481 Order promulgating new rule 589; amending rules 502, 542, 543, 546, 551, 622, and 648; and approving the revision of the comments to rules 313, 400, 504, 560, 585, 586, 587, and 1010; no. 342 criminal procedural rules; doc. no. 2

Title 234--RULES OF CRIMINAL PROCEDURE

[234 PA. CODE CHS. 3--6 AND 10]

Order Promulgating New Rule 589; Amending Rules 502, 542, 543, 546, 551, 622, and 648; and Approving the Revision of the Comments to Rules 313, 400, 504, 560, 585, 586, 587, and 1010; No. 342 Criminal Procedural Rules; Doc. No. 2

[36 Pa.B. 1385]

Order

Per Curiam:

   Now, this 9th day of March, 2006, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 29 Pa.B. 2444 (May 8, 1999), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 727), and a Final Report to be published with this Order:

   It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that:

   (1)  New Rule of Criminal Procedure 589 is promulgated;

   (2)  Rules of Criminal Procedure 502, 542, 543, 546, 551, 622, and 648 are amended;

   (3)  the revision of the Comments to Rules of Criminal Procedure 313, 400, 504, 560, 585, 586, 587, and 1010 is approved,

   all in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective September 1, 2006.

   Madame Justice Baldwin did not participate in the decision of this matter.

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

CHAPTER 3.  ACCELERATED REHABILITATIVE DISPOSITION (ARD)

PART B.  Court Cases

Rule 313.  Hearing, Manner of Proceeding.

*      *      *      *      *

Comment

*      *      *      *      *

   In any case in which a summary offense has been joined with the misdemeanor or felony charges that have been disposed of by the defendant's acceptance into an ARD program, if the summary offense has not been disposed of prior to the ARD hearing, the trial judge may not remand the summary offense to the issuing authority for disposition, but must dispose of the summary offense at the ARD hearing. The Crimes Code §  110, 18 Pa.C.S. §  110, Commonwealth v. Caufman, 541 Pa. 299, 662 A.2d 1050 (1995), and Commonwealth v. Campana, 455 Pa. 622, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808 (1973), on remand, 454 Pa. 233, 314 A.2d 854 (1974), may require in a particular case that the trial judge have the defendant execute a ''Campana'' waiver prior to disposing of the summary offense at the ARD hearing.

   When bail is terminated upon acceptance of the defendant into the ARD program, such action constitutes a ''full and final disposition'' for purposes of Rule 534 (Duration of Obligation) and Rule 535 (Receipt of Deposit; Return of Deposit).

   Official Note:  Rule 179 approved May 24, 1972, effective immediately; amended April 10, 1989, effective July 1, 1989; 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 313 and amended March 1, 2000, effective April 1, 2001; Comment revised March 3, 2006, effective September 1, 2006.

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. [1477] 1478 (March 18, 2000).

   Final Report explaining the March 3, 2006 Comment revision concerning joinder of summary offenses with misdemeanor or felony charges published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).

CHAPTER 4.  PROCEDURES IN SUMMARY CASES

PART A.  Instituting Proceedings

Rule 400.  Means of Instituting Proceedings In Summary Cases.

*      *      *      *      *

Comment

*      *      *      *      *

   If one or more of the offenses charged is a misdemeanor, felony, or murder, the case is a court case (see Rule 103) and proceeds under Chapter 5 of the rules. [Any] Ordinarily, any summary offenses in such a case, if known at the time, must be charged in the same complaint as the higher offenses and must be disposed of as part of the court case. See [Crimes Code § 110, 18 Pa.C.S. § 110, and] Commonwealth v. Campana, 455 Pa. 622, 304 A.2d 432 ([Pa.] 1973), vacated and remanded, 414 U.S. 808 (1973), on remand, 454 Pa. 233, 314 A.2d 854 ([Pa.] 1974) (compulsory joinder rule) and Crimes Code § 110, 18 Pa.C.S. § 110. [But see Commonwealth v. Beatty, 455 A.2d 1194 (Pa. 1983); Commonwealth v. Taylor, 522 A.2d 37 (Pa. 1987); and Commonwealth v. Kresge, 464 A.2d 384 (Pa. Super. Ct. 1983) (no Section 110 violation when separate prosecutions involve offenses ''not within the jurisdiction of a single court''). See also Commonwealth v. Geyer, 687 A.2d 815 (Pa. 1996) (Section 110 applies to separate prosecution of two summary offenses within the jurisdiction of a single court).] See also Commonwealth v. Caufman, 541 Pa. 299, 662 A.2d 1050 (1995).

   In judicial districts in which there is a traffic court established pursuant to 42 Pa.C.S. §§ 1301--1342, when a summary motor vehicle offense within the jurisdiction of the traffic court arises in the same criminal episode as another summary offense or a misdemeanor, felony, or murder offense, see 42 Pa.C.S. § 1302 and Commonwealth v. Masterson, 275 Pa. Super. 166, 418 A.2d 664 (1980).

*      *      *      *      *

   Official Note:  Previous Rule 51 adopted January 23, 1975, effective September 1, 1975; Comment revised January 28, 1983, effective July 1, 1983; Comment revised December 15, 1983, effective January 1, 1984; rescinded July 12, 1985, effective January 1, 1986; and replaced by present Rules 3, 51, 52, 55, 60, 65, 70, 75, and 95. Present Rule 51 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; Comment revised February 1, 1989, effective July 1, 1989; Comment revised January 31, 1991, effective July 1, 1991; Comment revised January 16, 1996, effective immediately; Comment revised June 6, 1997, effective immediately; renumbered Rule 400 and amended March 1, 2000, effective April 1, 2001; Comment revised February 6, 2003, effective July 1, 2003; Comment revised August 7, 2003, effective July 1, 2004; Comment revised April 1, 2005, effective October 1, 2005; Comment revised March 3, 2006, effective September 1, 2006.

Committee Explanatory Reports:

*      *      *      *      *

   Final Report explaining the March 3, 2006 Comment revision concerning summary motor vehicle offenses published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).

CHAPTER 5.  PRETRIAL PROCEDURES IN COURT CASES

PART B.  Instituting Proceedings

Rule 502.  Instituting Proceedings in Court Cases.

   Criminal proceedings in court cases shall be instituted by:

   (1)  filing a written complaint; or

   (2)  an arrest without a warrant:

   (a)  when the offense is a murder, felony, or misdemeanor committed in the presence of the police officer making the arrest; or

   (b)  upon probable cause when the offense is a felony or murder; or

*      *      *      *      *

Comment

   Criminal proceedings in court cases are instituted by 1) the filing of a complaint, followed by the issuance of a summons or arrest warrant; or by 2) a warrantless arrest, followed by the filing of a complaint. For the definition of ''court case,'' see Rule 103.

   If the defendant is held for court, the attorney for the Commonwealth submits an information to the court (see Rule 225). See Section 8931(d) of the Judicial Code, 42 Pa.C.S. § 8931(d).

   There are only a few exceptions to this rule regarding the instituting of criminal proceedings in court cases. There are, for example, special proceedings involving a coroner or medical examiner. See Commonwealth v. Lopinson, 427 Pa. 552, 234 A.2d 552 ([Pa.] 1967), and Commonwealth v. Smouse, 406 Pa. Super. 369, 594 A.2d 666 ([Pa. Super.] 1991).

   Whenever a misdemeanor [or], felony, or murder is charged, even if [a] the summary offense is also charged in the same complaint, the case should proceed as a court case under Chapter 5. See Commonwealth v. Caufman, 541 Pa. 299, 662 A.2d 1050 (1995), and Commonwealth v. Campana, 455 Pa. 622, 304 A.2d 432 ([Pa.] 1973), vacated and remanded, 414 U.S. 808 (1973), on remand, 454 Pa. 233, 314 A.2d 854 (1974). In judicial districts in which there is a traffic court established pursuant to 42 Pa.C.S. §§ 1301--1342, when a summary motor vehicle offense within the jurisdiction of the traffic court arises in the same criminal episode as another summary offense or a misdemeanor, felony, or murder offense, see 42 Pa.C.S. § 1302 and Commonwealth v. Masterson, 275 Pa. Super. 166, 418 A.2d 664 (1980).

   [Subsection] Paragraph (2)(c) is intended to acknowledge those specific instances wherein the General Assembly has provided by statute for arrest without a warrant for a misdemeanor not committed in the presence of the arresting officer. It in no way attempts to modify the law of arrest where no specific statutory provision applies.

   For institution of criminal proceedings in summary cases, see Rule 400.

   Official Note:  Original Rule 102(1), (2), and (3), adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 102 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 101, and made applicable to court cases only, September 18, 1973, effective January 1, 1974; Comment revised February 15, 1974, effective immediately; amended June 30, 1975, effective September 1, 1975; Comment amended January 4, 1979, effective January 9, 1979; paragraph (1) amended October 22, 1981, effective January 1, 1982; Comment revised July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; Comment revised January 31, 1991, effective July 1, 1991; Comment revised August 12, 1993, effective September 1, 1993; amended August 9, 1994, effective January 1, 1995; Comment revised January 16, 1996, effective immediately; renumbered Rule 502 and amended March 1, 2000, effective April 1, 2001; Comment revised March 3, 2006, effective September 1, 2006.

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. [1477] 1478 (March 18, 2000).

   Final Report explaining the March 3, 2006 changes to the third paragraph of the Comment published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).

PART B(1).  Complaint Procedures

Rule 504.  Contents of Complaint.

*      *      *      *      *

Comment

   This rule sets forth the required contents of all complaints whether the affiant is a law enforcement officer, a police officer, or a private citizen. When the affiant is a private citizen, the complaint must be submitted to an attorney for the Commonwealth for approval. See Rule 506. When the district attorney elects to proceed under Rule 507 (Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth), the police officer must likewise submit the complaint for approval by an attorney for the Commonwealth.

   Ordinarily, whenever a misdemeanor, felony, or murder is charged, any summary offense in such a case, if known at the time, should be charged in the same complaint, and the case should proceed as a court case under Chapter 5 Part B. See Commonwealth v. Caufman, 541 Pa. 299, 662 A.2d 1050 (1995) and Commonwealth v. Campana, 455 Pa. 622, 304 A.2d 432 (Pa. 1973), vacated and remanded, 414 U.S. 808 (1973), on remand, 454 Pa. 233, 314 A.2d 854 (1974) (compulsory joinder rule). In judicial districts in which there is a traffic court established pursuant to 42 Pa.C.S. §§ 1301--1342, when a summary motor vehicle offense within the jurisdiction of the traffic court arises in the same criminal episode as another summary offense or a misdemeanor, felony, or murder offense, see 42 Pa.C.S. § 1302 and Commonwealth v. Masterson, 275 Pa. Super. 166, 418 A.2d 664 (1980).

   Paragraph (8) requires the affiant who prepares the complaint to indicate on the complaint whether criminal laboratory services are requested in the case. This information is necessary to alert the [district justice] magisterial district judge, the district attorney, and the court that the defendant in the case may be liable for a criminal laboratory user fee. See 42 Pa.C.S. § 1725.3 [, which] that requires [that] a defendant to be sentenced to pay a criminal laboratory user fee in certain specified cases when laboratory services are required to prosecute the case.

   Official Note:  Original Rule 104 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 104 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 132 September 18, 1973, effective January 1, 1974; amended October 22, 1981, effective January 1, 1982; amended November 9, 1984, effective January 2, 1985; amended July 25, 1994, effective January 1, 1995; renumbered Rule 104 and Comment revised August 9, 1994, effective January 1, 1995; renumbered Rule 504 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised March 3, 2006, effective September 1, 2006.

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. [1477] 1478 (March 18, 2000).

   Final Report explaining the March 3, 2006 Comment revision published with the Court's Order at 36 Pa.B. 1392 (March 25 , 2006).

PART D.  Proceedings in Court Cases Before Issuing Authorities

Rule 542.  Preliminary Hearing; Continuances.

*      *      *      *      *

   (D)  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)  CONTINUANCES

*      *      *      *      *

Comment

*      *      *      *      *

   Paragraph (C)(3) is intended to make clear that the defendant may call witnesses at a preliminary hearing only to negate the existence of a prima facie case, and not merely for the purpose of discovering the Commonwealth's case. The modification changes the language of the rule interpreted by the Court in Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 ([Pa.]1975). This amendment was made to preserve the limited function of a preliminary hearing.

*      *      *      *      *

   In cases in which summary offenses are joined with misdemeanor, felony, or murder charges, pursuant to paragraph (D), 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 3, 2006, effective September 1, 2006.

Committee Explanatory Reports:

*      *      *      *      *

   Final Report explaining the March 3, 2006 amendments to paragraph (D) published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).

Rule 543.  Disposition of Case at Preliminary Hearing.

*      *      *      *      *

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

   (1)  if the issuing authority finds that the defendant did not receive notice, or 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[(D)](E)(2).

*      *      *      *      *

   (E)  If the Commonwealth does not establish a prima facie case of the defendant's guilt, and no application for a continuance is made and there is no reason for a continuance, the issuing authority shall dismiss the complaint.

   (F)  In any case in which a summary offense is joined with misdemeanor, felony, or murder charges:

   (1)  If the Commonwealth establishes a prima facie case pursuant to paragraph (B), the issuing authority shall not adjudicate or dispose of the summary offenses, but shall forward the summary offenses to the court of common pleas with the charges held for court.

   (2)  If the Commonwealth does not establish a prima facie case pursuant to paragraph (B), upon the request of the Commonwealth, the issuing authority shall dispose of the summary offense as provided in Rule 454 (Trial In Summary Cases).

   (3)  If the Commonwealth withdraws all the misdemeanor, felony, and murder charges, the issuing authority shall dispose of the summary offense as provided in Rule 454 (Trial In Summary Cases).

Comment

   Paragraph (C) [was amended in 1983 to reflect] 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 the defendant did not receive notice or 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)(1). For the procedures when a preliminary hearing is continued, see Rule 542[(D)] (E).

*      *      *      *      *

   When the defendant fails to appear after notice and without good cause, paragraph (D)(2)(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), and (C); or, if the issuing authority determines it necessary, continue the case to a date certain as provided in Rule 542[(D)] (E); 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 still should send the required notice of the new date to the defendant, thus providing the defendant with another opportunity to appear.

*      *      *      *      *

   Rule 542(D) 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.

   Under paragraph (F)(2), in those cases in which the Commonwealth does not intend to refile the misdemeanor, felony, or murder charges, the Commonwealth may request that the issuing authority dispose of the summary offenses. In these cases, if all the parties are ready to proceed, the issuing authority should conduct the summary trial at that time. If the parties are not prepared to proceed with the summary trial, the issuing authority should grant a continuance and set the summary trial for a date and time certain.

   In those cases in which a prima facie case is not established at the preliminary hearing, and the Commonwealth does not request that the issuing authority proceed on the summary offenses, the issuing authority should dismiss the complaint, and discharge the defendant unless there are outstanding detainers against the defendant that would prevent the defendant's release.

   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 3, 2006, effective September 1, 2006.

Committee Explanatory Reports:

*      *      *      *      *

   Final Report explaining the March 3, 2006 amendments adding new paragraphs (E) and (F) published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).

Rule 546.  Dismissal Upon Satisfaction or Agreement.

   When a defendant is charged [with a misdemeanor] in a case in which the most serious offense charged is a misdemeanor(s), the issuing authority may dismiss the case upon a showing that:

*      *      *      *      *

Comment

*      *      *      *      *

   A dismissal of the case pursuant to this rule is a dismissal of all the charges, including any summary offenses that have been joined with the misdemeanor(s) and are part of the case. See the Comment to Rule 502 (Instituting Proceedings In Court Cases) (when a misdemeanor, felony, or murder is charged with a summary offense in the same complaint, the case should proceed as a court case under Chapter 5 Part B). See also Rule 551 (Withdrawal Of Charges Pending Before Issuing Authority) that permits the attorney for the Commonwealth to withdraw one or more of the charges.

   For dismissal upon satisfaction or agreement in summary cases, see Rule 458.

   For court dismissal upon satisfaction or agreement, see Rule 586.

   Official Note:  Formerly Rule 121, 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 145 and amended September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; amended April 18, 1997, effective July 1, 1997; renumbered Rule 546 and amended March 1, 2000, effective April 1, 2001; amended March 3, 2006, effective September 1, 2006.

Committee Explanatory Reports:

*      *      *      *      *

   Final Report explaining the March 3, 2006 amendments to the first paragraph and the Comment published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).

Rule 551.  Withdrawal of [Prosecution] Charges Pending Before Issuing Authority.

   In any court case pending before an issuing authority, the attorney for the Commonwealth, or his or her designee, may withdraw [the prosecution] one or more of the charges. The withdrawal shall be in writing.

Comment

   This rule was amended in 1995 to make it clear that only the attorney for the Commonwealth or a designee has the authority to withdraw a prosecution.

   In any case in which a summary offense is joined with the misdemeanor, felony, or murder charges:

(1)  if only some of the charges are withdrawn, and the remainder are held for court, the joined summary offense, unless withdrawn, must be forwarded to the court of common pleas as required by Rule 543(F); and

(2)  if all of the misdemeanor, felony, and murder charges are withdrawn pursuant to this rule, the issuing authority must dispose of the summary offense as provided in Rule 454 (Trial in Summary Cases).

   Official Note:  Rule 151 adopted September 18, 1973, effective January 1, 1974; amended August 14, 1995, effective January 1, 1996; renumbered Rule 551 March 1, 2000, effective April 1, 2001; amended March 3, 2006, effective September 1, 2006.

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. [1477] 1478 (March 18, 2000).

   Final Report explaining the March 3, 2006 amendments to the title and rule published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).

PART E.  Informations

Rule 560.  Information: Filing, Contents, Function.

*      *      *      *      *

Comment

*      *      *      *      *

   In any case in which there are summary offenses joined with the misdemeanor, felony, or murder charges that are held for court, the attorney for the Commonwealth must include the summary offenses in the information. See Commonwealth v. Hoffman, 406 Pa. Super. 583, 594 A.2d 772 (1991).

   When there is an omission or error of the type referred to in paragraph (C), the information should be amended pursuant to Rule 564.

   See Rule 543(D) for the procedures when a defendant fails to appear for the preliminary hearing. When the preliminary hearing is held in the defendant's absence and the case is held for court, the attorney for the Commonwealth should proceed as provided in this rule.

   Official Note:  Rule 225 adopted February 15, 1974, effective immediately; Comment revised January 28, 1983, effective July 1, 1983; amended August 14, 1995, effective January 1, 1996; renumbered Rule 560 and amended March 1, 2000, effective April 1, 2001; Comment revised April 23, 2004, effective immediately; Comment revised August 24, 2004, effective August 1, 2005; Comment revised March 3, 2006, effective September 1, 2006.

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. [1477] 1478 (March 18, 2000).

*      *      *      *      *

   Final Report explaining the March 3, 2006 Comment revision concerning joinder of summary offenses with misdemeanor, felony, or murder charges published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).

PART F(1).  Motion Procedures

Rule 585.  Nolle Prosequi.

*      *      *      *      *

Comment

   Section 8932 of the Judicial Code, 42 Pa.C.S. § 8932, prohibits the district attorney from entering a nolle prosequi without court approval at any time after the filing of an information.

   Before an information is filed, the attorney for the Commonwealth may withdraw one or more of the charges by filing a notice of withdrawal with the clerk of courts. See Rule 561(A). Upon the filing of an information, any charge in the complaint not listed on the information will be deemed withdrawn by the attorney for the Commonwealth. See Rule 561(B). After the information is filed, court approval is required before a nolle prosequi may be entered on a charge listed therein. See 42 Pa.C.S. § 8932.

   In any case in which a summary offense is joined with a misdemeanor, felony, or murder charge: (1) the judge may order a nolle prosequi on all the charges including the summary offense; and (2) if the judge has ordered a nolle prosequi on all the misdemeanor, felony, or murder charges pursuant to this rule, the judge may not remand the summary offense to the issuing authority for disposition, but must dispose of the summary offense in the court of common pleas as required by Rule 589 (Pretrial Disposition of Summary Offenses Joined With Misdemeanor, Felony, or Murder Charges).

   Official Note:  Rule 314 adopted June 30, 1964, effective January 1, 1965; Comment revised February 15, 1974, effective immediately; renumbered Rule 313 and Comment revised June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978 [,]; Comment revised January 28, 1983, effective July 1, 1983; amended August 12, 1993, effective September 1, 1993; amended August 14, 1995, effective January 1, 1996; renumbered Rule 585 and amended March 1, 2000, effective April 1, 2001; Comment revised March 3, 2006, effective September 1, 2006.

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. [1477] 1478 (March 18, 2000).

   Final Report explaining the March 3, 2006 Comment revision concerning joinder of summary offenses with misdemeanor, felony, or murder charges published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).

Rule 586.  Court Dismissal Upon Satisfaction or Agreement.

*      *      *      *      *

Comment

   This rule applies only to courts of common pleas. Neither justices of the peace, [district justices] magisterial district judges, Philadelphia Municipal Court judges, [Pittsburgh Police Magistrates,] nor any other issuing authority may dismiss a case under this rule, but rather only as provided in Rule 546.

   This rule sets forth concisely the criteria a defendant must satisfy before the court has the discretion to order dismissal under this rule.

   If a summary offense is joined with a misdemeanor, felony, or murder charge, and therefore is part of the court case, a dismissal of the case pursuant to this rule may include a dismissal of the summary offense. See the Comment to Rule 502 (Instituting Proceedings in Court Cases).

   Official Note:  Rule 315 adopted June 30, 1964, effective January 1, 1965; amended September 18, 1973, effective January 1, 1974; renumbered Rule 314 and amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; amended January 28, 1983, effective July 1, 1983; renumbered Rule 586 and amended March 1, 2000, effective April 1, 2001; Comment revised March 3, 2006, effective September 1, 2006.

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. [1477] 1478 (March 18, 2000).

   Final Report explaining the March 3, 2006 Comment revision concerning joinder of summary offenses with misdemeanor, felony, or murder charges published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).

Rule 587.  Motion for Dismissal.

*      *      *      *      *

Comment

   Cf. Pa.R.J.A. 1901 concerning termination of inactive cases.

   See Rule 575 for the procedures governing motions and answers.

   In any case in which a summary offense is joined with a misdemeanor, felony, or murder charge, and therefore is part of the court case, a dismissal of the prosecution pursuant to paragraph (A) would include the dismissal of the summary offense. See the Comment to Rule 502 (Instituting Proceedings in Court Cases).

   Official Note:  [Rule] Rule 316 adopted June 30, 1964, effective January 1, 1965; amended June 8, 1973, effective July 1, 1973; amended February 15, 1974, effective immediately; renumbered Rule 315 and amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; Comment revised January 28, 1983, effective July 1, 1983; amended August 12, 1993, effective September 1, 1993; renumbered Rule 587 and amended March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004; Comment revised March 3, 2006, effective September 1, 2006.

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. [1477] 1478 (March 18, 2000)

*      *      *      *      *

   Final Report explaining the March 3, 2006 Comment revision concerning joinder of summary offenses with misdemeanor, felony, or murder charges published with the Court's Order at 36 Pa.B. 1392 (March 25 2006).

Rule 589.  Pretrial Disposition of Summary Offenses Joined with Misdemeanor, Felony, or Murder Charges.

   (A)  In any case in which a summary offense is joined with a misdemeanor, felony, or murder charge, and therefore is part of the court case, when there is a dismissal of all misdemeanor, felony, and murder charges, unless the Commonwealth appeals the disposition, the trial judge shall dispose of the summary offense.

   (B)  In no event shall the trial judge remand the summary offense to the issuing authority for disposition.

Comment

   In any case in which a summary offense is joined with a misdemeanor, felony, or murder charge, and therefore is part of the court case, when an appeal of a pretrial disposition of the misdemeanor, felony, or murder charge is taken, disposition of the summary offense should be delayed pending the appeal. See Rules of Appellate Procedure 311 (Interlocutory Appeals as of Right), 903 (Time for Appeal), and 1701 (Effect of Appeal Generally).

   Notwithstanding the provisions of this rule, a dismissal of the prosecution pursuant to Rule 586 (Court Dismissal Upon Satisfaction or Agreement) may include the dismissal of the summary offense.

   For the procedures for nolle prosequi see Rule 585 (Nolle Prosequi).

   Official Note:  Adopted March 3, 2006, effective September 1, 2006.

Committee Explanatory Reports:

   Final Report explaining the new rule published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).

CHAPTER 6.  TRIAL PROCEDURES
IN COURT CASES

PART B.  Non-Jury Procedures

Rule 622.  Time for Court Action Following Non-Jury Trial.

   (A)  A verdict shall be rendered in all non-jury cases within 7 days after trial.

   (B)  In any case in which a summary offense is joined with the misdemeanor, felony, or murder charges that were tried before the trial judge, the trial judge shall render a verdict on the summary offense, and impose sentence if the judge finds the defendant guilty of the summary offense, even in cases in which the judge has dismissed or found the defendant not guilty on the misdemeanor, felony, or murder charges.

Comment

   The 1993 amendment to this rule was prompted by the general revision of post-trial procedures reflected in large part by Rule 720 (Post-Sentence Procedures; Appeal). Before this amendment, Rule 622 was a hybrid. It contained time limits for decisions on several types of motions, and also contained a time limit for verdict in non-jury trials. As a result of the adoption of Rule 720, post-verdict motions for a new trial, for judgment of acquittal, and motions in arrest of judgment were moved to post-sentence under Rule 720. The procedures for a motion for judgment of acquittal after the jury is discharged without agreeing on a verdict were amended in 1993 and moved to Rule 608. Rule 622, as amended, only provides the time limit for verdict in a non-jury case.

   Pursuant to Rule 543 (Disposition of Case at Preliminary Hearing), in cases in which there are summary offenses that are joined with the misdemeanor, felony, or murder charges, the issuing authority is prohibited from adjudicating or disposing of the summary offenses, and must forward the summary offenses to the court of common pleas for disposition with the charges held for court. Therefore, when a judge is the trier of fact as to the misdemeanors, felonies, or murder pursuant to this rule, the judge may not remand the summary offense to the issuing authority, but must dispose of the summary offense together with the misdemeanor, felony, and murder.

   Official Note:  Formerly Rule 302 adopted June 30, 1964, effective January 1, 1965; renumbered Rule 1122 and moved to Chapter 1100, June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; amended January 28, 1983, effective July 1, 1983; amended March 22, 1993, effective as to cases in which trial commences on or after January 1, 1994; renumbered Rule 622 and Comment revised March 1, 2000, effective April 1, 2001; amended March 3, 2006, effective September 1, 2006.

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. [1477] 1478 (March 18, 2000).

   Final Report explaining the March 3, 2006 amendments concerning joinder of summary offenses with misdemeanor, felony, or murder charges published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).

PART C(2).  Conduct of Jury Trial

Rule 648.  Verdicts.

*      *      *      *      *

   (F)  If there is a summary offense joined with the misdemeanor, felony, or murder charge that was tried before the jury, the trial judge shall not remand the summary offense to the issuing authority. The summary offense shall be disposed of in the court of common pleas, and the verdict with respect to the summary offense shall be recorded in the same manner as the verdict with respect to the other charges.

   (G)  Before a verdict, whether oral or sealed, is recorded, the jury shall be polled at the request of any party. Except where the verdict is sealed, if upon such poll there is no concurrence, the jury shall be directed to retire for further deliberations.

Comment

   Paragraph (A) of the rule replaces the practice of automatically appointing the first juror chosen as foreman of the jury. Paragraphs (C), (D), and (E) serve only to codify the procedure where conviction or acquittal of one offense operates as a bar to a later trial on a necessarily included offense. Similarly, the rule applies to situations of merger and autrefois convict or acquit. No attempt is made to change the substantive law which would operate to determine when merger or any of the other situations arise. See, e.g., Commonwealth v. Comber, 374 Pa. 570, 97 A.2d 343 ([Pa.] 1953).

   Paragraph (F) provides for the disposition in the court of common pleas of any summary offense that is joined with the misdemeanor, felony, or murder charges that were tried before the jury. Under no circumstances may the trial judge remand the summary offense to the issuing authority, even in cases in which the defendant is found not guilty by the jury. See also Rule 543 (Disposition of Case at Preliminary Hearing).

   Paragraph [(F)] (G) provides for the polling of the jury and requires the judge to send the jury back for deliberations in accordance with Commonwealth v. Martin, 379 Pa. 587, 109 A.2d 325 ([Pa.] 1954). With respect to the procedure upon non-concurrence with a sealed verdict, see Rule 649(C).

   Although most references to indictments and indicting grand juries were deleted from these rules in 1993 because the indicting grand jury was abolished in all counties, see PA. CONST. art. I, § 10 and 42 Pa.C.S. § 8931(b), the reference was retained in this rule because there may be some cases still pending that were instituted prior to the abolition of the indicting grand jury.

   Official Note:  Rule 1120 adopted January 24, 1968, effective August 1, 1968; amended February 13, 1974, effective immediately; paragraph (E) amended to correct printing error June 28, 1976, effective immediately; paragraph (F) amended April 26, 1979, effective July 1, 1979; amended August 12, 1993, effective September 1, 1993; renumbered Rule 648 and amended March 1, 2000, effective April 1, 2001; amended March 3, 2006, effective September 1, 2006.

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. [1477] 1478 (March 18, 2000).

   Final Report explaining the March 3, 2006 amendments concerning joinder of summary offenses with misdemeanor, felony, or murder charges published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).

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

PART A.  Philadelphia Municipal Court Procedures

Rule 1010.  Procedure on Appeal.

*      *      *      *      *

Comment

   In any case in which there are summary offenses joined with the misdemeanor charges that are the subject of the appeal, the attorney for the Commonwealth must include the summary offenses in the information. See Commonwealth v. Speller, 311 Pa. Super. 569, 458 A.2d 198 (1983).

   Official Note:  Rule 6010 adopted December 30, 1968, effective January 1, 1969; amended July 1, 1980, effective August 1, 1980; amended August 28, 1998, effective immediately; renumbered Rule 1010 March 1, 2000, effective April 1, 2001; Comment revised March 3, 2006, effective September 1, 2006.

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. [1477] 1478 (March 18, 2000).

   Final Report explaining the March 3, 2006 Comment revision concerning joinder of summary offenses with misdemeanor charges published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).

FINAL REPORT¹

New Pa.R.Crim.P. 589 (Pretrial Disposition of Summary Offenses Joined with Misdemeanor or Felony Charges); amendments to Pa.Rs.Crim.P. 502, 542, 543, 546, 551, 622, and 648; and revision of the Comments to Pa.Rs.Crim.P. 313, 400, 504, 560, 585, 586, 587, and 1010

Joinder of Summary Offenses with Misdemeanor, Felony, or Murder Charges

   On March 9, 2006, effective September 1, 2006, upon the recommendation of the Criminal Procedural Rules Committee, the Court adopted new Pa.R.Crim.P. 589, amended Rules of Criminal Procedure 502, 542, 543, 546, 551, 622, and, 648, and approved the revision of the Comments to Rules of Criminal Procedure 313, 400, 504, 560, 585, 586, 587, and 1010. These rule changes, which are the culmination of a number of years of work by the Committee, clarify the procedures for handling cases in which a summary offense is joined with misdemeanor, felony, or murder charges both when the case is before the issuing authority and after the case is held for court.

I.  INTRODUCTION

   The question of how to handle cases in which a summary offense is joined with misdemeanor, felony, or murder charges (''joined summary offense'') has been raised a number of times with the Committee in correspondence from members of the bench and bar, and more recently in inquiries the Committee is receiving from the Common Pleas Case Management System (CPCMS). The correspondents have indicated that there is a great deal of diversity statewide in the procedures employed for handling summary offenses that are joined with misdemeanor, felony, or murder charges, even among judges and magisterial district judges within the same judicial districts, and that this lack of uniformity is confusing for members of the bench and bar. According to the correspondents, the problems with the lack of uniformity arise throughout the criminal justice process--in the context of an accelerated rehabilitative disposition (''ARD'') program; when a case is within the jurisdiction of the minor judiciary, both at and following the preliminary hearing; and after a case is held for court in pretrial and trial proceedings. The correspondents asked the Committee to consider specifically (1) the impact that the joined summary offenses might have on the defendant's eligibility for ARD, and (2) whether there should be one uniform procedure for handling the summaries (a) when a defendant is accepted into an ARD program; (b) at the preliminary hearing; and (c) when the case is held for court.

   The Committee reviewed the rules, the various procedures being used statewide, and the case law. The Committee's research, as well as the members' experiences, confirmed what the correspondents had noted--there are widespread variations in the procedures from judicial district to judicial district, and even from judge to judge within judicial districts, and this lack of uniformity is creating a great deal of confusion for members of the minor judiciary, the judges and clerks in the courts of common pleas, members of the bar, and defendants. Furthermore, the obvious cause of this lack of uniformity is that there are no statewide rules that establish clear procedures, and the case law offers little guidance. In view of these considerations, the Committee agreed that the criminal justice system would be benefited by rules that establish a uniform procedure for handling these joined cases.

   In developing the proposal, the Committee noted that, pursuant to the Rule 103 definition of ''court case,''² once a summary offense is joined with misdemeanor, felony, or murder charges, the joined summary offense becomes part of the ''court case,'' and, therefore, the joined summary offense should remain with and be treated as part of the ''court case.'' In addition, the Committee agreed that to promote judicial economy and the efficient administration of justice, when the case is before the minor judiciary and the circumstances warrant the disposition of the summary offense alone, the issuing authority should be responsible for the disposition. However, once a case that includes a joined summary offense has been held for court and has been forwarded to the court of common pleas, when the circumstances warrant the disposition of the summary offense alone, it makes no sense to return the summary offense to the minor judiciary, and therefore the judge in the court of common pleas (''CP judge'') should dispose of the summary offense. These points formed the Committee's guiding principles as we worked through the rules.

II.  DISCUSSION OF RULE CHANGES

   The Committee approached this project by examining the rules in groupings consistent with the ''chapter'' organization of the rules: ARD; preliminary proceedings when the case is before the minor judiciary; pretrial proceedings after the case is held for court; trial procedures in the court of common pleas; and procedures in Philadelphia Municipal Court.

A.  ARD Cases:  Rule 313

   A number of the questions posed to the Committee concerned the handling of joined summary offenses in court cases in which the defendant is potentially eligible for ARD, and seem to fall into two broad categories. First, if the defendant is going to be admitted into ARD on the misdemeanor or felony charge, how should the summary offense be handled? Second, what is the effect of the joined summary offense on ARD eligibility if the defendant pleads guilty to the summary offense or if the CP judge finds the defendant guilty of the summary offense. Would these ''convictions'' be considered by the district attorney as a bar to admitting the defendant into ARD? We also considered whether these ''convictions'' would be a bar to future prosecution if the defendant failed to complete the ARD program.

   Proceeding with the Committee's basic premise that cases with joined summary offenses are ''court cases'' within the Rule 103 definition, the Committee reached the following conclusions. First, there would be no reason why a CP judge could not include the summary offense in the ARD disposition. Second, if the summary offense is not included in the ARD disposition, and the summary offense has not been disposed of prior to the ARD hearing, the CP judge may not remand the summary offense to the issuing authority for disposition, but must dispose of the summary offense at the ARD hearing. Third, by virtue of the charging function and the broad discretion given to district attorneys in deciding ARD eligibility, see, e.g., Commonwealth v. Benn, 544 Pa. 144, 675 A.2d 261 (1996), the district attorney has discretion to determine which offenses may be considered for ARD. The district attorney may nolle pros or withdraw the summary offense, or may recommend the inclusion of the summary offense in the ARD program. Fourth, if the summary offense is disposed of by a guilty plea or a guilty verdict, there may be a ''Campana'' or Crimes Code Section 110 issue that should be addressed.

   Based on these considerations, the Committee ultimately agreed that the ARD issue should be addressed by revising the Comment to Rule 313 (Hearing, Manner of Proceeding) to make it clear that if the summary offense has not been disposed of by the time of the ARD hearing, then the CP judge may not remand the summary offense to the issuing authority, but must dispose of the summary offense at the ARD hearing, and that it may be necessary for the CP judge to have the defendant execute a ''Campana'' waiver prior to disposing of the summary offense to avoid any problems should the defendant fail to complete the ARD program on the misdemeanor or felony charge.

B.  Proceedings Before Issuing Authority

   1.  Preliminary Hearings:  Rules 542 and 543

   The second consideration for the Committee concerned how the joined summary offenses should be handled at the preliminary hearing. The Committee examined Rules 542 (Preliminary Hearing; Continuances) and 543 (Disposition of Case at Preliminary Hearing), and agreed that to further the ''court case'' premise, the issuing authority should dispose of the joined summary offense only in those cases in which the Commonwealth fails to establish a prima facie case and the Commonwealth requests that the issuing authority dispose of the summary offense. This would occur, for example, when the Commonwealth does not intend to refile the misdemeanor, felony, or murder charge; or the Commonwealth withdraws all the misdemeanor, felony, and murder charges. To accomplish this, a new paragraph (D) has been added to Rule 542 that provides:

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).

   Correlative to the new Rule 542(D) provision, a new paragraph (F) has been added to Rule 543. Paragraph (F)(1) implements the joined summary offense policy by providing that in any case in which the Commonwealth establishes a prima facie case, the issuing authority is to forward the summary offense to the court of common pleas with the other charges held for court. Paragraphs (F)(2) and (F)(3) set forth the two exceptions noted above: when the Commonwealth does not intend to refile the misdemeanor, felony, or murder charge; or the Commonwealth withdraws all the misdemeanor, felony, and murder charges. The Rule 543 Comment has been revised to amplify these changes.

   In addition, a new paragraph (E) has been added to Rule 543 to address cases in which the Commonwealth does not establish a prima facie case. A new Comment provision makes it clear that, when the complaint is dismissed, (1) the issuing authority should discharge the defendant unless there are outstanding detainers preventing the defendant's release, and (2) the Commonwealth may refile some or all of the charges, including the summary offense.

   2.  Dismissal or Withdrawal of Charges:  Rules 546 and 551

   Two other issues arose concerning the joined summary offenses when the case is before the issuing authority. First, how should the joined summary be handled when the case is going to be dismissed pursuant to Rule 546 (Dismissal Upon Satisfaction or Agreement)? The Committee agreed that, in this situation, the joined summary offense is part of the court case and should be dismissed with the misdemeanor. Although this reasoning seems apparent on the face of the rule, in view of the ongoing confusion in this area, the introductory paragraph to the rule has been amended to make the ''same case'' concept clear, with further explanation in the Rule 546 Comment. The Comment also has been revised by the addition of a cross-reference to Rule 551 alerting the parties and the courts that there is another option besides dismissing the entire case.

   Rule 551 (Withdrawal of Prosecution Before Issuing Authority), which provides the Commonwealth with the option to withdraw some or all of the charges, presents a slightly different issue. The Committee reasoned that, if only some of the charges are withdrawn and the remainder are held for court, the joined summary offense, unless withdrawn, would be forwarded to the court of common pleas as required by Rule 543(F). However, if all the misdemeanor, felony, and murder charges are withdrawn and only the summary offense remains, the Committee did not see any utility in requiring the summary offense to be forwarded to the court of common pleas, and agreed that the issuing authority should dispose of the summary offense in the same manner that any summary offense is disposed of pursuant to Rule 454 (Trial in Summary Cases). To make this concept clear, the Rule 551 Comment has been revised by the addition of a paragraph explaining the process and cross-referencing Rule 543(F).

   As part of the discussion of Rule 551, some members commented that the provision ''may withdraw the prosecution'' in the text of the rule could be confusing since the Commonwealth is not required to withdraw all the charges, but may withdraw some of the charges and proceed on the rest of the charges. In view of this, the phrase ''the prosecution'' has been replaced with ''one or more of the charges'' in the text of the rule and with ''charges pending'' in the title to the rule.

C.  Pretrial Proceedings After Case Held for Court

   1.  Filing Information:  Rule 560

   When the case is held for court and the case includes a joined summary offense, the Committee agreed that the summary offense should be charged in the information. Although there is case law on point, see Commonwealth v. Hoffman, 406 Pa. Super. 583, 594 A.2d 772 (1991), some members suggested that because the rule does not specifically require this procedure even though paragraph (5) requires a statement of the elements of the offense charged, the joined summary offense is not uniformly being included in the information. To ensure the joined summary offenses are properly included in the information, a short cautionary explanation with a citation to Hoffman, supra, has been added to the Rule 560 Comment.

   2.  Pretrial Disposition of Joined Summary:  New Rule 589, and Rules 585, 586, and 587

   The Committee next considered the handling of the joined summary offense in the context of the pretrial proceedings under Chapter 5, after the case is held for court and the information is filed. The handling of the joined summary offense only becomes an issue when there is a dismissal or a nolle prosequi of all the misdemeanor, felony, or murder charges. We agreed that, consistent with the ''court case'' concept and to promote judicial economy, the CP judge must dispose of the remaining joined summary offense, and may not return the summary offense to the issuing authority for disposition. However, the Committee noted that none of the existing rules provide an appropriate place to clarify the procedures for the pretrial handling of joined summary offenses. Accordingly, new Rule 589 (Pretrial Disposition of Summary Offenses Joined with Misdemeanor or Felony Charges) has been adopted to specifically address this matter. The new rule is divided into two paragraphs. Paragraph (A) provides that ''when there is a dismissal of all the misdemeanor, felony, and murder charges, unless the Commonwealth appeals the disposition, the trial judge shall dispose of the summary offense.'' Paragraph (B) makes it clear that the judge may not remand the summary offense.

   In discussing this new rule and the treatment of joined summary offenses, several members expressed concern about the potential for double jeopardy issues or conflicts with the Rules of Appellate Procedure if the summary offense is disposed of in cases in which the Commonwealth appeals the pretrial disposition of any of the misdemeanor, felony, or murder charges. From the Committee's review of the Appellate Rules of Procedure, the members agreed that, pursuant to Rule of Appellate Procedure 1701 (Effect of Appeal Generally), any appeal by the Commonwealth of a pretrial disposition postpones further action on the case pending the appeal, and this postponement would include the disposition of any joined summary offenses. The Committee also noted that there are several pretrial proceedings from which the Commonwealth would be permitted to appeal, such as a granting of a suppression motion. Although none of the Criminal Rules addressing pretrial court case procedures set forth procedures for the time period pending an appeal, the members opined that the bench and bar are cognizant of these procedures. Notwithstanding this generally accepted knowledge, the Committee agreed the addition to the Rule 589 Comment of a cross-reference to Rules of Appellate Procedure 311, 903, and 1701 with a further elaboration that the disposition of the joined summary offenses would be delayed pending the Commonwealth's appeal would aide the bench and bar. The Comment also includes cross-references to Rules 585 (Nolle Prosequi) and 586 (Court Dismissal Upon Satisfaction or Agreement).

   Correlative revisions have been made to the Comments to Rules 585, 586, and 587 (Motion for Dismissal) providing clarifications about the handling of the joined summary offense within the context of each rule. The Rule 585 Comment revision explains that (1) the CP judge may order a nolle prosequi on all the charges including the joined summary offense, and (2) when the nolle prosequi is of all the misdemeanor, felony, or murder charges, the CP judge must dispose of the joined summary offense. The Rule 586 Comment revision explains that the dismissal of the case may include a dismissal of the joined summary offense. Finally, the Rule 587 Comment revision explains that a dismissal of the prosecution includes a dismissal of the joined summary offense.

D.  Trial Procedures:  Rules 622 and 648

   The last procedural area concerning joined summary offenses the Committee discussed was trials in the court of common pleas, both when there is a jury and when the judge is the trier of fact. Again reaffirming the principle that, consistent with the ''court case'' concept and to promote judicial economy, the joined summary offense should be handled by the CP judge and not remanded to the issuing authority the Committee looked at Rules 622 (Time for Court Action Following Non-Jury Trial) and 648 (Verdicts). Although neither rule specifically addresses the handling of the joined summary offense, the Committee thought that these rules are the best place in Chapter 6 to clarify the procedure. Accordingly, Rule 622 has been amended by adding a new paragraph (B) that requires the CP judge to dispose of the joined summary offense. Similarly, Rule 648 has been amended by adding a new paragraph (F) that specifically prohibits the CP judge from remanding the joined summary offense to the issuing authority, no matter how the misdemeanor, felony, or murder charges are disposed, and requires that the summary offense be disposed of in the court of common pleas. Finally, a cross-reference to Rule 543 has been added to the Comments of both rules.

E.  Correlative Changes

   1.  Summary Motor Vehicle Offenses:  Rules 400, 502, and 504

   During the Committee's consideration of the issue of joined summary offenses, several members questioned whether summary motor vehicle offenses in jurisdictions with traffic courts would be treated in the same manner as other summary offenses. This issue generated a great deal of discussion, particularly following the 2002 changes to 18 Pa.C.S. § 110(1)(ii).³ As initially developed, the Committee had proposed the Comments to Rules 400 (Means of Instituting Proceedings in Summary Cases), 502 (Instituting Proceedings in Court Cases), and 504 (Contents of Complaint) be revised to provide direction with regard to the charging of summary motor vehicle offenses when there are other summary offenses or misdemeanor, felony, or murder charges arising from the same criminal episode in jurisdictions that have traffic courts. Upon further reflection, the Committee agreed this proposal could be mischievous given the uncertainty created by the amendments to Section 110. Accordingly, the Comments to Rules 400, 502, and 504 have been revised merely to refer to the traffic court enabling statutes, 42 Pa.C.S. §§ 1301--1342, and to Commonwealth v. Masterson, 275 Pa. Super. 166, 418 A.2d 664 (1980), (a disposition in the Philadelphia Traffic Court is not a bar to a subsequent prosecution on a related misdemeanor or felony in common pleas court because, relying on the exclusive jurisdiction, there is no single court that could try both offenses).⁴ This approach (1) alerts the bench and bar to the distinction between (a) the charging of summary vehicle code offenses that arise in the same criminal episode as other summary offenses or misdemeanor, felony, or murder charges in jurisdictions that have traffic courts established pursuant to 42 Pa.C.S. §§ 1301--1342 and (b) the charging of these summary vehicle code offenses in all other jurisdictions, (2) recognizes the current state of the law, and (3) leaves the implications of the amendments to Section 110 as applied to traffic court jurisdiction to the interpretation of the courts.

   2.  Philadelphia Municipal Court:  Rule 1010

   As a result of the Committee's research into joinder, we noted that the Superior Court in Commonwealth v. Speller, 311 Pa. Super. 569, 458 A.2d 198 (1983), held that when there is a non-traffic summary offense joined with a misdemeanor in a Philadelphia Municipal Court case, upon appeal of the disposition in the Municipal Court, the district attorney is required to include the summary offense in the information the district attorney is required to prepare pursuant to Rule 1010 (Procedure on Appeal). Because the joined summary is coming to the Court of Common Pleas in a slightly different manner than thejoined summaries in other court cases, the Rule 1010 Comment has been revised to include a cross-reference to Speller, supra, to acknowledge this variation.

[Pa.B. Doc. No. 06-481. Filed for public inspection March 24, 2006, 9:00 a.m.]

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