 44 Pa.B. 777 (February 8, 2014).

Rule 1032. Pleas in Response to Citation.

 In addition to the procedures in Rules 407 and 412 for entering a plea in a summary traffic case, the defendant, by means of electronic transmission as provided by local rule, may notify the [Traffic Court] Municipal Court Traffic Division of his or her plea, and either pay the fines and costs or post the requisite collateral.

*  *  *  *  *

 Official Note: Adopted September 9, 2005, effective February 1, 2006; amended     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed amendments concerning the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published for comment at 44 Pa.B. 777 (February 8, 2014).

Rule 1033. Procedures When Defendant Arrested with Warrant.

 (A) When a defendant is arrested pursuant to a warrant issued as provided in Rule 430, the police officer without unnecessary delay shall take the defendant before the proper issuing authority and shall proceed as provided in this rule and by local rule.

 (B) When the defendant appears in person or appears by means of two-way simultaneous audio-video equipment, the judge or [bail commissioner] arraignment court magistrate shall:

 (1)  inform the defendant concerning the specific citations to which the defendant has not entered a plea as required by Rules 407 and 412;

 (2) inform the defendant concerning the specific citations that have been adjudicated that have outstanding fines or costs for which the defendant is in default of a payment order or a payment plan; and

 (3) advise the defendant of the right to retain counsel, and if, in the event of a conviction, there is a reasonable likelihood of a sentence of imprisonment and the defendant does not have the financial ability to retain counsel, advise the defendant that counsel will be appointed by Traffic [Court] Division as provided in Rule 1035.

 (C) When the defendant appears before [a bail commissioner, the bail commissioner] an arraignment court magistrate, the arraignment court magistrate shall schedule the next court proceeding before the Traffic [Court] Division and give the defendant a hearing notice or subpoena, set collateral as provided in Rule 1034 and local rule, and release the defendant, or if the defendant is unable to post the collateral, commit the defendant.

 (D) When the defendant appears before a Traffic [Court judge] Division judge or hearing officer,

 (1) if the matter is not ready to proceed, the Traffic [Court judge] Division judge or hearing officer shall schedule the next court proceeding and give the defendant a scheduling order, set collateral as provided in Rule 1034 and local rule, and release the defendant, or if the defendant is unable to post the collateral, commit the defendant.

 (2) If the matter is ready to proceed,

 (a) when the defendant is arrested pursuant to a warrant issued as provided in Rule 430(A) or (B)(1)(a) or (B)(2), the defendant shall enter a plea. If the defendant pleads guilty, the Traffic [Court judge] Division judge or hearing officer shall impose sentence. If the defendant pleads not guilty, the summary trial shall be conducted.

 (b) When the defendant is arrested following a trial in absentia pursuant to a warrant issued as provided in Rule 430(B)(3)(c) and (B)(4),

 (i) the Traffic [Court judge] Division judge or hearing officer shall conduct an immediate hearing to determine defendant's financial ability to pay the full amount due.

 (ii) If the Traffic [Court judge] Division judge or hearing officer determines the defendant is financially unable to pay the full amount due, the judge may order an installment payment plan as provided in Rule 456(C)(2).

 (iii) If the judge or hearing officer determines the defendant is financially able to pay the full amount due, and that there is a likelihood that imprisonment will be imposed at the conclusion of the hearing, the judge or hearing officer shall advise the defendant of the right to retain counsel, and, if the defendant does not have the financial ability to retain counsel, advise the defendant that counsel will be appointed by Traffic [Court] Division as provided in Rule 1035. A hearing may be held if retained or appointed counsel is available; otherwise, the hearing shall be rescheduled for a date certain, and the defendant shall be released on collateral as provided in Rule 1034.

 (iv) At the conclusion of the hearing, the Traffic [Court judge] Division judge or hearing officer shall proceed as provided in Rule 456(C)(3).

 (c) When the defendant is arrested after defaulting on the payment of fine or costs or restitution pursuant to a warrant issued as provided in Rule 430(B)(3)(b) and (B)(4),

 (i) the Traffic [Court judge] Division judge or hearing officer shall conduct an immediate hearing to determine whether the defendant is financially able to pay the outstanding fines and costs as previously ordered.

 (ii) If the judge or hearing officer determines the defendant is financially unable to pay as previously ordered, the judge may issue a revised payment order or payment plan.

 (iii) If the judge or hearing officer determines the defendant is financially able to pay as previously ordered, and that there is a likelihood that imprisonment will be imposed at the conclusion of the hearing, the judge shall advise the defendant of the right to retain counsel, and if, the defendant does not have the financial ability to retain counsel, advise the defendant that counsel will be appointed by Traffic Court as provided in Rule 1035. A hearing may be held if retained or appointed counsel is available; otherwise the hearing shall be rescheduled for a date certain, and the defendant shall be released on collateral as provided in Rule 1034.

 (iv) At the conclusion of the hearing, the Traffic [Court judge] Division judge or hearing officer shall proceed as provided in Rule 456(C)(3).

 (d) When the defendant is arrested on multiple warrants in cases involving both unadjudicated citations and adjudicated citations with outstanding balances, the matter shall proceed as provided in paragraph (D)(2)(a) (summary trial), or paragraphs (D)(2)(b) or (D)(2)(c) (default hearings). These cases may be joined and the proceeding scheduled before the same Traffic [Court judge] Division judge or hearing officer.

Comment

 Pursuant to Philadelphia Municipal Court Local Rule 540 and Traffic [Court] Division Local Rule 1033, when a defendant is arrested outside the normal business hours of Traffic [Court] Division, the defendant is to be taken without unnecessary delay before a Philadelphia Municipal Court [bail commissioner] arraignment court magistrate who shall proceed as provided in paragraph (C) and in Traffic [Court] Division Local Rule 1033.

 ''Proper issuing authority'' as used in this rule is the [traffic court judge or bail commissioner] Traffic Division judge or arraignment court magistrate assigned to conduct these proceedings as provided in this rule, Municipal Court Local Rule 540, and Traffic [Court] Division Local Rule 1033.

 For the procedures for contempt proceedings in Traffic [Court] Division cases, see Rules 140, 141, and 142.

 For the summary appeal procedures, see Rules 460, 461, and 462.

 See Rule 105 for the procedures for promulgating local rules.

 Official Note: Adopted September 9, 2005, effective February 1, 2006; amended     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed amendments concerning the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published for comment at 44 Pa.B. 777 (February 8, 2014).

Rule 1034. Collateral.

 (A) Except as provided in this rule, the procedures for collateral shall be as provided in Rule 452.

 (B) When determining the amount of collateral, if any,

 (1)  if the defendant does not have a prior history of failure to appear for scheduled hearings, or there are other reasonable grounds to believe that the defendant will appear, or the defendant is without adequate resources to deposit collateral, the Traffic [Court judge or bail commissioner] Division judge, hearing officer or arraignment court magistrate shall consider releasing the defendant on his or her own recognizance, or sign own bail (''SOB''), or on a nominal amount of collateral.

 (2) If the defendant has a prior history of failing to appear for Traffic [Court] Division scheduled hearings, and notice of the hearings was served personally on defendant, the Traffic [Court judge or bail commissioner] Division judge, hearing officer or arraignment court magistrate may set collateral in an amount not to exceed the collateral that may be required for the payment of defendant's unadjudicated citations and the balance of outstanding fines and costs owed on adjudicated citations.

Comment

 When the collateral is set in a monetary amount, the Traffic [Court judge or bail commissioner] Division judge, hearing officer or arraignment court magistrate may permit the defendant to be released from custody when 10% of the amount has been posted.

 When determining the amount of collateral to set in paragraph (B)(2), the judge [or bail commissioner] , hearing officer or arraignment court magistrate must take into consideration the defendant's financial resources and ability to post the amount set. The amount of collateral must be reasonable.

 See Rule 105 for the procedures for promulgating local rules.

 Official Note: Adopted September 9, 2005, effective February 1, 2006; amended     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed amendments concerning the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published for comment at 44 Pa.B. 777 (February 8, 2014).

Rule 1035. Appointment of Counsel.

 A) When the Traffic [Court judge] Division judge or hearing officer has preliminarily determined that there is a likelihood that imprisonment will be imposed at the conclusion of a summary traffic proceeding,

 (1) a hearing may be held if retained or appointed counsel is available; or

 (2) if the defendant is without financial resources or is otherwise unable to employ counsel, the judge shall continue the proceeding, issue a scheduling order, and either appoint counsel or direct the defendant to report for a financial interview to determine eligibility to court-appointed counsel.

 (B) When the defendant reports for the financial interview to determine eligibility to court-appointed counsel, the defendant shall provide supporting documentation, such as a driver's license, a DPW card, pay stubs, and any other relevant information. Upon review of the information provided by the defendant during the financial interview, the Traffic [Court judge] Division judge or hearing officer shall enter an appropriate order.

 (C) Counsel's appointment shall terminate at the conclusion of the Traffic [Court] Division proceeding, unless the Traffic [Court] Division judge sentences the defendant to a period of incarceration, in which case, counsel's appointment shall continue through any appeal for a trial de novo in the court of common pleas.

 (D) At the time a sentence is imposed that includes a period of incarceration, if the defendant is represented by private counsel, the Traffic [Court] Division judge shall advise the defendant that, in the event private counsel ceases to represent the defendant after the imposition of the sentence and before the sentence is carried out, if the defendant is unable to afford counsel, he or she has the right to have counsel appointed to represent the defendant to file an appeal for a trial de novo, and if appointed, counsel's appointment shall continue through the trial de novo in the court of common pleas.

Comment

 No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002), Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

 See Rules 460, 461, and 462 for the procedures for summary case appeals.

 Official Note: Adopted September 9, 2005, effective February 1, 2006; amended     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed amendments concerning the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published for comment at 44 Pa.B. 777 (February 8, 2014).

Rule 1036. [Traffic Court Hearing Officers] (Reserved).

 [(A) The Administrative Judge of Traffic Court, or in the event the position of Administrative Judge is vacant, the President Judge of Traffic Court, may appoint Traffic Court hearing officers to conduct post-hearing proceedings, including but not limited to, establishing or re-establishing payment plans, monitoring compliance with payment plans, holding warrant hearings, and performing additional duties as may be identified by local rule.

 (B) The Administrative Judge by local rule shall establish the qualifications and educational requirements for the position of Traffic Court hearing officer.

Comment

 See Pa.R.Crim.P. 105 for the procedures for promulgating local rules.

 Official Note: Adopted September 9, 2005, effective February 1, 2006.

Committee Explanatory Reports:

 Final Report explaining the provisions of the new rule published with the Court's Order at 35 Pa.B. 5242 (September 24, 2005).]

 (Editor's Note: The following rule is new and printed in regular type to enhance readability.)

Rule 1036. Philadelphia Municipal Court Traffic Division Hearing Officers.

 (A) As provided in this rule, Philadelphia Municipal Court Traffic Division hearing officers may be appointed to hear cases and issue adjudications in connection with prosecutions for summary offenses arising under Title 75 (relating to vehicles) and ordinances enacted pursuant to Title 75.

 (1) Hearing officers are ''issuing authorities'' only for purposes of conducting summary trials, accepting pleas, conducting trials in absentia, setting collateral, and conducting post-trial proceedings, including but not limited to, establishing or re-establishing payment plans, monitoring compliance with payment plans, holding warrant hearings, and performing additional duties as may be identified by local rule.

 (2) Hearing officers shall not conduct summary trials or hearings if there is a likelihood that imprisonment will be imposed at the conclusion of a summary traffic proceeding.

 (B) The Philadelphia Municipal Court Traffic Division by local rule shall establish the qualifications and educational requirements for the position of Traffic Division hearing officer.

 (C) The Code of Conduct for Employees of the Unified Judicial System shall be applicable to the Philadelphia Municipal Court Traffic Division hearing officers.

Comment

 The position of ''Philadelphia Municipal Court Traffic Division hearing officer'' was established by legislation in 2013 as part of the transfer of jurisdiction and functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court Traffic Division. See Act 17 of 2013, P. L. 55, No. 17 (June 19, 2013) and 42 Pa.C.S. § 102, 325, 1121, 1127, 1302, 1321.

 Official Note: New Rule 1036 adopted     , 2014, effective     , 2014.

Committee Explanatory Reports:

 Report explaining proposed new Rule 1036 concerning hearing officers of the Philadelphia Municipal Court Traffic Division published for comment at 44 Pa.B. 777 (February 8, 2014).

Rule 1037. Appeal from Summary Conviction.

 (A) When a defendant appeals after the entry of a guilty plea or a conviction in any Traffic Division summary proceeding [in the Philadelphia Traffic Court], upon the filing of the transcript and other papers by the Traffic [Court] Division, the Court of Common Pleas may schedule a status or settlement conference prior to the de novo summary trial.

 (1) In the event the attorney for the Commonwealth or a designee and the defendant reach a negotiated plea, the plea may be entered before a Trial Commissioner and, upon approval by a judge of the Court of Common Pleas, the negotiated sentence will be recorded.

 (2) In the event a negotiated plea is not approved by the court, the case shall be heard de novo by a judge of the Court of Common Pleas sitting without a jury.

 (B) The attorney for the Commonwealth may appear and assume charge of the prosecution. When no attorney appears on behalf of the Commonwealth, the affiant may be permitted to ask questions of any witness who testifies.

 (C) In appeals from Traffic Division summary proceedings [in the Philadelphia Traffic Court], the law enforcement officer who observed the alleged offense must appear and testify. The failure of a law enforcement officer to appear and testify shall result in the dismissal of the charges unless:

 (1) the defendant waives the presence of the law enforcement officer in open court on the record;

 (2) the defendant waives the presence of the law enforcement officer by filing a written waiver signed by the defendant and defense counsel, or the defendant if proceeding pro se, with the clerk of courts; or

 (3) the trial judge determines that good cause exists for the law enforcement officer's unavailability and grants a continuance.

 (D) If the defendant fails to appear for the trial de novo,

 (1) when the appeal is from a mandatory sentence of imprisonment, the Court of Common Pleas judge shall dismiss the appeal, enter judgment in the Court of Common Pleas on the judgment of the Traffic [Court] Division judge, and issue a bench warrant and a commitment for the defendant. Execution of the sentence shall commence immediately upon defendant's arrest; and

 (2) in all other cases, the Common Pleas Court judge shall dismiss the appeal and enter the judgment in the Court of Common Pleas on the judgment of the Traffic [Court judge] Division judge or hearing officer.

 (E) If the defendant withdraws the appeal, the Court of Common Pleas judge shall enter the judgment in the Court of Common Pleas on the judgment of the Traffic [Court judge] Division judge or hearing officer.

 (F) At the time of sentencing, the Court of Common Pleas judge shall:

 (1) if the defendant's sentence includes a fine or costs and the defendant has the financial means to pay the amount in a single remittance, the judge shall instruct the defendant to make the payment at the Philadelphia [Traffic Court] Municipal Court Traffic Division. If the defendant is without the financial means to pay the amount in a single remittance, the judge shall instruct the defendant to contact the [Philadelphia Traffic Court] Traffic Division to establish an installment payment plan;

 (2) advise the defendant of the right to appeal to the Superior Court within 30 days of the imposition of sentence, and that, if an appeal is filed, the execution of sentence will be stayed and the judge may set bail;

 (3) if a sentence of imprisonment has been imposed, direct the defendant to appear for the execution of sentence on a date certain unless the defendant files a notice of appeal within the 30-day period; and

 (4) issue a written order imposing sentence, signed by the judge. The order shall include the information specified in paragraphs (F)(1)—(F)(3), and a copy of the order shall be given to the defendant and to the Traffic Court.

 (G) After sentence is imposed by the Court of Common Pleas judge, and either after the expiration of the time to file an appeal to the appellate courts, or, if a sentence of imprisonment has been imposed, after the execution of the sentence of imprisonment, the case shall be returned to the [Philadelphia Traffic Court] Traffic Division for the collection of any outstanding fines and costs and for all other appropriate action.

Comment

 This rule was adopted in 2009 to provide the procedures for appeals from the [Philadelphia Traffic Court] Traffic Division to the Court of Common Pleas of the First Judicial District. Except as provided in this rule, the procedures of Rules 460, 461 and 462, governing appeals for a trial de novo in summary cases, shall apply to summary case appeals [in the Philadelphia Traffic Court] Traffic Division.

 For purposes of this rule, ''judgment'' means the determination of guilty and any sentence imposed on the defendant.

 The date upon which payment is due upon a sentence of a fine or costs ordinarily will be 30 days following imposition of sentence.

 Official Note: Rule 1037 adopted October 16, 2009, effective February 1, [2009] 2010; amended     , 2014, effective     , 2014.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed amendments concerning the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published for comment at 44 Pa.B. 777 (February 8, 2014).

REPORT

Proposed New Pa.R.Crim.P. 1036, Proposed Amendment to Pa.Rs.Crim.P. 105, 1000, 1031—1035, and 1037, and Proposed Revision of the Comments to Pa.Rs.Crim.P. 103, 140, 141, 431, 441, 462 1001, 1002, and 1030

Rule Changes in Light of the Abolition of the Philadelphia Traffic Court

 On June 19, 2013, Act 17 of 2013 was signed into law by the Governor, effectively abolishing the Philadelphia Traffic Court.¹ By the terms of the Act, most of its functions have been transferred to a new Traffic Division of the Philadelphia Municipal Court. Given that there are numerous statewide rules that discuss procedures in the Traffic Court, correlative changes will be necessary. Additionally, certain structural changes, particularly the creation of the new office of hearing officer of the Municipal Court Traffic Division, will need to be incorporated into the rules.

 The Committee has determined that the following rules listed below would need to be modified. Following each rule title is a brief description of the nature of the proposed changes:

103 (Definitions)

 Would add a cross-reference to the Comment to new Rule 1036 regarding the limited definition of hearing officer as an ''issuing authority'' under that rule;

105 (Local Rules)

 Would change the court's name in the rule text;

140 (Contempt Proceedings Before Magisterial District Judges, Pittsburgh Magistrates Court Judges, and Philadelphia Traffic Court Judges)

 Would add language to the Comment regarding the abolition of the Traffic Court and its impact on contempt powers;

141 (Appeals from Contempt Adjudications Before Magisterial District Judges, Pittsburgh Magistrates Court Judges, and Philadelphia Traffic Court Judges)

 Would add language to the Comment regarding the abolition of the Traffic Court and its impact on contempt powers;

431 (Procedures When Defendant Arrested with Warrant)

 Would change the court's name in a cross-reference in the Comment;

441 (Procedures Following Arrest Without Warrant)

 Would change the court's name in a cross-reference in the Comment;

462 (Trial De Novo)

 Would change the court's name in a cross-reference in the Comment;

Chapter 10 (Rules of Criminal Procedure For the Philadelphia Municipal Court and the Philadelphia Traffic Court)

 Would change the title of the Chapter;

1000 (Scope of Rules)

 Would change the court's name in the rule text;

1001 (Disposition of Criminal Cases—Philadelphia Municipal Court)

 Would change the court's name in the Comment;

1002 (Procedures in Summary Cases)

 Would change the court's name in the Comment;

Chapter 10 Part B (Philadelphia Traffic Court Procedures)

 Would change the title of the Part;

1030 (Scope of Summary Traffic Court Rules)

 Would add a Comment provision regarding the abolition of the Traffic Court and transfer of function and jurisdiction to the Traffic Division;

1031 (Institution of Proceedings in Summary Traffic Cases)

 Would reorganize the structure of paragraph (A) of the rule to remove references to the Administrative Judge of Traffic Court;

1032 (Pleas in Response to Citation)

 Would change the court's name in the rule text;

1033 (Procedures When Defendant Arrested with Warrant)

 Would change the court's name and the terminology of the presiding officers in the rule text and Comment;

1034 (Collateral)

 Would change the court's name and the terminology of the presiding officers in the rule text and Comment;

1035 (Appointment of Counsel)

 Would change the court's name and the terminology of the presiding officers in the rule text;

1036 (Traffic Court Hearing Officers)

 New rule describing appointment, qualifications, and duties of Traffic Division Hearing Officers

1037 (Appeals from Summary Convictions)

 Would change the court's name and the terminology of the presiding officers in the rule text and Comment;

 The majority of the proposed rule changes are correlative changes to terminology resulting from the transfer of the Traffic Court functions to the Traffic Division of the Philadelphia Municipal Court.

 As noted above, the greatest change is the creation of the office of hearing officer of the Philadelphia Municipal Court Traffic Division. The position was created by Act 17 as the primary officer for proceedings before the Traffic Division. Therefore, current Rule 1036, which provides for the hearing officers of the Traffic Court, would be rescinded and replaced by a new Rule 1036 that would provide for the appointment, qualifications, and duties of Traffic Division Hearing Officers. Hearing officers would be defined as ''issuing authorities'' for the limited purposes of the proceedings in the Traffic Division but would be precluded from conducting hearings in which there is a likelihood of imprisonment. Consistent with Act 17, hearing officers may be either lawyers or non-lawyers who would be governed by the Code of Conduct for Employees of the Unified Judicial System. Also consistent with Act 17, the responsibility for hearing officer training would be developed by local rule.²

 

[Pa.B. Doc. No. 14-271. Filed for public inspection February 7, 2014, 9:00 a.m.]

_______

¹  As the Philadelphia Traffic Court is provided in the Pennsylvania Constitution, a constitutional amendment will be necessary before the Traffic Court is formally abolished in its entirety. That process is ongoing as of this publication.

²  The Committee anticipates that the First Judicial District may need to adopt additional local rules to accommodate the transfer of the functions. These local rules would be subject to the Committee's approval pursuant to Rule 105.