849 Order amending Rules 542 and 1003 of the Rules of Criminal Procedure; no. 429 criminal procedural rules doc.
Title 234—RULES OF CRIMINAL PROCEDURE [ 234 PA. CODE CHS. 5 AND 10 ] Order Amending Rules 542 and 1003 of the Rules of Criminal Procedure; No. 429 Criminal Procedural Rules Doc. [43 Pa.B. 2560]
[Saturday, May 11, 2013]Order Per Curiam
And Now, this 25th day of April, 2013, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. No. 103(a)(3) in the interests of justice and efficient administration, 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 Pennsylvania Rules of Criminal Procedure 542 and 1003 are amended in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective June 1, 2013.
Annex A TITLE 234. RULES OF CRIMINAL PROCEDURE CHAPTER 5. PRETRIAL PROCEDURES IN
COURT CASESPART D. Proceedings in Court Cases Before
Issuing AuthoritiesRule 542. Preliminary Hearing; Continuances.
* * * * * (E) Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.
* * * * * Comment * * * * * Paragraph (E) was [added to the rule in 2011 to clarify] amended in 2013 to reiterate that traditionally our courts have not applied the law of evidence in its full rigor in proceedings such as preliminary hearings, especially with regard to the use of hearsay to establish the elements of a prima facie case. See the Pennsylvania Rules of Evidence generally, but in particular, Article VIII. Accordingly, hearsay, whether written or oral, may establish the elements [enumerated in paragraph (E)] of any offense. [That enumeration is not comprehensive, and hearsay is admissible to establish other matters as well.] The presence of witnesses to establish these elements is not required at the preliminary hearing. But compare Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (Pa. 1990) (plurality) (disapproving reliance on hearsay testimony as the sole basis for establishing a prima facie case). See also Rule 1003 concerning preliminary hearings in Philadelphia Municipal Court.
If the case is held for court, the normal rules of evidence will apply at trial.
For the procedures when a defendant fails to appear for the preliminary hearing, see Rule 543(D).
In cases in which summary offenses are joined with misdemeanor, felony, or murder charges, pursuant to paragraph (F), during the preliminary hearing, the issuing authority is prohibited from proceeding on the summary offenses, [including the taking of evidence on the summary offenses,] or adjudicating or disposing of the summary offenses except as provided in Rule 543(F).
For the contents of the transcript, see Rule 135.
See Chapter 5 Part E for the procedures governing indicting grand juries. Under these rules, a case may be presented to the grand jury instead of proceeding to a preliminary hearing. See Rule 556.2.
Official Note: Former Rule 141, previously Rule 120, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970; revised January 31, 1970, effective May 1, 1970; renumbered Rule 141 and amended September 18, 1973, effective January 1, 1974; amended June 30, 1975, effective July 30, 1975; amended October 21, 1977, effective January 1, 1978; paragraph (D) amended April 26, 1979, effective July 1, 1979; amended February 13, 1998, effective July 1, 1998; rescinded October 8, 1999, effective January 1, 2000. Former Rule 142, previously Rule 124, adopted June 30, 1964, effective January 1, 1965, suspended effective May 1, 1970; present rule adopted January 31, 1970, effective May 1, 1970; renumbered Rule 142 September 18, 1973, effective January 1, 1974; amended October 22, 1981, effective January 1, 1982; effective date extended to July 1, 1982; amended July 12, 1985, effective January 1, 1986, effective date extended to July 1, 1986; rescinded October 8, 1999, effective January 1, 2000. New Rule 141, combining former Rules 141 and 142, adopted October 8, 1999, effective January 1, 2000; renumbered Rule 542 and Comment revised March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended March 9, 2006, effective September 1, 2006; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; amended January 27, 2011, effective in 30 days; amended June 21, 2012, effective in 180 days; amended October 1, 2012, effective July 1, 2013; amended April 25, 2013, effective June 1, 2013.
Committee Explanatory Reports:
* * * * * Final Report explaining the May 1, 2007 amendments deleting the certified mail service requirement from paragraph (E)(2)(b) published with the Court's Order at 37 Pa.B. 2503 (June 2, 2007).
Court's Order of January 27, 2011 adding new paragraphs (D) and (E) concerning hearsay at the preliminary hearing published at 41 Pa.B. 834 (February 12, 2011).
Final Report explaining the June 21, 2012 revision of the Comment concerning indicting grand juries published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Final Report explaining the October 1, 2012 amendments to paragraph (G)(1) concerning computation of time and (G)(2) concerning notice of continuance published with the Court's Order at 42 Pa.B. 6629 (October 20, 2012).
Final Report explaining the April 25, 2013 amendments to paragraph (E) concerning hearsay at preliminary hearings published with the Court's Order at 43 Pa.B. 2562 (May 11, 2013).
CHAPTER 10. RULES OF CRIMINAL PROCEDURE FOR THE PHILADELPHIA MUNICIPAL COURT AND THE PHILADELPHIA TRAFFIC COURT PART A. Philadelphia Municipal Court Procedures Rule 1003. Procedure in Non-Summary Municipal Court Cases.
* * * * * (E) PRELIMINARY HEARING IN CASES CHARGING A FELONY
(1) Except as provided in paragraphs (E)(2) and (E)(3), in cases charging a felony, the preliminary hearing in Municipal Court shall be conducted as provided in Rule 542 (Preliminary Hearing; Continuances) and Rule 543 (Disposition of Case at Preliminary Hearing).
(2) At the preliminary hearing, the issuing authority shall determine whether there is a prima facie case that an offense has been committed and that the defendant has committed it.
(a) Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established.
(b) Hearsay evidence shall be sufficient to establish any element of an offense including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.
(3) If a prima facie case is not established on any felony charges, but is established on any misdemeanor or summary charges, the judge shall remand the case to Municipal Court for trial.
(F) ACCEPTANCE OF BAIL PRIOR TO TRIAL
The Clerk of Courts shall accept bail at any time prior to the Municipal Court trial.
Comment * * * * * Paragraphs (D)(3)(d)(iii) and (E) make it clear that, with some exceptions, the procedures in Municipal Court for both preliminary hearings and cases in which the defendant fails to appear for the preliminary hearing are the same as the procedures in the other judicial districts.
[Paragraph (E)(2)(a) permits the use of hearsay at the preliminary hearing to establish certain elements of specific crimes. But compare Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (1990) (plurality) (disapproving reliance on hearsay testimony as the sole basis for establishing a prima facie case). Nothing in this rule is intended to prohibit the use of hearsay at the preliminary hearing as otherwise permitted by case law or other authority. See, e.g., the Pennsylvania Rules of Evidence generally, but in particular, Article VIII.
Paragraph (E)(2)(b) provides that hearsay, whether written or oral, may establish the elements enumerated in paragraph (E)(2). That enumeration is not comprehensive, and hearsay is admissible to establish other matters as well. The presence of witnesses to establish these elements is not required at the preliminary hearing.]
Paragraph (E) was amended in 2013 to reiterate that traditionally our courts have not applied the law of evidence in its full rigor in proceedings such as preliminary hearings, especially with regard to the use of hearsay to establish the elements of a prima facie case. See the Pennsylvania Rules of Evidence generally, but in particular, Article VIII. Accordingly, hearsay, whether written or oral, may establish the elements of any offense. The presence of witnesses to establish these elements is not required at the preliminary hearing. But compare Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (1990) (plurality) (disapproving reliance on hearsay testimony as the sole basis for establishing a prima facie case). See also Rule 542.
For purposes of modifying bail once bail has been set by a common pleas judge, see Rules 529 and 536.
Official Note: Original Rule 6003 adopted June 28, 1974, effective July 1, 1974; amended January 26, 1977, effective April 1, 1977; amended December 14, 1979, effective April 1, 1980; amended July 1, 1980, effective August 1, 1980; amended October 22, 1981, effective January 1, 1982; Comment revised December 11, 1981, effective July 1, 1982; amended January 28, 1983, effec-tive July 1, 1983; amended February 1, 1989, effective July 1, 1989; rescinded August 9, 1994, effective January 1, 1995. New Rule 6003 adopted August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; amended March 22, 1996, effective July 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; amended August 28, 1998, effective immediately; renumbered Rule 1003 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended August 24, 2004, effective August 1, 2005; amended August 15, 2005, effective February 1, 2006; amended April 5, 2010, effective April 7, 2010; amended January 27, 2011, effective in 30 days; amended June 21, 2012, effective in 180 days; Comment revised July 31, 2012, effective November 1, 2012; amended April 25, 2013, effective June 1, 2013.
Committee Explanatory Reports:
* * * * * Court's Order [adopting the] of January 27, 2011, [amendments to] amending paragraph (E) concerning hearsay and reducing felony charges at preliminary hearing published at 41 Pa.B. 834 (February 12, 2011).
Final Report explaining the June 21, 2012 amendments to paragraph (D)(3)(d)(iii) concerning indicting grand juries published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Final Report explaining the July 31, 2012 revision of the Comment changing the citation to Rule 540(B) to Rule 540(C) published with the Court's Order at 42 Pa.B. 5340 (August 18, 2012).
Final Report explaining the April 25, 2013 amendments to paragraph (E) concerning hearsay published with the Court's Order at 43 Pa.B. 2562 (May 11, 2013).
FINAL REPORT1 Amendments to Pa.Rs.Crim.P. 542 and 1003 Hearsay at Preliminary Hearings On April 25, 2013, effective June 1, 2013, upon the recommendation of the Criminal Procedural Rules Committee, the Court adopted the amendment of Rules 542 (Preliminary Hearing; Continuances) and 1003 (Procedure in Non-Summary Municipal Court Cases) to (1) clarify that the use of hearsay at preliminary hearings is not limited to proof of the elements of property offenses; and (2) to remove language from the Rule 542 Comment that suggests the issuing authority may never take evidence of summary offenses during a preliminary hearing.
On January 27, 2011, the Court amended Rules of Criminal Procedure 542 and 1003 to provide that ''Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense requiring proof of the ownership of, non-permitted use of, damage to, or value of property.'' The Comments to both rules explain that the use of hearsay is not limited to these elements and offenses.
Since the adoption of these amendments, the Committee has received reports that the amendments to Rule 542 are being interpreted by some issuing authorities as limiting the use of hearsay in preliminary hearings to property offenses, despite the language in the Comment indicating that the rule was not intended to be thus limited. When the Comment language is raised to support the use of hearsay, these issuing authorities decline to be guided by the Comment noting that the clarifying language is not officially adopted as part of the rule.
This narrow interpretation is not consistent with the state of the law in Pennsylvania regarding the use of hearsay in preliminary hearings. See, e.g., Commonwealth v. Nieves, 876 A.2d 423 (Pa. Super. 2005) (an officer could testify both to his own knowledge of a drug sale and also to the hearsay statement of the buyer/informant about the delivery), Commonwealth v. Kohlie, 811 A.2d 1010 (Pa. Super. 2002) (use of a report of blood serum level at the preliminary hearing to show BAC level at the time of the accident was acceptable since it was to be supplemented by expert testimony at trial), Commonwealth v. Branch, 292 Pa. Super 425, 437 A.2d 748 (1981) (police officer's testimony regarding a witness' statement was admissible at the preliminary hearing when the witness would be available at trial and other non-hearsay evidence was presented at the hearing), and Commonwealth v. Rick, 366 A.2d 302 (Pa. Super. 1976) (along with evidence that the defendant drove his car into a tree, a hearsay lab report could be admitted to show the defendant's blood alcohol level). See also Pa.R.E. 101 Comment (''Traditionally, our courts have not applied the law of evidence in its full rigor in proceedings such as preliminary hearings, parole and probation hearings, extradition or rendition hearings and others . . .'').
The Committee concluded that a clarification in the rules regarding the use of hearsay evidence at preliminary hearings would be beneficial. The intent of these amendments are not to modify the procedures resulting from the amendments that were adopted in January, 2011, but to clarify the language of the rules to address reported problems arising from the misinterpretation of these changes.
Therefore, the phrase ''including, but not limited to'' has been added to the statement in Rule 542(E) that provides that hearsay evidence may be used to ''establish any element of an offense requiring proof of the ownership of, non-permitted use of, damage to, or value of property.'' A similar amendment has been added to Rule 1003(E)(1)(b) describing the use of hearsay evidence in felony preliminary hearings in the Philadelphia Municipal Court. Revisions also have been made to the Comments of both of these rules elaborating on these principles.
An additional revision is being made to the Comment to Rule 542 to remove the phrase ''the taking of evidence on the summary offenses'' from the penultimate paragraph of the Comment:
In cases in which summary offenses are joined with misdemeanor, felony, or murder charges, pursuant to paragraph (F), during the preliminary hearing, the issuing authority is prohibited from proceeding on the summary offenses, [including the taking of evidence on the summary offenses,] or adjudicating or disposing of the summary offenses except as provided in Rule 543(F).
This change is in response to a complaint that the prohibition described above would prevent the taking of evidence of summary offenses even when necessary to the proof of a joined misdemeanor or felony, for example, when a charge of homicide by vehicle requires the proof of any underlying traffic offense.
[Pa.B. Doc. No. 13-849. Filed for public inspection May 10, 2013, 9:00 a.m.] _______
