PART I. GENERAL [234 PA. CODE CHS. 100, 200, 6000 AND 9000] Proposed Amendments to Pa.Rs.Crim.P. 110 et seq. [26 Pa.B. 2307] Introduction In March 1995, the Committee published a Report explaining its proposal for the amendment of Pa.R.Crim.P. 141 (Preliminary Hearing) and the revision of the Comments to Pa.Rs.Crim.P. 119 (Requirements for Issuance) and 140 (Preliminary Arraignment) to clarify that, under the present rules, district justices may issue warrants when a defendant fails to appear for a preliminary hearing, and to recognize the various local practices for handling cases in which a defendant fails to appear for a preliminary hearing. See 25 Pa.B. 828 (March 11, 1995) and the Pennsylvania Reporter, 652 A.2d, No. 3 (March 17, 1995). As the result of the Committee's post-publication review of the proposal, and in light of the publication responses, the Committee is modifying its original proposal to establish one Statewide, uniform procedure for handling court cases in which a defendant has failed to appear for the preliminary hearing. This modified proposal includes amendments to Rules of Criminal Procedure 110, 112, 113, 140, 141, 142, 143, 146, 224, 225, 231, 9024, 6000, 6001, and 6003. The following Supplemental Report explains the proposed changes, and highlights the Committee's considerations in formulating these changes.
Please note that the Committee's Reports and Supplemental Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports or Supplemental Reports.
We would appreciate suggestions, comments, or objections concerning this proposal. Correspondence with the Committee should be forwarded to counsel: Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Criminal Procedural Rules Committee, P. O. Box 1325, Doylestown, PA 18901, no later than Friday, June 21, 1996.
By The Criminal Procedural Rules Committee
FRANCIS BARRY MCCARTHY,
ChairAnnex A TITLE 234. RULES OF CRIMINAL PROCEDURE PART I. GENERAL CHAPTER 100. PROCEDURE IN COURT CASES PART III. SUMMONS AND ARREST WARRANT PROCEDURES IN COURT CASES PART A. SUMMONS PROCEDURES Rule 110. Contents of Summons; [Time] Notice of Preliminary Hearing.
(A) Every summons in a court case shall command the defendant to appear before the issuing authority for a preliminary hearing at the place [stated therein] and on the date and at the time [fixed therein, which] stated on the summons. The date set for the preliminary hearing shall be not less than 20 days from the date of mailing the summons unless the issuing authority fixes an earlier date upon the request of the defendant or [his] the defendant's attorney with the consent of the affiant.
(B) The summons shall give the notice to the defendant:
(1) of the right to secure counsel of the defendant's choice and, for those who are without financial resources, of the right to assigned counsel in accordance with Rule 316;
(2) that bail will be set at the preliminary hearing; and
(3) that if the defendant fails to appear [at] on the date, and at the time and place specified [a warrant will be issued for the defendant's arrest.] on the summons, the case will be forwarded to the court of common pleas for further proceedings, unless, within 10 days after the date scheduled for the preliminary hearing, the defendant provides the issuing authority with good cause explaining his or her failure to appear.
(C) A copy of the complaint shall be attached to the summons.
Official Note: Original Rule 109[,] adopted June 30, 1964, effective January 1, 1965, suspended January 31, 1970, effective May 1, 1970. New Rule 109 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 110 and amended September 18, 1973, effective January 1, 1974; amended October 22, 1981, effective January 1, 1982; amended November 9, 1984, effective January 2, 1985; amended August 9, 1994, effective January 1, 1995; amended ______ , effective ______ .
Comment [Summonses in the] For the summons procedures in non-summary cases in the Municipal Court of Philadelphia [are governed generally by the Rules of Chapter 6000], see Rule 6003(C).
When a defendant appears for a preliminary hearing pursuant to a summons under this rule and is held for court, the issuing authority should require the defendant to submit to administrative processing and identification procedures (such as fingerprinting) as authorized by law. It is suggested that these processing procedures be made a condition of bail or release. See Criminal History Record Information Act, 18 Pa.C.S. § 9112.
See Rule 112 for service of the summons and proof of service.
See Rule 143(D) for the procedures when a defendant fails to appear for the preliminary hearing.
For the consequences of defects in a summons in a court case, see Rule 150.
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).
Supplemental Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2316 (May 18, 1996).
Rule 112. Service of Summons; Proof of Service.
(A) The summons shall be served upon the defendant by both first class mail and certified mail, return receipt requested. A copy of the complaint shall be served with the summons.
(B) Proof of service of the summons by mail shall include:
(1) a return receipt signed by the defendant, or
(2) if the certified mail is returned for whatever reason, the returned summons with the notation that the certified mail was undelivered and evidence that the first class mailing of the summons was not returned to the issuing authority within 15 days after mailing.
Official Note: Original Rule 111[,] adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 111 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 112 September 18, 1973, effective January 1, 1974; amended ______ , effective ______ .
Comment This rule was amended in 1996 to require that the summons be served by both first class mail and certified mail, return receipt requested.
Paragraph (B) sets forth what constitutes proof of service of the summons by mail in a court case for purposes of these rules.
Committee Explanatory Reports:
Supplemental Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2316 (May 18, 1996).
Rule 113. Procedure in Court Cases Following Issuance of Summons.
The defendant shall appear before the issuing authority for a preliminary hearing on the date, and at the time and place specified in the summons. If the defendant fails to appear, the issuing authority shall not issue a warrant for the arrest of the defendant and shall proceed as provided in Rule 143(D).
Official Note: Adopted September 18, 1973, effective January 1, 1974; amended August 9, 1994, effective January 1, 1995; amended ______ , effective ______ .
Comment For the proper time for the preliminary hearing, see Rule 110.
When a defendant appears for a preliminary hearing pursuant to a summons and is held for court, the issuing authority should require that the defendant submit to administrative processing and identification procedures (fingerprinting, for example,) as authorized by law. It is recommended that this requirement be made a condition of bail or release. See Criminal History Record Information Act, 18 Pa.C.S. § 9112.
This rule was amended in 1996 to reflect the new procedures governing cases in which a defendant fails to appear for the preliminary hearing. The issuing authority must proceed as provided in Rule 143(D) to determine whether the case should be forwarded to the court of common pleas for further proceedings, and in no case does the issuing authority issue a warrant for the arrest of the defendant who has failed to appear.
For the [procedure] procedures in non-summary cases in the Municipal Court [of Philadelphia], see Chapter 6000.
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).
Supplemental Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2316 (May 18, 1996).
PART IV. PROCEEDINGS BEFORE ISSUING AUTHORITIES Rule 140. Preliminary Arraignment.
[(a)] (A) ***
[(b)] (B) ***
[(c)] (C) ***
[(d)] (D) ***
[(e)] (E) Unless the preliminary hearing is waived by a defendant who is represented by counsel, the issuing authority shall:
(1) fix a day and hour for a preliminary hearing which shall not be less than 3 nor more than 10 days after the preliminary arraignment, unless
[(i)] (a) extended for cause shown, or
[(ii)] (b) the issuing authority fixes an earlier date upon request of the defendant or defense counsel with the consent of the complainant and the attorney for the Commonwealth; and
(2) give the defendant notice, orally and in writing.
(a) of the date, time, and place of the preliminary hearing [thus fixed.], and
(b) that failure to appear for the preliminary hearing will result in the case being forwarded to the court of common pleas for further proceedings, unless, within 10 days after the date scheduled for the preliminary hearing, the defendant provides the issuing authority with good cause explaining his or her failure to appear.
[(f)] (F) ***
[(g)] (G) ***
Official Note: Original Rule 119 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 119 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 140 September 18, 1973, effective January 1, 1974; amended April 26, 1979, effective July 1, 1979; amended January 28, 1983, effective July 1, 1983; rescinded August 9, 1994, effective January 1, 1995. New Rule 140 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; the April 1, 1996 effective date extended to July 1, 1996; amended ______ , effective ______ .
Comment [Former Rule 140 was rescinded and replaced by new Rule 140 in 1994. Although the rule has been extensively reorganized, only paragraphs (b) and (c) reflect changes in the procedures contained in the former rule.]
A preliminary arraignment as provided in this rule bears no relationship to arraignment in criminal courts of record. See Rule 303.
Paragraph [(b)] (B) requires that the defendant receive copies of the arrest warrant and the supporting affidavit(s) at the time of the preliminary arraignment. See also Rules 119(a), 2008(a), and 6003.
Paragraph [(b)] (B) includes a narrow exception which permits the issuing authority to provide copies of the arrest warrant and supporting affidavit(s) on the first business day after the preliminary arraignment. This exception applies only when copies of the arrest warrant and affidavit(s) are not available at the time the issuing authority conducts the preliminary arraignment, and is intended to address purely practical situations such as the unavailability of a copier at the time of the preliminary arraignment.
Nothing in this rule is intended to address public access to arrest warrant affidavits. See Commonwealth v. Fenstermaker, 530 A.2d 414 (Pa. 1987).
When a defendant has not been promptly released from custody after a warrantless arrest, the defendant must be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay. See Rule 102(a).
Under paragraph [(c)] (C), if a defendant has been arrested without a warrant, the issuing authority must make a prompt determination of probable cause before a defendant may be detained. See Riverside v. McLaughlin, 500 U. S. 44 (1991). The determination may be based on written affidavits, an oral statement under oath, or both.
Pursuant to the 1996 amendment to paragraph (E)(2), at the time of the preliminary arraignment, the defendant must be given notice, both orally and in writing, of the date, time, and place of the preliminary hearing. The notice must also explain that, if the defendant fails to appear for the preliminary hearing, the preliminary hearing will not be held and the case will be sent to the court of common pleas for further proceedings, unless, within 10 days after the date scheduled for the preliminary hearing, the defendant shows good cause explaining his or her failure to appear.
See Rule 6003(D) for the procedures governing preliminary arraignments in non-summary cases in the Municipal Court.
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).
Supplemental Report explaining the , 1996 amendments published at 26 Pa.B. 2316 (May 18, 1996).
Rule 141. Preliminary Hearing.
[(a)] (A) ***
[(b)] (B) ***
[(c)] (C) The defendant shall be present at any preliminary hearing except as provided in these rules, and may, if he or she desires:
(1) be represented by counsel;
(2) cross-examine witnesses and inspect physical evidence offered against him or her;
(3) call witnesses on his or her own behalf, other than witnesses to [his] the defendant's good reputation only[,]:
(4) offer evidence on his or her own behalf and testify; and
[(4)] (5) make written notes of the proceedings, or have [his] counsel do so, or make a stenographic, mechanical, or electronic record of the proceedings.
[(d)] If a prima facie case of the defendant's guilt is not established at the preliminary hearing, and no application for continuance, supported by reasonable grounds, is made by an interested person, and no reason for a continuance otherwise appears, the issuing authority shall discharge the defendant.]
Official Note: Formerly Rule 120[,] adopted June 30, 1964, effective January 1, 1965; suspended 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 ______ , effective ______ .
Comment When no attorney appears at the preliminary hearing on behalf of the Commonwealth, the issuing authority may ask questions of any witness who testifies, and the affiant may request the issuing authority to ask specific questions.
[The 1975 modification to paragraph] Paragraph [(c)] (C)(3) is intended to make clear that the defendant [can] 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.
[For suspension of Act of Assembly see Rule 159(g).]
Paragraph (d), concerning the procedures when a prima facie case is found, was deleted in 1996 as unnecessary because the same procedures are set forth in Rule 143 (Disposition of Case at Preliminary Hearing).
For the procedures when a defendant fails to appear for the preliminary hearing, see Rule 143(D).
Committee Explanatory Reports
Supplemental Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2316 (May 18, 1996).
Rule 142. Continuance of a Preliminary Hearing.
(A) The issuing authority may, for cause shown, grant a continuance, and shall note on the transcript every continuance together with:
(1) the grounds for granting each continuance,
(2) the identity of the party requesting such continuance, and
(3) the new date and time for the preliminary hearing, and the reasons that the particular date was chosen.
(B) The issuing authority shall give notice of the new date and time for the preliminary hearing to the defendant or defendant's attorney of record and the attorney for the Commonwealth.
(1) The notice shall be in writing.
(2) Notice shall be served on the defendant either in person or by both first class mail and certified mail, return receipt requested.
(3) Notice shall be served on defendant's attorney of record and the attorney for the Commonwealth either by personal delivery or by leaving a copy for or mailing a copy to the attorney(s) at the attorney's office.
Official Note: Formerly 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 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; amended ______ , effective ______ .
Comment For the contents of the transcript, see Rule 26.
Proof of service by mail on the defendant of the notice of the continued preliminary hearing shall include:
(1) a return receipt signed by the defendant, or
(2) if the certified mail is returned for whatever reason, the returned notice with the notation that the certified mail was undelivered and evidence that the first class mailing of the notice was not returned to the issuing authority within 15 days after mailing.
Committee Explanatory Reports:
Supplemental Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2316 (May 18, 1996).
Rule 143. Disposition of Case at Preliminary Hearing.
(A) At the conclusion of the preliminary hearing, the decision of the issuing authority shall be publicly pronounced.
[(a)] (B) If the Commonwealth establishes a prima facie case of the defendant's guilt, the issuing authority shall hold the defendant for court. Otherwise, the defendant shall be discharged. [In either event, the decision of the issuing authority shall be publicly pronounced.]
[(b)] (C) When the defendant has been held for court, the issuing authority shall:
(1) set bail as permitted by law if the defendant did not receive a preliminary arraignment; or
(2) continue the existing bail order, unless the issuing authority modifies the order as permitted by Rule 4008(a).
(D) In any case in which the defendant fails to appear for the preliminary hearing, the issuing authority shall not issue a warrant for the arrest of the defendant, and shall proceed as follows:
(1) The issuing authority shall determine whether the defendant received notice of the time, date, and place of the preliminary hearing either:
(a) in person at a preliminary arraignment as provided in Rule 140(E)(2);
(b) in a summons served as provided in Rule 112; or
(c) through defendant's attorney of record.
(2) If the issuing authority finds that the defendant received notice, unless the defendant within 10 days after the date scheduled for the preliminary hearing provides good cause explaining the defendant's failure to appear, the issuing authority shall:
(a) indicate on the transcript that the defendant failed to appear and failed to provide good cause;
(b) make a probable cause determination if no probable cause determination has been previously made in the case; and
(c) forward the case to the court of common pleas for further proceedings.
(3) 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 142(B).
(4) If no attorney for the Commonwealth was present for the preliminary hearing, the issuing authority shall notify the attorney for the Commonwealth, and any other designated court official, that the defendant failed to appear for the preliminary hearing. The notice shall indicate whether
(a) the case has been forwarded to the court of common pleas for further proceedings pursuant to paragraph (D)(2), or
(b) the preliminary hearing has been continued pursuant to paragraph (D)(3); the notice shall include the date, time, and place for the rescheduled preliminary hearing.
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; amended ______ , effective ______ .
Comment For the procedures for preliminary hearings in the Municipal Court of Philadelphia, see Rule 6003F.
Paragraph [(b) was amended in 1983 to reflect] (C) reflects the fact that a bail determination will already have been made at the preliminary arraignment, except in those cases where, pursuant to a summons, the defendant's first appearance is at the preliminary hearing. See Rules 109 and 110.
When a defendant fails to appear for the preliminary hearing, the issuing authority must ascertain whether the defendant received notice of the date, time, and place of the preliminary hearing. Paragraph (D)(2).
If the issuing authority determines that the defendant received notice, he or she must forward the case to the court of common pleas for further proceedings, unless the defendant within 10 days after the date scheduled for the preliminary hearing provides the issuing authority with good cause why the defendant failed to appear. Paragraph (D)(2).
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. Paragraph (D)(3). For the procedures when a preliminary hearing is continued, see Rule 142.
If the issuing authority determines that the defendant has not provided good cause explaining why the defendant failed to appear, the issuing authority must forward the case to the court of common pleas for further proceedings.
As provided in paragraph (D)(1), service of the notice of the date, time, and place of the preliminary hearing may have been accomplished in one of three ways; in person and in writing at a preliminary arraignment as provided in Rule 140; in a summons served pursuant to Rule 112; or through defendant's attorney of record.
As provided in paragraph (D)(2)(b), unless a probable cause determination has been made previously in the case, the issuing authority must make a probable cause determination before forwarding the case to the court of common pleas.
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 September 13, 1995 amendments published with the Court's Order at 25 Pa.B. 4116 (September 30, 1995).
Supplemental Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2316 (May 18, 1996).
Rule 146. Return of Transcript and Original Papers.
(a) When a defendant is held for court, or, after a case is forwarded to the court of common pleas when a defendant has failed to appear for the preliminary hearing, the issuing authority shall prepare a transcript of the proceedings. The transcript shall contain all the information required by these rules to be recorded on the transcript [under Rules 26 and 142]. It shall be signed by the issuing authority, and have affixed to it the issuing authority's seal of office.
(b) The issuing authority shall transmit the transcript to the clerk of the proper court:
(1) within [five] 5 days after holding the defendant for court; or
(2) in cases in which the defendant has failed to appear for the preliminary hearing, at the time the case is forwarded to the court of common pleas for further proceedings.
(c) In addition to [this] the transcript, the issuing authority shall also transmit the following items:
(1) original complaint;
(2) the summons or the warrant of arrest and its return;
(3) all affidavits filed in the proceeding; and
(4) the appearance or bail bond for the defendant, if any, or a copy of the order committing the defendant to custody.
Official Note: Formerly Rule 126[,] adopted June 30, 1964, effective January 1, 1965; suspended effective May 1, 1970, revised January 31, 1970; effective May 1, 1970; renumbered and amended September 18, 1973, effective January 1, 1974; amended October 22, 1981, effective January 1, 1982; amended July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended ______ , effective ______ .
Comment See Rule 26 for the general contents of the transcript. There are a number of other rules that require certain things to be recorded on the transcript to make a record of the proceedings before the issuing authority. See, e.g., Rules 142 and 143.
See Rule 143(D) for the procedures when a defendant fails to appear for a preliminary hearing. The issuing authority must forward the case to the court of common pleas for further proceedings unless within 10 days after the date scheduled for the preliminary hearing, the defendant shows good cause to explain why he or she failed to appear. The transcript must be transmitted within 5 days after forwarding the case to the court of common pleas.
Committee Explanatory Reports:
Supplemental Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2316 (May 18, 1996).
CHAPTER 200. INFORMATIONS AND INVESTIGATING GRAND JURIES PART I. INFORMATIONS Rule 224. Withdrawal of Charges by Attorney for the Commonwealth.
(a) After a case is held for court, or, after a case is forwarded to the court of common pleas for further proceedings when a defendant has failed to appear for the preliminary hearing, at any time before the information is filed, the attorney for the Commonwealth may withdraw one or more charges by filing notice with the clerk of courts.
(b) Upon the filing of the information, any charge not listed on the information shall be deemed withdrawn by the attorney for the Commonwealth.
Official Note: Former Rule 224 adopted November 22, 1971, effective immediately; amended February 15, 1974, effective immediately; amended April 26, 1979, effective July 1, 1979; rescinded August 12, 1993, effective September 1, 1993. New Rule 224 adopted August 14, 1995, effective January 1, 1996; amended ______ , effective ______ .
Comment Court approval is not required for the withdrawal of charges prior to the filing of an information. Cf. 42 Pa.C.S. § 8932 and Rule 313 (Nolle Prosequi).
See Rule 143(D) for the procedures when a defendant fails to appear for the preliminary hearing.
Committee Explanatory Reports:
Report explaining the August 12, 1993 rescission published at 22 Pa.B. 3826 (July 25, 1992).
Final Report explaining the August 14, 1995 amendments published with the Court's Order at 25 Pa.B. 3468 (August 26, 1995).
Supplemental Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2316 (May 18, 1996).
Rule 225. Information: Filing, Contents, Function.
(a) After the defendant has been held for court, or after a case is forwarded to the court of common pleas for further proceedings when the defendant has failed to appear for the preliminary hearing, the attorney for the Commonwealth shall proceed by preparing an information and filing it with the court of common pleas.
* * * * * Official Note: Adopted February 15, 1974, effective immediately; Comment revised January 28, 1993, effective July 1, 1983; amended August 14, 1995, effective January 1, 1996; amended ______ , effective ______ .
Comment 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 224(a). Upon the filing of an information, any charge not listed on the information will be deemed withdrawn by the attorney for the Commonwealth. See Rule 224(b). After the information is filed, court approval is required before a nolle prosequi may be entered on a charge listed therein. See Rule 313.
When there is an omission or error of the type referred to in paragraph (c), the information should be amended pursuant to Rule 229.
See Rule 143(D) for the procedures when a defendant fails to appear for a preliminary hearing.
Committee Explanatory Reports:
Final Report explaining the August 14, 1995 amendments published with the Court's Order at 25 Pa.B. 3468 (August 26, 1995).
Supplemental Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2316 (May 18, 1996).
Rule 231. Presentation of Information without Preliminary Hearing.
(a) ***
(b) ***
(c) When a defendant fails to appear for a preliminary hearing and the case is forwarded to the court of common pleas as provided in Rule 143(D), the attorney for the Commonwealth may file an information with the court without a preliminary hearing.
Official Note: Adopted February 15, 1974, effective immediately; amended April 26, 1979, effective July 1, 1979; amended August 12, 1993, effective September 1, 1993; amended ______ , effective ______ .
Comment The prior language of the rule, authorizing the attorney for the Commonwealth, with the permission of the court, to bypass the preliminary hearing to toll the statute of limitations or to extradite a defendant, was deleted in 1993 in light of changes in the law simplifying the process for obtaining custody of the defendant. It is intended that use of the bypass procedure as set forth in paragraph (a) will be limited to exceptional circumstances only.
Under the Juvenile Act, a juvenile is entitled to substantially the same rights at a transfer hearing as a defendant would be at a preliminary hearing. See Juvenile Act, 42 Pa.C.S. § 6355. Therefore, to avoid duplicative proceedings, this rule permits the attorney for the Commonwealth to bypass the preliminary hearing when a juvenile has been transferred for prosecution as an adult.
When a defendant has failed to appear for a preliminary hearing, Rule 143(D) provides that the issuing authority is to forward the case to the court of common pleas for further proceedings. When a case has been forwarded under these circumstances, paragraph (c) permits the attorney for the Commonwealth to file an information without a preliminary hearing.
Committee Explanatory Reports:
Report explaining the August 12, 1993 amendments published at 22 Pa.B. 3826 (July 25, 1992).
Supplemental Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2316 (May 18, 1996).
CHAPTER 6000. RULES OF CRIMINAL PROCEDURE FOR THE MUNICIPAL COURT OF PHILADELPHIA Rule 6000. Scope of Rules.
[(a) The rules in this chapter govern proceedings in Municipal Court cases in the Municipal Court of Philadelphia and appeals from Municipal Court cases.
(b) Except as provided in this chapter, procedure in Municipal Court cases shall be governed by the Rules of Criminal Procedure adopted and promulgated by the Supreme Court of Pennsylvania.]
(A) The rules in this chapter govern all proceedings in the Philadelphia Municipal Court, including summary cases; Municipal Court cases, as defined in Rule 6001(a); the filing of appeals from Municipal Court cases; the filing of petitions for writs of certiorari; and the preliminary proceedings in criminal cases charging felonies.
(B) Any procedure which is governed by a statewide rule of criminal procedure, but which is not specifically covered in Chapter 6000, shall be governed by the relevant statewide rule.
Official Note: Adopted December 30, 1968, effective January 1, 1969; amended March 28, 1973, effective March 28, 1973; amended July 1, 1980, effective August 1, 1980; amended ______ , 1996, effective ______ , 1996.
Comment [The 1973 amendment deleted the paragraph which made the rules in this chapter inapplicable to cases which were summary cases prior to the adoption of these rules.]
The 1996 amendments make it clear that, except as otherwise provided in the rules, Chapter 6000 governs all proceedings in the Philadelphia Municipal Court, including the procedures for instituting criminal cases charging felonies, preliminary arraignments, and preliminary hearings. See 42 Pa.C.S. § 1123 (Jurisdiction and Venue).
Committee Explanatory Reports:
Supplemental Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2316 (May 18, 1996).
Rule 6001. Disposition of Criminal Cases--Municipal Court, Philadelphia.
[Any misdemeanor] (A) A Municipal Court case is any case in which the only offense or offenses charged are misdemeanors under the Crimes Code, or other statutory criminal [offense] offenses for which no prison term may be imposed or which is punishable by a term of imprisonment of not more than 5 years, including any [indictable] offense under the Vehicle Code other than a summary offense [under the motor vehicle laws, shall be a Municipal Court case].
(B) When one or more such offenses are charged in a single complaint or series of complaints against one defendant, all shall be joined in the same Municipal Court case, regardless of the length of the cumulative sentence which could be imposed on all charges.
(C) A Municipal Court case may be transferred from the Municipal Court to the Court of Common Pleas by order of the President Judge of the Court of Common Pleas, or [his] the President Judge's designee, upon [his] the President Judge's approval of:
(1) a certification by defense counsel that trial in the Municipal Court will unduly delay defendant's access to a trial by jury; or
(2) a certification by both defense counsel and the District Attorney that the trial of the case will be so time consuming as to unduly disrupt the business of the Municipal Court.
Official Note: [Adopted] Present Rule 6001 adopted March 28, 1973, effective March 28, 1973, replacing prior Rule 6001; amended June 28, 1974, effective July 1, 1974; [last sentence] paragraph (C) added February 10, 1975, effective immediately; title amended July 1, 1980, effective August 1, 1980; Comment revised January 28, 1983, effective July 1, 1983; amended ______ , 1996, effective ______ , 1996.
Comment This Rule, which defines Municipal Court case, is intended to assure that the Municipal Court will take dispositive action, including trial and verdict when appropriate, in any criminal case which does not involve a felony, excluding summary cases under the [motor vehicle laws] Vehicle Code. The latter are under the jurisdiction of the Philadelphia Traffic Court, Judicial Code §§ 1301--1303, 1321; 42 Pa.C.S. §§ 1301--1303, 1321 [(1981)].
Committee Explanatory Reports:
Supplemental Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2316 (May 18, 1996).
Rule 6003. Procedure in Non-Summary Cases in Municipal Court [Cases].
A. INITIATION OF CRIMINAL PROCEEDINGS
(1) Criminal proceedings in court cases [which charge any misdemeanor under the Crimes Code or other statutory criminal offenses, other than a summary offense, for which no prison term may be imposed or which is punishable by a term of imprisonment of not more than 5 years] shall be instituted by filing a written complaint, except that proceedings may be also instituted by:
(a) an arrest without a warrant when a felony or misdemeanor is committed in the presence of the police officer making the arrest; [or]
(b) an arrest without a warrant upon probable cause when the offense is a misdemeanor not committed in the presence of the police officer making the arrest, when the arrest without a warrant is specifically authorized by law; or
(c) an arrest without a warrant upon probable cause when the offense is a felony.
(2) 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.
B. CERTIFICATION OF COMPLAINT
Before a Municipal Court judge may issue process or order further proceedings [in a Municipal Court case], the judge shall ascertain and certify on the complaint that:
(1) the complaint has been properly completed and executed; and
(2) when prior approval from the office of the District Attorney is required, that a district attorney has approved the complaint.
The Municipal Court judge shall then accept the complaint for filing, and the case shall proceed as provided in these rules.
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 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 imprisonment for a term of more than 5 years;
(b) the Municipal Court judge has reasonable grounds for believing that the defendant will not obey a summons;
(c) the summons has been returned undelivered;
(d) a summons has been served and disobeyed by a defendant;
(e) the identity of the defendant is unknown; or
(f) a defendant is charged with more than one offense, and one of the offenses is punishable by imprisonment for a term of more than 5 years; or
(3) when the offense charged does not fall within the categories specified in subsection C(1) or (2), the judge may, in his or her discretion, issue a summons or a warrant of arrest.
[Continued on next Web Page]
[Continued from previous Web Page] D. PRELIMINARY ARRAIGNMENT
(1) When a defendant has been arrested within Philadelphia County [in a Municipal Court case], with or without a warrant, the defendant shall be afforded a preliminary arraignment by a Municipal Court judge without unnecessary delay. If the defendant was arrested without a warrant pursuant to subsection A(1)(a) or (b), unless the Municipal Court judge makes a determination of probable cause, the defendant shall not be detained.
(2) At the preliminary arraignment, the Municipal Court judge:
(a) shall not question the defendant about the offense(s) charged;
(b) shall give the defendant a copy of the certified complaint;
(c) if the defendant was arrested with a warrant, the issuing authority shall provide the defendant with copies of the warrant and supporting affidavit(s) at the preliminary arraignment, unless the warrant and affidavit(s) are not available at that time, in which event the defendant shall be given copies no later than the first business day after the preliminary arraignment; and
(d) shall also inform the defendant:
(i) of the right to secure counsel of choice and the right to assigned counsel in accordance with Rule 316;
(ii) in a Municipal Court case, of the day, date, hour, and place for trial, which shall not be less than 20 days after the preliminary arraignment unless the [issuing authority] Municipal Court judge fixes an earlier date upon request of the defendant or defense counsel, with the consent of the attorney for the Commonwealth; [and]
(iii) in a case charging a felony, of the date, time, and place of the preliminary hearing, which shall not be less than 3 nor more than 10 days after the preliminary arraignment unless extended for cause or the Municipal Court judge fixes an earlier date upon the request of the defendant or defense counsel with the consent of the complainant and the attorney for the Commonwealth; and
[(iii)] (iv) of the type of release on bail, as provided in Chapter 4000 of these rules, and the conditions of the bail bond.
(3) After the preliminary arraignment, if the defendant is detained, he or she shall be given an immediate and reasonable opportunity to post bail, secure counsel, and notify others of the arrest. Thereafter, if the defendant does not post bail, he or she shall be committed to jail, as provided by law.
E. PRELIMINARY HEARING IN CASES CHARGING A FELONY
(1) In cases charging a felony, the preliminary hearing in Municipal Court shall be conducted as provided in Rule 141 (Preliminary Hearing).
(2) In any case in which the defendant fails to appear for the preliminary hearing, the Municipal Court judge may issue a warrant for the arrest of the defendant.
[E.] F. ACCEPTANCE OF BAIL PRIOR TO TRIAL
The Clerk of Quarter Sessions shall accept bail at any time [prior to the Municipal Court trial].
Official Note: Original Rule 6003 adopted June 28, 1974, effective July 1, 1974; amended January 26, 1977, effective April 1, 1977; amended December 14, 1979, effective April 1, 1980; amended July 1, 1980, effective August 1, 1980; amended October 22, 1981, effective January 1, 1982; Comment revised December 11, 1981, effective July 1, 1982; amended January 28, 1983, effective July 1, 1983; amended February 1, 1989, effective July 1, 1989; rescinded August 9, 1994, effective January 1, 1995. New Rule 6003 adopted August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; amended March 22, 1996, effective July 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; amended ______ , 1996, effective ______ , 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 make it clear that Rule 6003 covers the preliminary procedures for all non-summary Municipal Court cases, see Rule 6001(A), and cases charging felonies, including the institution of proceedings, the preliminary arraignment, and the preliminary hearing.
See Chapter 100 (Procedure in Court Cases), Parts I (Instituting Proceedings), II (Complaint Procedures), III (Summons and Arrest Warrant Procedures in Court Cases), and IV (Proceedings Before Issuing Authorities) for the Statewide rules governing the preliminary procedures in court cases, including non-summary Municipal Court cases, not otherwise covered by this rule.
The , 1996 amendments to paragraph A(1) align the procedures for instituting cases in Municipal Court with the Statewide procedures in Rule 101 (Means of Instituting Proceedings in Court Cases).
The March 22, 1996 amendments to paragraph A(2) align the procedures for private complaints in non-summary cases in 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.
As used in this rule, ''Municipal Court judge'' includes a bail commissioner acting within the scope of bail commissioner's authority under 42 Pa.C.S. § 1123(A)(5).
* * * * * Under subsection D(3), after the preliminary arraignment, if the defendant is detained, the defendant must be given an immediate and reasonable opportunity to post bail, secure counsel, and notify others of the arrest. Thereafter, if the defendant does not post bail, he or she must be committed to jail, as provided by law.
When a defendant fails to appear for the preliminary hearing, nothing in these rules is intended to preclude a Municipal Court judge from proceeding as provided by present practice or as provided in Rule 143(D).
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).
Supplemental Report explaining the ____ , 1996 amendments published at 26 Pa.B. 2316 (May 18, 1996).
PART II. LOCAL AND MINOR RULES CHAPTER 9000. GENERAL PROVISIONS Rule 9024. Notice of Court Proceeding(s) Requiring Defendant's Presence.
[Notice] Except as otherwise provided in Chapter 100 concerning notice of the preliminary hearing, notice of a court proceeding requiring a defendant's presence shall be either:
(a) in writing and served by
(1) personal delivery to the defendant or defendant's attorney; or
(2) leaving a copy for or mailing a copy to the defendant's attorney at the attorney's office; or
(3) sending a copy to the defendant by certified, registered, or first class mail addressed to the defendant's place of residence, business, or confinement; or
(b) given to the defendant orally in open court on the record.
Official Note: Former Rule 9024 adopted October 21, 1983, effective January 1, 1984; amended March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; renumbered Rule 9025 June 2, 1994, effective September 1, 1994. New Rule 9024 adopted June 2, 1994, effective September 1, 1994; amended ______ , effective ______ .
Comment Some judicial districts use a document called a ''subpoena'' to give a defendant notice of required court appearances. Nothing in this rule is intended to change this practice.
See Rules 112, 140, 142, and 143 for the procedures for service of notice of a preliminary hearing, which are different from the procedures in this rule.
See Rule 9023 for the procedures for serving all written motions and any document for which filing is required.
See Rule 80 for the procedures for service in summary cases.
Committee Explanatory Reports:
Report explaining the provisions of new Rule 9024 published at 23 Pa.B. 5008 (October 23, 1993).
Supplemental Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2316 (May 18, 1996).
Supplemental Report Proposed Amendments to Pa.Rs.Crim.P. 110, 112, 113, 140, 141, 142, 143, 146, 224, 225, 231, 9024, 6000, 6001, and 6003 Procedure When Defendant Fails to Appeal for Preliminary Hearing Background
The Committee's original proposal, which was published for comment at 25 Pa.B. 828 (March 11, 1995), was intended to make it clear that (1) under the present rules, district justices may issue warrants for the arrest of a defendant who has failed to appear for the preliminary hearing, and (2) the warrant procedure is not intended to replace the various local procedures for handling cases in which a defendant fails to appear for the preliminary hearing.
In response to our request for comments about the original proposal, the Committee received correspondence from several individuals, including Nancy M. Sobolevitch, Court Administrator of Pennsylvania; Timothy M. McVay, Esq., an attorney with the Administrative Office of Pennsylvania Courts (AOPC) Judicial Computer Project (JCP); and James G. Morgan Jr., solicitor for the Special Courts Judges Association of Pennsylvania. The correspondents urged the Committee to consider modifying the proposal to mandate a uniform procedure for handling cases in which the defendant has failed to appear for the preliminary hearing. They pointed out that currently, without a Statewide uniform procedure, the practices not only vary from judicial district to judicial district, but also from magisterial district to magisterial district, and occasionally from case to case. They noted that this diversity of practice (1) is confusing to the bench, bar, and defendants; (2) makes it difficult to monitor the cases at both the local and Statewide levels; (3) creates administrative problems at the Statewide level, particularly for purposes of the case statistics; and (4) has resulted in some cases being ''lost'' either at the magisterial district level or in the court of common pleas.
After considering the points raised in the publication correspondence, the Committee reconsidered its original proposal, and was persuaded that the rules should provide one procedure for handling cases in which the defendant fails to appear for the preliminary hearing.
DISCUSSION OF RULE CHANGES
A. Introduction
The Committee debated at length the pros and cons of the various procedures that are being used around the State, including procedures in which:
(1) the case is forwarded to the court of common pleas for further proceedings;
(2) the preliminary hearing is deemed waived, and the case then proceeds as though the hearing had been held;
(3) the preliminary hearing is held in the defendant's absence;
(4) the district justice issues a warrant, and the case remains open at the magisterial district level until the defendant is arrested; or
(5) the district justice combines one or more of the above.
Ultimately, the Committee majority agreed that the procedure most likely to address the points raised by the correspondents and to protect the rights of the defendant would be one in which the case is forwarded to the court of common pleas for further proceedings. We also agreed that the rules would have to make it clear that before a case may be forwarded, the issuing authority must consider whether the defendant received notice of the preliminary hearing and whether there was a good reason which would explain the defendant's failure to appear.
In view of these considerations, we settled on the following scheme, which we believe is a fair and reasonable set of procedures for handling cases in which a defendant fails to appear for the preliminary hearing.
(a) When a defendant fails to appear for the preliminary hearing, the issuing authority is required to make a determination that the defendant had notice of the preliminary hearing.
(b) If the issuing authority determines that the defendant had notice, the issuing authority must wait 10 days before taking any action in order to give the defendant an opportunity to explain why he or she failed to appear.
(c) If the issuing authority determines that the defendant did not have notice, or that the defendant provided good cause to explain his or her failure to appear, the issuing authority must continue the hearing to a date certain and send notice of the new date and time of the hearing.
(d) If the issuing authority determines that the defendant had notice, absent a showing of good cause by the defendant within the ten-day period, the district justice must forward the case to the court of common pleas for further proceedings.
B. Rule 143 (Disposition of Case at Preliminary Hearing)
Although a number of rules must be amended to accommodate the new procedure outlined above, the Committee agreed to incorporate the requirement that the issuing authority must forward the case to the court of common pleas for further proceedings into Rule 143 (Disposition of Case at Preliminary Hearing).1
The new procedure is contained in paragraph (D), which begins by prohibiting the issuing authority from issuing a warrant for the arrest of the defendant.2 The Committee is recommending this prohibition because, having agreed that when a defendant fails to appear for the preliminary hearing, the case will move forward to the court of common pleas, we did not want to build into the process a warrant procedure which would invariably delay these cases at the magisterial district level. In addition, the prohibition will eliminate the problem of monitoring these warrants, which, under present practice, frequently remain outstanding even after the case is forwarded to the court of common pleas. Rule 113, which currently authorizes an issuing authority to issue a warrant for a defendant who fails to appear for the preliminary hearing when the case is instituted by summons, would also be amended to delete the warrant procedure.
Rule 143(D)(1) requires that the issuing authority determine whether the defendant received notice of the preliminary hearing. See Section C below for the discussion of the related rule changes concerning the new notice provisions. Subparagraphs (1)(a) through (1)(c) set forth the methods of providing notice to the defendant, including ''through defendant's attorney of record.'' The Committee agreed that this method of providing notice should be recognized in the rules since it occurs on a regular basis, particularly when the attorney is privately retained.
If the issuing authority determines that the defendant received notice, paragraph (D)(2) requires that the issuing authority wait ten days after the date scheduled for the preliminary hearing before taking any further action. This ten-day waiting period affords the defendant an opportunity to explain why he or she failed to appear. We recognize that occasionally there are legitimate reasons why a defendant fails to appear, such as being involved in an accident on the way to court or a sudden illness, and we did not want to unfairly penalize these defendants. However, the burden is on the defendant or the defendant's attorney, to contact the district justice and provide the ''good cause,'' and this must be done within the ten-day time limit. Absent the defendant providing good cause, the issuing authority is directed to forward the case to the court of common pleas for further proceedings.
Paragraph D(2)(a)--(c) set forth the procedures the issuing authority must follow after determining that the defendant received notice and did not provide good cause for his or her failure to appear. Subparagraph (2)(a) requires that the issuing authority indicate on the transcript that the defendant failed to appear and that the defendant failed to provide good cause explaining the failure to appear. This will provide a record of the issuing authority's findings concerning the defendant's failure to appear when the case is forwarded.
Subparagraph (2)(b) requires the issuing authority to make a probable cause determination if one has not been previously made. This requirement has been added to address the Committee's concerns about being forwarded to the court of common pleas without a probable cause determination having been made by a judicial officer, which frequently occurs in those cases in which a defendant is to appear for a preliminary hearing pursuant to a summons.
Subparagraph (2)(c) sets forth the requirement that the issuing authority forward the case to the court of common pleas for further proceedings. The Committee considered whether the rules should elaborate on ''further proceedings.'' We concluded that the rules should not directly define ''further proceedings,'' nor should they address specific issues, such as whether a common pleas court judge could remand the case for a preliminary hearing or conduct the preliminary hearing. However, we agreed that Rule 146 (Return of Transcript and Original Papers), Rule 224 (Withdrawal of Charges by Attorney for the Commonwealth), and Rule 225 (Information: Filing, Contents, Function) should be amended to make it clear that a case which has been forwarded pursuant to Rule 143(D) is to proceed under these rules in the same manner as a case that is held for court following a preliminary hearing. See Section D below for the discussion of these amendments.
Paragraph (D)(3) sets forth the procedures that the issuing authority must follow if he or she 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 must continue the preliminary hearing to a specific date and time, and give notice as provided in Rule 142 (Continuance of A Preliminary Hearing). See Section C.2 below for a discussion of the amendments to Rule 142.
Paragraph (D)(4) addresses the Committee's concern that, in those cases in which no attorney for the Commonwealth is present at the preliminary hearing, the attorney for the Commonwealth would not be aware that a case was forwarded to the court of common pleas or was continued. Paragraph (D)(4) remedies this problem by requiring that the issuing authority notify the attorney for the Commonwealth that the defendant failed to appear and indicate on the notice whether the case was forwarded or continued. This paragraph also provides for notice to ''any other designated court official'' to accommodate local administrative practices concerning the processing of court cases forwarded by the district justice.
C. Rule Changes Related to Notice Issues
1. Notice of the Preliminary Hearing: Rules 110, 112, 140, and 9024
In developing the new procedures for handling failures to appear, the Committee was particularly concerned about how to ensure that the defendant receives notice of the preliminary hearing, or notice of the new date and time when a preliminary hearing is continued, and spent a great deal of time working on this issue.
Notice of the date and time of a preliminary hearing, as provided in the present rules, is given to a defendant in one of two ways.3 When a defendant appears for a preliminary arraignment, notice of the date and time for the preliminary hearing is given to the defendant in person. See Rule 140(E)(2). When the case is begun by summons, the summons sets forth the date and time for the preliminary hearing, see Rule 110, and is served by certified mail, return receipt requested, see Rule 112.
(a) Notice In Summons: Rule 112 (Service of Summons: Proof of Service)
The rules do not address how a district justice is to determine whether the defendant actually received a summons that was mailed, and the Committee agreed that the rules should provide guidance in this area. In deciding how to best accomplish this, we looked to the Rules of Civil Procedure to see how this matter was handled in civil cases. Pa.R.Civ.P. 405 (Return of Service) provides, inter alia, that proof of service by mail
shall include a return receipt signed by the defendant or, if the defendant has refused to accept mail service and the plaintiff thereafter has served the defendant by ordinary mail,
(1) the returned letter with the notation that the defendant refused to accept delivery, and
(2) an affidavit that the letter was mailed by ordinary mail and was not returned within fifteen days after mailing.
The Committee agreed that a provision comparable to this, but modified for criminal practice, would allay the members' concerns about service by mail, and propose the following amendments to Rule 112 (Service of Summons):
1. The title would be amended to include ''proof of service.''
2. The present text of the rule would become paragraph (A), and would be amended to require service of the summons by both first class mail and certified mail, return receipt requested.
3. New paragraph (B), modeled on the procedures in Civil Rule 405(c), sets forth what constitutes proof of service of a summons by mail.
(b) Oral and Written Notice at Preliminary Arraignment: Rule 140 (Preliminary Arraignment)
The Committee is proposing amendments to Rule 140 which require that the notice of the preliminary hearing is to be given to the defendant at the preliminary arraignment both orally and in writing. We agreed that adding the requirement that the notice of the preliminary hearing be in writing would increase the likelihood that a defendant would remember the information he or she received at the preliminary arraignment.
(c) Rule 9024 (Notice of Court Proceeding(s) Requiring Defendant's Presence)
Recognizing that the requirements for notice in Rule 9024 are different from the proposed requirements in Rules 110, 112, and 140 for notice of the preliminary hearing, the Committee agreed that Rule 9024 should be amended to make it clear that Rule 9024 does not apply to notice of preliminary hearings.
2. Notice of Consequences of Failing to Appear for Preliminary Hearing: Rules 110 and 140
The Committee agreed that, with the implementation of the new procedure under Rule 143(D), it is essential that a defendant receives notice of the consequences of his or her failure to appear for the preliminary hearing. We also agreed that notice of the consequences should be given to the defendant when the defendant receives notice of the preliminary hearing. To accomplish this, we are proposing that Rule 140(E)(2) be amended to require that the issuing authority give notice to the defendant that:
failure to appear for the preliminary hearing will result in the case being forwarded to the court of common pleas for further proceedings, unless, within 10 days after the date scheduled for the preliminary hearing, the defendant provides the issuing authority with good cause explaining his or her failure to appear. Paragraph (E)(2)(b).
Rule 110 would require that the summons include the same language. See Rule 110(B)(3).
4. Notice of Continuance: Rule 142 (Continuance of A Preliminary Hearing)
Another notice issue arises when a preliminary hearing is continued. Our review of Rule 142 revealed that the rule does not provide for notice of the new date and time set for the preliminary hearing, a procedural gap the Committee agreed should be filled. Therefore, we are proposing that Rule 142 be amended to require that the issuing authority give written notice of the new date and time to the defendant, or to defendant's attorney of record, and to the attorney for the Commonwealth. See Rule 142(B)(1). In addition, the rule requires that service of the notice on the defendant either be given in person or by both first class mail and certified mail, return receipt requested. See Paragraph (B)(2). Finally, paragraph (B)(3), modeled on the Rule 9024 provisions for service on counsel, provides for service on the defendant's attorney and on the attorney for the Commonwealth either by personal delivery or by leaving a copy for or mailing a copy to the attorney at the attorney's office.
The Comment, based on the provisions in Rule 112(B), explains that, when the notice of the continuance is mailed to the defendant, proof of service by mail includes (1) a return receipt signed by the defendant, or, (2) if the certified mail is returned for whatever reason, the returned notice with the notation that the certified mail was undelivered and evidence that the first class mailing of the summons was not returned to the issuing authority within 15 days after mailing.
D. Related Amendments
1. Rules 146, 224, and 225
The procedures in Rule 146 (Return of Transcript and Original Papers), Rule 224 (Withdrawal of Charges by Attorney for the Commonwealth), and Rule 225 (Information: Filing, Contents, Function) are triggered when a defendant is held for court after a preliminary hearing. With the addition of the requirement that the issuing authority forward a case to the court of common pleas for further proceedings when a defendant fails to appear for the preliminary hearing, the Committee agreed that these rules should be amended to include this new provision. Therefore, the phrase ''after a case is forwarded to the court of common pleas when a defendant has failed to appear for the preliminary hearing'' has been added to Rules 146(a), 224(a), and 225(a) after the ''held for court'' language.
In addition to the above changes, Rule 146(b) is being amended to require that, in cases in which the defendant has failed to appear for the preliminary hearing, the issuing authority must transmit the transcript at the same time he or she forwards the case to the court of common pleas for further proceedings.
Finally, Rule 146(a) and the Comment have been amended to reflect that there are rules, other than Rules 26 and 142, which require that certain information be included in the transcript to make a record of the proceedings before the district justice.
2. Rule 231 (Presentation of Information without Preliminary Hearing)
Rule 231 sets forth the procedures for filing an information without a preliminary hearing. Paragraph (a) limits this procedure to cases in which the preliminary hearing can not be held for good cause. Aware that a defendant's failure to appear for a preliminary hearing, without more, has been construed in caselaw as not being sufficient ''good cause'' for filing an information without a preliminary hearing, see Commonwealth v. Costello, 448 A.2d 38 (Pa. Super. 1982), the Committee was concerned that, without some clarification, some judges or district attorneys would interpret this caselaw as preventing a case from moving once it was forwarded to the court of common pleas pursuant to Rule 143(D). We agreed that Rule 231 should be amended to specifically provide that in cases forwarded to the court of common pleas pursuant to Rule 143(D), the attorney for the Commonwealth is permitted to file an information without the preliminary hearing. See Rule 231(c).
E. Cases in the Philadelphia Municipal Court
As the Committee worked on the proposed new procedures for handling cases in which the defendant fails to appear for the preliminary hearing, several members voiced concerns about the impact these changes would have on the Philadelphia Municipal Court. These members pointed out that there are different considerations when the case is in the Philadelphia Municipal Court. Specifically, only cases involving felonies have preliminary hearings in Philadelphia; the Municipal Court is the only court forwarding felony cases to the court of common pleas; and the Municipal Court's administrative and monitoring systems are different and separate from the Statewide district justice computer system. In view of these differences, the Committee was persuaded that, in Philadelphia cases in which a defendant fails to appear for a preliminary hearing, the Philadelphia Municipal Court could continue to proceed under its local practice, including the issuing of bench warrants. We also wanted to give that court the option to proceed under the new procedures in Rule 143(D).
The Committee concluded that the best way to accomplish these changes was to amend Rule 6003 (Procedure in Non-Summary Cases in Municipal Court) to specifically cover both preliminary hearings and cases in which the defendant fails to appear for the preliminary hearing. The new provision would permit Municipal Court judges to continue to issue arrest warrants for a defendant who fails to appear for the preliminary hearing. However, because the scope of Chapter 6000 is limited in present Rule 6000 (Scope of Rules) to Municipal Court cases,4 we were concerned that merely adding the preliminary hearing/failure to appear procedures to Rule 6003 was technically inaccurate. To correct this problem, the Committee is proposing amendments to Rules 6000, 6001, and 6003 which broaden the scope of Chapter 6000 to encompass not only Municipal Court cases, but also the preliminary procedures in cases charging felonies, including preliminary arraignments and preliminary hearings. These amendments also make it clear that, for cases in the Philadelphia Municipal Court, any procedure which is governed by a Statewide Rule of Criminal Procedure but not specifically covered in Chapter 6000 is governed by the relevant Statewide rule. See Rule 6000(b).
The amendments to Rule 6003 provide that the preliminary hearing must be conducted as provided in Rule 141 (Preliminary Hearing), and make it clear that Municipal Court judges may issue warrants for the arrest of a defendant who fails to appear for the preliminary hearing. The Comment explains that, in cases in which the defendant fails to appear for the preliminary hearing, the Municipal Court judge may either continue to follow present Municipal Court practice or follow the new Rule 143(D) procedures. See Rule 6003.E.
[Pa.B. Doc. No. 96-802. Filed for public inspection May 17, 1996, 9:00 a.m.] _______
1 In addition, Rule 141 will be amended to make it clear that Rule 141 only applies to the procedures governing the preliminary hearing itself.
2 This prohibition does not apply to cases in the Philadelphia Municipal Court. See Section E below.
3 Although not specifically provided for in either Rule 112 or 140, notice of a preliminary hearing may also be given to a defendant through the defendant's attorney of record. See Rule 143(D)(1)(c).
4 Rule 6001 (Disposition of Criminal Cases--Philadelphia Municipal Court) defines a Municipal Court case as ''any misdemeanor under the Crimes Code or other statutory criminal offense for which no prison term may be imposed or which is punishable by a term of imprisonment of not more than five (5) years, including any indictable offense other than a summary offense, under the Motor Vehicle laws, shall be a Municipal Court case.''
