[ 234 PA. CODE CH. 10 ] Order Amending Rule of Criminal Procedure 1002; No. 380; Doc. No. 2 Order [39 Pa.B. 2568]
[Saturday, May 23, 2009]Per Curiam:
Now, this 12th day of May, 2009, 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 Rule of Criminal Procedure 1002 is amended as follows.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective February 1, 2010.
Annex A TITLE 234. RULES OF CRIMINAL PROCEDURE PART I. GENERAL CHAPTER 10. RULES OF CRIMINAL PROCEDURE FOR THE PHILADELPHIA MUNICIPAL COURT AND THE PHILADELPHIA TRAFFIC COURT PART A. Philadelphia Municipal Court Procedures Rule 1002. Procedure in Summary Cases.
* * * * * (B) Non-traffic summary proceedings shall be instituted either by a citation issued to the defendant[:] or arresting without a warrant when arrest is specifically authorized by law.
(1) Issuance of Citation
(a) [Except as provided in paragraph (B)(2), the law enforcement officer shall take the defendant into custody and transport him or her to the appropriate district police station, where without unnecessary delay the law enforcement officer or a superior officer shall prepare and issue to the defendant a citation and a notice to appear. The defendant shall not be slated, fingerprinted, or photographed, except as provided by law.] The law enforcement officer shall issue the citation to the defendant pursuant to Rule 405 (Issuance of Citation), together with a notice to appear, unless required to proceed pursuant to paragraph (B)(1)(e). The notice to appear shall direct the defendant to appear before a judge or trial commissioner on a date and at a time certain in a specified court room.
[(2)] (b) When authorized by local rule promulgated pursuant to Rule 105 (Local Rules), [in lieu of taking the defendant into custody as provided in paragraph (B)(1),] the law enforcement officer may prepare, verify, and transmit a citation electronically. The law enforcement officer contemporaneously shall give the defendant a paper copy of the citation containing all the information required by Rule 403(A) (Contents of Citation) and a notice to appear. The notice to appear shall direct the defendant to appear before a judge or trial commissioner on a date and at a time certain in a specified court room.
[(3) Except as provided in paragraph (B)(5), in all cases, the law enforcement officer shall release the defendant on the defendant's own recognizance. The notice to appear shall direct the defendant to appear before a trial commissioner in a specified court room.]
[(4)] (c) Within 5 days after issuance of the citation and notice to appear, the citation shall be filed with the clerk of Municipal Court.
(d) When the defendant appears before the judge or trial commissioner as provided in paragraph (B)(1)(a) or (B)(1)(b), the judge or trial commissioner shall explain the process to the defendant.
(i) If the defendant enters a guilty plea, the judge or trial commissioner shall impose the fines and costs.
(ii) If the defendant enters a not guilty plea, the judge or trial commissioner shall set a date for trial before a judge and issue a subpoena to the defendant.
(iii) If applicable, after paying any fee imposed, the defendant may be accepted into the Municipal Court's summary case diversionary program, or any other diversionary program offered pursuant to local rule promulgated pursuant to Rule 105 (Local Rules). When the defendant successfully completes the Municipal Court's summary case diversionary program, the defendant's arrest record automatically will be expunged.
[(5)] (e) When required by local rule promulgated pursuant to Rule 105 (Local Rules), [rather than releasing the defendant pursuant to paragraph (B)(3), a] the law enforcement officer shall take the defendant into custody and transport him or her to the appropriate district police station, where, without unnecessary delay, the law enforcement officer or a superior officer shall prepare and issue the citation to the defendant. Thereafter, the law enforcement officer without unnecessary delay shall transport the defendant to the Municipal Court for proceedings before a [Municipal Court] judge, and the case shall proceed as provided by local rule promulgated pursuant to Rule 105 (Local Rules).
(f) The defendant shall not be slated, fingerprinted, or photographed, except as provided by law.
(2) Arrest Without a Warrant
(a) When an arrest without a warrant in a non-traffic summary case is authorized by law, the police officer shall take the defendant into custody and transport him or her to the appropriate district police station, where, without unnecessary delay, the police officer or a superior officer shall prepare and issue a citation to the defendant.
(b) Except when the police officer is required to proceed pursuant to paragraph (B)(1)(e), or as otherwise provided in this rule, the case shall proceed as provided in Rule 441.
(c) If the defendant is to be released pursuant to Rule 441(B), the defendant shall be released on his or her own recognizance and given a notice to appear on a date and at a time certain in a specified court room.
(d) If the defendant is not released under Rule 441(B), the defendant without unnecessary delay shall be brought before a judge, who shall proceed as provided in Rule 441(C).
[(C) Procedures Following Institution of Summary Proceedings
(1) When the defendant is taken before a Municipal Court judge pursuant to paragraph (B)(5), the case shall proceed as provided by local rule promulgated pursuant to Rule 105 (Local Rules).
(2) When the defendant appears before a trial commissioner, the trial commissioner shall explain the process to the defendant.
(a) If the defendant enters a guilty plea, the trial commissioner shall impose the fines and costs.
(b) If the defendant requests a trial before a Municipal Court judge, the trial commissioner shall set a date for trial and issue a subpoena to the defendant.
(c) If applicable, after paying any fee imposed, the defendant may be accepted into the Municipal Court's summary case diversionary program, or any other diversionary program offered pursuant to local rule promulgated pursuant to Rule 105 (Local Rules). When the defendant successfully completes the Municipal Court's summary case diversionary program, the defendant's arrest record automatically will be expunged.
(D)] (C) If the defendant fails to appear pursuant to the notice to appear or a subpoena, a bench warrant shall be issued.
[(E)] (D) When the same conduct is proscribed under an Act of Assembly and a municipal criminal ordinance, the charge shall be brought under the Act of Assembly and not under the ordinance.
Comment * * * * * The 2009 amendments to paragraph (B) conform the non-traffic summary citation procedures in Philadelphia with the statewide procedures governing the institution of a non-traffic summary case by issuing a citation to the defendant in person or arresting the defendant without a warrant. See Rules 405 (Issuance of Citation) and 440 (Arrest Without Warrant). The amendments require the police officer to issue a citation as provided in Rule 405 and proceed pursuant to paragraph (B)(1)(a) or (B)(1)(b), unless the case falls within the jurisdiction of one of Philadelphia Municipal Court's Nuisance Night Courts or Community Courts, or to arrest without a warrant when such an arrest is authorized by law.
The contents of the citation must comply with the requirements of Rule 403(A). The notice to appear required by paragraphs (B)(1)(a), (B)(1)(b), and (B)(2)(c) may be added to the citation form.
Arrests without a warrant in summary cases are authorized only in exceptional circumstances, such as cases involving enhanced penalties, or when the defendant fails to produce identification, or when there is violence or the imminent threat of violence, or when there is a likelihood that the defendant will flee.
Nothing in this rule prevents the filing of a citation pursuant to Rules 410 and 411.
The 2009 amendments do not modify the current procedures governing Philadelphia Municipal Court's Nuisance Night Courts and Community Courts that are implemented by paragraph (B)(1)(e).
Although defendants in summary cases ordinarily are not slated, photographed, or fingerprinted, the issuing authority should require the defendant to submit to administrative processing and identification procedures (such as fingerprinting) as authorized by law. See, e.g., 18 Pa.C.S. § 3929(g) concerning fingerprinting in retail theft cases.
[The contents of the citation must comply with the requirements of Rule 403.]
All summary offenses under the motor vehicle laws and parking violations are under the jurisdiction of the Philadelphia Traffic Court. See 42 Pa.C.S. §§ 1301--1303, 1321.
Official Note: Rule 6002 adopted June 28, 1974, effective July 1, 1974; amended July 1, 1980, effective August 1, 1980; Comment revised January 28, 1983, effective July 1, 1983; amended July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; amended February 1, 1989, effective July 1, 1989; amended August 9, 1994, effective January 1, 1995; renumbered Rule 1002 and amended March 1, 2000, effective April 1, 2001. Rule 1002 rescinded August 15, 2005, effective February 1, 2006, and replaced by new Rule 1002; amended May 12, 2009, effective February 1, 2010.
Committee Explanatory Reports:
* * * * * Final Report explaining the May 12, 2009 changes to paragraph (B) concerning issuing citations and arrest without warrants in summary cases published at 39 Pa.B. 2569 (May 23, 2009).
FINAL REPORT1 Amendments to Pa.R.Crim.P. 1002 (Procedure in Summary Cases) PHILADELPHIA NON-TRAFFIC SUMMARY CITATION PROCEDURES On May 12, 2009, effective February 1, 2010, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule 1010 (Procedure in Summary Cases) to bring the Philadelphia non-traffic summary citation procedures into conformity with the summary citations procedures in the rest of the state.
I. Introduction
The Committee undertook a review of the summary citation procedures in Philadelphia after receiving a letter from Philadelphia Police Commissioner Ramsey in which he requested that the Committee consider bringing Philadelphia non-traffic summary citation procedures in line with the statewide non-traffic summary citation procedures. Because the issues are distinct to Philadelphia, the Committee referred the matter to a Subcommittee that included representatives from the Committee, from Philadelphia, and from the Administrative Office of Pennsylvania Courts (AOPC).
II. Background
Under current Rule of Criminal Procedure 1002, in all non-traffic summary cases, the police officer is required to take the defendant into custody and transport him or her to the police station where a citation is prepared and issued to the defendant. Unless the offense is one of the offenses within the jurisdiction of the Municipal Court's community courts and is committed in a community court district during specified hours, the defendant is given a notice to appear and is released. When the case falls within the parameters of the community court local rule procedures, the defendant is taken before a Municipal Court judge.
In the rest of the State, pursuant to Rule of Criminal Procedure 405, a law enforcement officer is required to give the defendant in a summary case a citation at the time of the offense, and the defendant is free to leave. The defendant is required to mail in a plea with the citation and either fines and costs, if a guilty plea, or collateral, if a not guilty plea. See Rules 406--409. In those cases in which the police officer is authorized to arrest without a warrant, pursuant to Rule 440, the police officer must release the defendant from custody if the defendant meets the criteria set forth in Rule 441(B) or take the defendant before a magisterial district judge without unnecessary delay as provided in Rule 441(C).
III. Discussion of Rule 1002 Changes
Although the current provisions in Rule 1002 for handling non-traffic summary citation procedures in Philadelphia have been amended, the local rule provision for some summary cases to be handled in the Municipal Court's community courts have been retained.2 These community courts have been successful in accomplishing the Municipal Court's goals of promptly addressing quality of life-type offenses, providing screening procedures, and providing prompt access to social services and rehabilitation programs. In addition, the technical aspects of implementing the rule changes, including changes to the citation form to delete the defendant's signature line and add a verification of issuance by the police officer, will be handled locally by Municipal Court, the Philadelphia police, and the Philadelphia District Attorney's office.
Issuance of Citation
New paragraph (B)(1) sets forth the procedures for instituting a non-traffic summary case by issuing a citation. New paragraph (B)(1)(a) requires the law enforcement officer to issue the citation to the defendant pursuant to Rule 405, unless the case falls within the community court procedures in paragraph (B)(1)(e) (current Rule 1002(B)(5)). The new citation procedures retain the requirements that a notice to appear be included with the citation and that the notice direct the defendant to appear before a Municipal Court judge or a trial commissioner on a date certain (current Rule 1002(B)(3)). The last paragraph of current paragraph (B)(1) providing that the defendant is not to be fingerprinted, etc., also has been retained as new paragraph (B)(1)(f).
Pursuant to new paragraph (B)(1)(a), except in community court cases, when the case is one in which a citation must be issued under the rules, the law enforcement officer may not take the defendant into custody to transport to the police station for issuance of the citation. Accordingly, current Rule 1002(1) has been deleted.
If the case falls within the community court procedures, the law enforcement officer must (1) take the defendant into custody, transport him or her to the appropriate district police station, and prepare and issue the citation to the defendant; and (2) thereafter, transport the defendant to the community court. These procedures, set forth in current paragraph (B)(1), now appear in new paragraph (B)(1)(e).
The procedures from current paragraph (C)(2) that must be followed when a defendant appears before the judge or trial commissioner after being issued a citation, with minor conforming changes, have been moved to paragraph (B)(1)(d).
Arrest Without Warrant
Under Rules 440--441, when a defendant elsewhere in the state is arrested without a warrant in a summary case, the police officer has 2 options--either release the defendant pursuant to Rule 441(B), or take the defendant without unnecessary delay before the proper issuing authority pursuant to Rule 441(C). When the defendant is released, a citation is issued to the defendant and the case proceeds pursuant to Rule 405. When a defendant is taken before the proper issuing authority, a citation is filed and the defendant enters a plea, etc. See Rule 441. The Committee agreed this procedure should apply to Philadelphia cases as well as to summary cases in the rest of the state, but recognized that the procedures would need to be modified to accommodate the procedures Municipal Court already has in place to address the special needs of the court.
New paragraph (B)(2) sets forth the arrest without warrant procedures. New paragraph (B)(2)(a) incorporates the procedures in current Rule 1002(B)(1) providing, when an arrest without a warrant in a non-traffic summary case is authorized by law, that the defendant is to be taken into custody and transported to the appropriate police district by a police officer, where a citation is prepared and issued to the defendant. New paragraph (B)(2)(b) provides that the case is to proceed pursuant to Rule 441 except when the case falls within the community court exception in new (B)(1)(e) or as otherwise provided in the rule. Thus, although, for the most part, the police must follow Rule 441, there are some procedural differences.
New paragraphs (B)(2)(c) and (B)(2)(d) set forth procedures that vary from the Statewide procedures but are consistent with current Rule 1002. When a defendant is to be released pursuant to Rule 441(B), the release is ''ROR,'' as required in current Rule 1002(B)(3), and the defendant is given a notice to appear. When the defendant is not released, the rule requires the defendant be taken before a Municipal Court judge and the case will proceed pursuant to Rule 441(C). Municipal Court assigns an ''emergency'' judge to be on call twenty-four hours a day, seven days a week, 365 days a year. Accordingly, when a defendant is arrested without a warrant in a summary case in Philadelphia, the police will proceed as provided in Rule 441(C)(1) and take the defendant without unnecessary delay before the Municipal Court judge, or, if outside the normal business hours of the Municipal Court, the emergency judge when available pursuant to Rule 117.
Comment The Comment also has been revised correlative to the new changes in Rule 1002 with elaboration on the new citation procedures and the exception to the procedures for community court cases.
The Committee incorporated the language from the Rule 440 Comment explaining the limitations on arrests without warrants in summary cases, and added to the examples of exceptional circumstances cases involving enhanced penalties and cases in which a defendant fails to produce identification.
During the Committee's discussions, it was noted that the police officers in Philadelphia rarely proceed by filing a citation as provided in Rules 410 and 411. For those rare cases in which it would be appropriate for the police to proceed pursuant to Rules 410 and 411, a statement has been added to the Comment to the effect that nothing in the rule is intended to prevent filing a citation pursuant to Rules 410 and 411.
[Pa.B. Doc. No. 09-919. Filed for public inspection May 22, 2009, 9:00 a.m.] _______
