PART I. GENERAL [234 PA. CODE CHS. 100 AND 6000] Amendments to Rules 106, 108 and 6003 Governing Private Complaints; No. 207; Doc. No. 2 [26 Pa.B. 1688] Order Per Curiam:
Now, this 22nd day of March, 1996, upon the recommendation of the Criminal Procedural Rules Committee, the proposal having been published before adoption at 24 Pa.B. 4348 (August 27, 1994), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 643--644), 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 Rules of Criminal Procedure 106 and 6003 are hereby amended, and the revised Comment to Rule of Criminal Procedure 108 is approved, as follows.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 1996.
Annex A TITLE 234. RULES OF CIVIL PROCEDURE PART I. GENERAL CHAPTER 100. PROCEDURE IN COURT CASES PART II. COMPLAINT PROCEDURES Rule 106. Approval of Private Complaints.
(a) When the affiant is not a law enforcement officer [and the offense(s) charged include(s) a misdemeanor or felony which does not involve a clear and present danger to any person or to the community], the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove it without unreasonable delay.
(b) If the attorney for the Commonwealth:
(1) approves the complaint, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority;
(2) disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. [Thereafter the affiant may file the complaint with a judge of a court of common pleas for approval or disapproval; or] Thereafter, the affiant may petition the court of common pleas for review of the decision.
[(3) does not approve or disapprove within a reasonable period of time, the affiant may file the complaint on a separate form with the issuing authority, noting thereon that a complaint is pending before an attorney for the Commonwealth. The issuing authority shall determine whether a reasonable period has elapsed, and, when appropriate, shall defer action to allow the attorney for the Commonwealth an additional period of time to respond.]
Official Note: Original Rule 105 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 105 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 133 and amended September 18, 1973, effective January 1, 1974; amended January 23, 1975, effective September 1, 1975; amended October 22, 1981, effective January 1, 1982; rescinded November 9, 1984, effective January 2, 1985. Present Rule 133 adopted November 9, 1984, effective January 2, 1985; renumbered Rule 106 and amended August 9, 1994, effective January 1, 1995; amended March 22, 1996, effective July 1, 1996.
Comment For the contents of a private complaint, see Rule 104.
The 1996 amendment to paragraph (a) deleted the exception for misdemeanors or felonies ''involving a clear and present danger to any person or to the community.'' In all cases where the affiant is not a law enforcement officer, the complaint must be submitted for approval or disapproval by the attorney for the Commonwealth.
The district attorney may ''transmit'' the complaint to the issuing authority pursuant to subparagraph (b)(1) by returning it to the affiant for delivery.
Committee Explanatory Reports:
Report explaining the August 9, 1994 amendments published at 22 Pa.B. 6 (January 4, 1992); Final Report published with the Court's Order at 24 Pa.B. 4342 (August 27, 1994).
Final Report explaining the March 22, 1996 amendments published with the Court's Order at 26 Pa.B. 1690 (April 13, 1996).
Rule 108. Procedure Following Submission of Complaint to Issuing Authority.
* * * * * Official Note: Original Rule 106, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 106 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 134 and amended September 18, 1973, effective January 1, 1974; amended January 23, 1975, effective September 1, 1975; amended April 26, 1979, effective July 1, 1979; Comment revised April 24, 1981, effective July 1, 1981; amended October 22, 1981, effective January 1, 1982; amended November 9, 1984, effective January 2, 1985; renumbered Rule 108 and amended August 9, 1994, effective January 1, 1995; Comment revised March 22, 1996, effective July 1, 1996.
Comment * * * * * Under paragraph (a)(2), the method by which the district attorney approves and transmits a private complaint pursuant to Rule 106(b)(1) may be determined by local practice.
Private complaints must first be submitted to the district attorney for approval or disapproval under Rule 106. For private complaint procedures in summary cases, see Rule 66.
[The specifications as to which private complaints must first be submitted to the district attorney are set forth in Rule 106(b) and in the Comment to Rule 51. If the district attorney has failed to approve a private complaint as required, only a judge of a court of common pleas can issue a summons or warrant based on the complaint. See Rule 106(b)(2).]
Paragraph (a)(2) also applies when a district attorney elects to proceed under Rule 107 (Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth--Local Option).
Committee Explanatory Reports:
Report explaining the August 9, 1994 amendments published at 22 Pa.B. 6 (January 4, 1992); Final Report published with the Court's Order at 24 Pa.B. 4342 (August 27, 1994).
Final Report explaining the March 22, 1996 Comment revision published at 26 Pa.B. 1690 (April 13, 1996).
CHAPTER 6000. RULES OF CRIMINAL PROCEDURE FOR THE MUNICIPAL COURT OF PHILADELPHIA Rule 6003. Procedure in Non-Summary Municipal Court Cases.
A. INITIATION OF CRIMINAL PROCEEDINGS
* * * * * (2) [When a private complaint which has been submitted to the office of the District Attorney pursuant to Rule 106 is not approved or is not acted upon within a reasonable period, the affiant may file the complaint with a judge of the Municipal Court, who may take action that a common pleas judge is authorized to take under that rule.]
Private Complaints
(a) When the affiant is not a law enforcement officer, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove it without unreasonable delay.
(b) If the attorney for the Commonwealth:
(i) approves the complaint, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority;
(ii) disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter, the affiant may petition the court of common pleas for review of the decision.
* * * * * C. SUMMONS AND ARREST WARRANT PROCEDURES
When a Municipal Court judge finds grounds to issue process based on a complaint, the judge shall:
(1) issue a summons and not a warrant of arrest when the offense charged is punishable by [a sentence to] imprisonment for a term of not more than 1 year, except as set forth in subsection C(2);
(2) issue a warrant of arrest when:
(a) the offense charged is punishable by [a sentence to] imprisonment for a term of more than 5 years;
* * * * * Official Note: Original Rule 6003 adopted June 28, 1974, effective July 1, 1974; amended January 26, 1977, effective April 1, 1977; amended December 14, 1979, effective April 1, 1980; amended July 1, 1980, effective August 1, 1980; amended October 22, 1981, effective January 1, 1982; Comment revised December 11, 1981, effective July 1, 1982; amended January 28, 1983, effective July 1, 1983; amended February 1, 1989, effective July 1, 1989; rescinded August 9, 1994, effective January 1, 1995. New Rule 6003 adopted August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; amended March 22, 1996, effective July 1, 1996.
Comment Former Rule 6003 was rescinded and replaced by new Rule 6003 in 1994. Although Rule 6003 has been extensively reorganized, only subsections D(1) and D(2)(c) reflect changes in the procedures contained in the former rule.
The 1996 amendments to paragraph A(2) align the procedures for private complaints in non-summary Municipal Court cases with the Statewide procedures for private complaints in Rule 106 (Approval of Private Complaints). In all cases where the affiant is not a law enforcement officer, the complaint must be submitted to the attorney for the Commonwealth for approval or disapproval.
* * * * * Committee Explanatory Reports:
Report explaining the provisions of the new rule published at 22 Pa.B. 6 (January 4, 1992). Final Report published with the Court's Order at 24 Pa.B. 4342 (August 27, 1994).
Final Report explaining the September 13, 1995 amendments published with the Court's Order at 25 Pa.B. 4116 (September 30, 1995).
Final Report explaining the March 22, 1996 amendments published with the Court's Order at 26 Pa.B. 1690 (April 13, 1996).
FINAL REPORT Private Criminal Complaints: Clarifying Amendments to Pa.Rs.Crim.P. 106 and 6003;
Comment Revision to Pa.R.Crim.P. 108Introduction On March 22, 1996, upon the Recommendation of the Criminal Procedural Rules Committee, the Supreme Court adopted amendments to Pa.Rs.Crim.P. 106 and 6003, and approved a Rule 108 Comment revision.1 The Committee proposal which resulted in these changes was published in 1994. Included in that proposal and in the Committee's first Recommendation to the Court were amendments to Rules 106 and 6003, which, in part, deleted the provisions for review in the court of common pleas of a district attorney's disapproval of a private complaint, Pa.Rs.Crim.P. 106(b)(2) and 6003A(2). See 24 Pa.B. 4348 (August 27, 1994). The Court declined to accept the Recommendation with these deletions, but asked the Committee whether there were other aspects of the Recommendation which we wanted the Court to consider separately. After an extensive discussion, the Committee submitted a revised Recommendation, which the Court has adopted, effective July 1, 1996. The purpose of this Final Report is to explain the changes contained in that Recommendation.
Discussion I. Background
The Committee's recent reexamination of the function of private criminal complaints in Pennsylvania arose during a discussion of the evolving case law on Rule 106(b) and the prosecutor's discretionary charging function in the private complaint context. See, e.g., Commonwealth v. Cutler, 636 A.2d 164 (Pa. Super 1993) and Commonwealth v. Benz, 565 A.2d 764 (Pa. 1989). Our examination of the private complaint in Pennsylvania focused on (1) a review of the shift in responsibility for the charging function in Pennsylvania from the police to the attorney for the Commonwealth, and (2) the separate but related development of procedural rules governing private complaints.
A. The Charging Function
In Pennsylvania, the initial charging decision was historically left to the police, although most states had placed the charging function with the prosecutor. La Fave, The Prosecutor's Discretion in the United States, 18 Am.J.Comp.Law 532 (1970). The vesting of the charging function with the attorney for the Commonwealth has been fairly recent. In the early 1980's, Rules of Criminal Procedure were promulgated to make it clear that the attorney for the Commonwealth, and not the police, has the discretion to determine whether and what to charge. See Pa.R.Crim.P. 101A (Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth--Local Option). See also Bordenkircher v. Hayes, 434 U. S. 357 (1978) (the decisions whether to prosecute and what offense to charge rest entirely within the prosecutro's discretion) and In re Petition of Piscanio, 344 A.2d 658, 660--661 (Pa. Super. 1975) (district attorney obliged not only to prosecute crime but also to determine when and whether charges should be brought).
B. Development of Rules of Procedure Governing Private Complaints
The development of rules government private complaints predated the assumption of the charging decision by the attorney for the Commonwealth, and the first rules only served to effectuate common law ''private prosecutions.'' See, e.g., Simpson v. Montgomery Ward, 46 A.2d 674 (Pa. 1946) and Altman v. Standard Refrigerator, 173 A. 411 (Pa. 1934). Former Pa.Rs.Crim.P. 105 and 106, adopted in 1964, provided that a private citizen could appear before a magistrate, swear to a complaint against another private citizen, and a summons or arrest warrant could issue without the prior approval of a police officer or an attorney for the Commonwealth. These early rules generated ongoing criticism from lawyers, judges, and law enforcement officers because private complaint procedures were too often used as an inexpensive alternative to civil remedies for debt collection. In response to this criticism, the Committee revaluated the rules governing private complaints in the 1970's. At that time, a number of Committee members argued that the private complaint rules should be eliminated completely, in view of the national trend giving prosecutors unfettered charging discretion, the misuse of private complaints, and the availability of civil remedies. Other members, however, felt strongly that some form of private complaint procedure should be retained, despite the abuses, and present Rule 106 reflects the compromise reached to accommodate these disparate views.
II. Explanation of Changes
In light of the Court's directive that common pleas review of the district attorney's decision to disapprove a private complaint should be retained in Rule 106, see the Introduction, the Committee reexamined the original proposal and agreed that the rules governing private complaints should be revised to eliminate unnecessary procedures and to make it clear that: (1) in all court cases, without exception, private complaints must be submitted to the attorney for the Commonwealth for approval or disapproval; and (2) when a private complaint is disapproved, the private complainant must ''petition for review'' of the district attorney's decision in the court of common pleas, rather than ''filing'' the complaint with the court of common pleas.
A. Rule 106 (Approval of Private Complaints)
Deletion of paragraph (a) exception. We have eliminated the exception provided in paragraph (a) for those private complaints charging a crime which involves a ''clear and present danger to any person or to the community'' because we feel that such circumstances warrant review by an attorney for the Commonwealth.
Amendment to paragraph (b)(2). Paragraph (b)(2) has been amended as follows: if the attorney for the Commonwealth
disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. [Thereafter, the affiant may file the complaint with a judge of a court of common pleas for approval or disapproval; or] Thereafter, the affiant may petition the court of common pleas for review of the decision.
This amendment is intended to underscore the distinction between the district attorney's charging decision and judicial review of that decision. The amendment eliminates the ''filing'' language that can be construed as permitting a common pleas judge to improperly engage in a de novo review of the complaint itself, and makes it clear that the judge's function is to review the propriety of the district attorney's discretionary decision to disapprove the complaint.
Deletion of paragraph (b)(3). Paragraph (b)(3) has been deleted because unreasonable delays in district attorneys' screening of private complaints do not appear to be a problem.
B. Revision of Comment to Rule 108 (Procedure Following Submission of Complaint to Issuing Authority)
The present Comment referring to Rule 106 has been deleted and a new paragraph added which states that all private complaints must be submitted to the district attorney for approval or disapproval pursuant to Rule 106. We have also included a cross-reference to Rule 66 (Procedure following Filing of Complaint--Issuance of Summons), which addresses private complaint procedures in summary cases.
C. Amendments to Rule 6003 (Procedures in Non-Summary Municipal Court Cases)
Paragraph A(2) has been completely rewritten and a correlative Comment added to align private complaint procedures in Philadelphia Municipal Court with the procedures in Rule 106.
[Pa.B. Doc. No. 96-581. Filed for public inspection April 12, 1996, 9:00 a.m.] _______
1 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 Committee's explanatory Reports.
