673 Order adopting new Rules 87 and 88; amending Rule 145; and approving Rule 83 comment revisions; no. 220; doc. no. 2

[234 PA. CODE CHS. 50 AND 100]

Order Adopting New Rules 87 and 88; Amending Rule 145; and Approving Rule 83 Comment Revisions; No. 220; Doc. No. 2

[27 Pa.B. 2118]

   The Criminal Procedural Rules Committee has prepared a Final Report explaining the April 18, 1997 changes to the Rules of Criminal Procedure. These changes provide uniform procedures in summary criminal cases for the withdrawal of charges and for the dismissal of a case upon satisfaction being made to an aggrieved person or an agreement to make satisfaction, and are comparable to the procedures in court cases. The Final Report follows the Court's Order.

Order

Per Curiam:

   Now, this 18th day of April, 1997, upon the recommendation of the Criminal Procedural Rules Committee; this Recommendation having been published at 26 Pa.B. 3630 (August 3, 1996) and in the Pennsylvania Reporter (Atlantic Second Series Advance Sheets Vol. 678) before adoption, with a Final Report to be published with this Order:

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

   (1)  new Pa.Rs.Crim.P. 87 and 88 are hereby promulgated;

   (2)  Pa.R.Crim.P. 145 is hereby amended; and

   (3)  the revision of the Comment to Pa.R.Crim.P. 83 is hereby approved, all in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 1997.

Annex A

TITLE 234.  CRIMINAL RULES

PART I.  GENERAL

CHAPTER 50.  PROCEDURE IN SUMMARY CASES

Rule 83.  Trial in Summary Cases.

   [(a)] (A)  ***

   [(b)] (B)  ***

   [(c)] (C)  ***

   [(d)] (D)  ***

   [(e)] (E)  ***

   Official Note: Adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended February 2, 1989, effective March 1, 1989; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; Comment revised April 18, 1997, effective July 1, 1997.

Comment
[This rule replaces previous Rule 63.]

*      *      *      *      *

   The affiant may be permitted to withdraw [a prosecution] the charges pending before the issuing authority. See Rule 87 (Withdrawal of Charges in Summary Cases).

*      *      *      *      *

Committee Explanatory Reports:

   Final Report explaining the October 28, 1994 amendments published with the Court's Order at 24 Pa.B. [5843] 5841 (November 26, 1994).

   Final Report explaining the April 18, 1997 Comment revision cross-referencing Rule 87 published with the Court's Order at 27 Pa.B. 2119 (May 3, 1997).

Rule 87. Withdrawal of Charges in Summary Cases.

   (A)  In any summary case pending before an issuing authority, at any time before the completion of the summary trial or acceptance of a guilty plea, the issuing authority may permit the affiant, or the affiant's designee, to withdraw one or more of the charges.

   (B)  When an issuing authority permits an affiant or the affiant's designee to withdraw one or more of the charges, the issuing authority shall record the withdrawal on the transcript, and promptly shall notify the defendant in writing.

   Official Note: Adopted April 18, 1997, effective July 1, 1997.

Comment

   This rule permits the withdrawal of charges in summary cases pending before an issuing authority.

   To ensure that an adequate record is made of any withdrawals, the issuing authority is required to include in the transcript of the case the fact that he or she permitted the withdrawal. In addition, the issuing authority must give the defendant written notice of the withdrawal.

   For the procedures for withdrawal of charges in a court case pending before an issuing authority, see Rule 151.

Committee Explanatory Reports:

   Final Report explaining the provisions of new Rule 87 published with the Court's Order at 27 Pa.B. 2119 (May 3, 1997).

Rule 88.  Dismissal in Summary Cases Upon Satisfaction or Agreement.

   (A)  When a defendant is charged with a summary offense, the issuing authority may dismiss the case upon a showing that:

   (1)  the public interest will not be adversely affected;

   (2)  the attorney for the Commonwealth, or in cases in which no attorney for the Commonwealth is present at the summary proceeding, the affiant, consents to the dismissal;

   (3)  satisfaction has been made to the aggrieved person or there is an agreement that satisfaction will be made to the aggrieved person; and

   (4)  there is an agreement as to who shall pay the costs.

   (B)  When an issuing authority dismisses a case pursuant to paragraph (A), the issuing authority shall record the dismissal on the transcript.

   Official Note: Adopted April 18, 1997, effective July 1, 1997.

Comment

   This rule permits an issuing authority to dismiss a summary case when the provisions of paragraph (A) are satisfied.

   Paragraphs (A)(1) through (4) set forth those criteria that a defendant must satisfy before the issuing authority has the discretion to dismiss the case under this rule.

   The requirement in paragraph (A)(2) that, when the attorney for the Commonwealth is present at the summary proceeding, he or she must consent to the dismissal, is one of the criteria, along with the other enumerated criteria, which gives the issuing authority discretion to dismiss a case under this rule, even when the affiant refuses to consent.

   The requirement in paragraph (B) that the issuing authority include in the transcript of the case the fact that he or she dismissed the case is intended to ensure that an adequate record is made of any dismissals under this rule.

   For dismissal upon satisfaction or agreement in a court case charging a misdemeanor which is pending before an issuing authority, see Rule 145.

   For dismissal upon satisfaction or agreement by a judge of the court of common pleas, see Rule 314.

Committee Explanatory Reports:

   Final Report explaining the provisions of new Rule 88 published with the Court's Order at 27 Pa.B. 2119 (May 3, 1997).

CHAPTER 100.  PROCEDURE IN COURT CASES

PART IV.  PROCEEDINGS BEFORE ISSUING AUTHORITIES

Rule 145.  Dismissal Upon Satisfaction or Agreement.

   When a defendant is charged with a misdemeanor [which is not alleged to have been committed by force or threat thereof], the issuing authority may dismiss the case upon a showing that:

   (a)  the public interest will not be adversely affected; [and]

   (b)  [either the aggrieved person or] the attorney for the Commonwealth, or in cases in which there is no attorney for the Commonwealth present, the affiant, consents to the dismissal; [and]

*      *      *      *      *

   Official Note: Formerly Rule 121, 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 January 28, 1983, effective July 1, 1983; amended April 18, 1997, effective July 1, 1997.

Comment

   [The 1973 amendment added the first sentence of former paragraph (b) and all of former paragraph (c).

   Former paragraphs (a) and (b) were deleted in 1983 as unnecessary in view of the Judiciary Act Repealer Act, which repealed the statutes requiring the issuing authority to make an effort to effectuate a settlement. See 42 P. S. § 20002(a)(916) (Supp. 1982).

   Former paragraph (c) was amended in 1983 to] Paragraphs (a) through (d) set forth [concisely] those criteria that a defendant must satisfy before the issuing authority has the discretion to dismiss the case under this rule.

   The requirement in paragraph (b), that when the attorney for the Commonwealth is present, he or she must consent to the dismissal, is one of the criteria [in every case was deleted as an unnecessary criterion at this stage of the proceedings. However, it is retained as an alternative criterion] which, along with the other enumerated criteria, [would give] gives the issuing authority discretion to dismiss, even when the affiant [aggrieved party] refuses to consent. [If the aggrieved person consents, the issuing authority may consider whether the attorney for the Commonwealth objects to the dismissal, but it is not bound by that objection.]

   For dismissal upon satisfaction or agreement in summary cases, see Rule 88.

   For court dismissal upon satisfaction or agreement, see Rule 314.

Committee Explanatory Reports:

   Final Report explaining the April 18, 1997 amendments aligning the rule with Rule 88 published with the Court's Order at 27 Pa.B. 2119 (May 3, 1997).

FINAL REPORT

New Pa.Rs.Crim.P. 87 and 88;
Amendments to Pa.R.Crim.P. 145; and
Revision of the Comment to Pa.R.Crim.P. 83

Withdrawal of Charges and Dismissal Upon
Satisfaction or Agreement in Summary Criminal Cases

Introduction

   On April 18, 1997, effective July 1, 1997, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court adopted new Rules of Criminal Procedure 87 (Withdrawal of Charges in Summary Cases) and 88 (Dismissal in Summary Cases upon Satisfaction or Agreement), amended Rule 145 (Dismissal upon Satisfaction or Agreement), and approved the revision of the Comment to Rule 83 (Trial in Summary Cases). These new rules provide uniform procedures in summary criminal cases for the withdrawal of charges and for the dismissal of a case upon satisfaction being made to an aggrieved person or an agreement to make satisfaction, and are comparable to the procedures in court cases. This Final Report highlights the Committee's considerations in formulating these amendments.¹

   Recent inquiries with the Committee noted that there are no summary rules equivalent to Rules 151 (Withdrawal of Prosecution Before Issuing Authority) and 145 (Dismissal upon Satisfaction or Agreement) in court cases, and therefore asked whether withdrawals and dismissals upon agreement are permitted in summary cases, and if so, what procedures the minor judiciary should use. The correspondents pointed out that, although some district justices are permitting charges to be withdrawn in summary cases and are dismissing summary cases upon satisfaction or agreement, and some of them are following the procedures for court cases set forth in Rules 145 and 151, others have been reluctant to proceed in this manner in summary cases without specific authorization in the rules.

   In view of the lack of uniformity and the confusion about the appropriate procedures, and recognizing that these procedures are beneficial to the criminal justice system, the Committee agreed that the summary case rules should address the withdrawal of charges in summary cases pending before issuing authorities and the dismissal of summary cases when there has been satisfaction or an agreement for satisfaction.

Discussion of Rule Changes

   New Rule 87 (Withdrawal of Charges in Summary Cases)

   Paragraph (A) authorizes an issuing authority to permit an affiant or the affiant's designee to withdraw one or more charges at any time before the completion of the summary trial or the acceptance of a guilty plea, and is comparable to the procedures for court cases under Rule 151 (Withdrawal of Prosecution Before Issuing Authority). Aware that an attorney for the Commonwealth is rarely assigned to summary criminal cases, the Committee considered whether Rule 87 should require that the attorney for the Commonwealth approve the withdrawal of charges. In view of the minor nature of summary cases, we agreed that it would be unnecessarily burdensome to require either that only the attorney for the Commonwealth may withdraw the charges or that the attorney for the Commonwealth must approve the withdrawal, and therefore have provided that the affiant may withdraw the charges.

   Following publication of the proposal, the Committee received comment asking us to consider permitting withdrawals by the affiant's designee, similar to what is provided in Rule 151 for court cases. The correspondents pointed out that there may be times when the affiant wants to withdraw the charges, but was unavailable for some reason. Recognizing the benefits of permitting the affiant to designate someone else to act in his or her place and withdraw the charges, paragraph (A) permits the affiant's designee to withdraw charges.

   Paragraph (B) requires the issuing authority to record on the transcript any withdrawals he or she permits. This requirement provides a record and a means of monitoring these cases. The district justice also must promptly notify the defendant in writing that the charges have been withdrawn.

   The Comment cross-references Rule 151 for similar procedures in court cases.

   Proposed New Rule 88 (Dismissal In Summary Cases Upon Satisfaction or Agreement)

   New Rule 88 provides the procedures for the dismissal of a summary case when a defendant has settled with the aggrieved person or has made an agreement to settle, and is comparable to Rule 145 (Dismissal Upon Satisfaction or Agreement), which provides for the dismissal of misdemeanors pending before an issuing authority.

   Paragraph (A) sets forth the criteria that must be met before an issuing authority has the discretion to dismiss a summary case under this rule. Because we agreed that summary case dismissals upon agreement should be handled in the same way as court cases under Rule 145, we included the same criteria contained in Rule 145. As explained in the Comment, all the criteria must be satisfied before an issuing authority may dismiss a case.

   Paragraph (B) requires that the issuing authority record on the transcript any dismissal under this rule. This requirement creates a record of the dismissal and a means of monitoring these cases.

   The Comment cross-references Rule 145. It also cross-references Rule 314 for similar procedures in court cases pending before a judge of the court of common pleas.

   Amendments to Rule 145 (Dismissal Upon Satisfaction or Agreement)

   When the Committee developed new Rule 88, we also reviewed Rule 145, which applies to dismissals of misdemeanors pending before an issuing authority. Because we agreed that Rules 88 and 145 should provide comparable procedures, Rule 145 has been amended as follows.

   (1)  In the introductory paragraph, the limitation that dismissals upon satisfaction are only authorized in cases in which the misdemeanor is ''not alleged to have been committed by force or threat thereof'' has been deleted. Several members noted that many of the cases which come before district justices for dismissal upon agreement typically involve misdemeanors arising out of drunken brawls or arguments between friends or neighbors that deteriorated into shoving matches or punches. Although these cases involve ''force'' or a ''threat of force,'' the incidents are relatively minor, and, after a cooling-off period, the parties prefer to have the matters dismissed if the damages are paid. Based on these considerations, the Committee agreed that all cases involving force or the threat of force should not be automatically excluded from the possibility of a dismissal upon satisfaction, particularly since Rule 145 is limited to misdemeanors.

   (2)  Prior to the 1997 amendments, paragraph (b) required a showing that ''either the aggrieved person or the attorney for the Commonwealth consents to the dismissal.'' The question arose about what happens when the attorney for the Commonwealth disagrees with the dismissal but the aggrieved party consents. Although the present Comment suggests that the attorney for the Commonwealth's disagreement would be a consideration for the district justice in determining whether to dismiss a case, some members expressed the view that, if the ''force or threat thereof'' language would be deleted from the introductory paragraph, the rule should not permit a dismissal if the attorney for the Commonwealth did not agree. Other members observed, however, that requiring the consent of both the attorney for the Commonwealth and the aggrieved party, or requiring the consent of the attorney for the Commonwealth in every case, would unduly complicate the procedure, particularly in those judicial districts which rarely have a district attorney present at proceedings before the district justice because of limited resources. The Committee also considered that in some cases, the aggrieved party and the affiant would be different individuals, and while the aggrieved party may agree to a dismissal once he or she has received restitution, the affiant may not agree because there are other interests to be protected. As pointed out in some of the publication responses, in these cases, the affiant should have a say in whether the case is dismissed.

   In view of these considerations and the concerns raised in the publication responses, Rule 145(b) has been amended to provide that, if the attorney for the Commonwealth is present at the proceeding, the attorney for the Commonwealth's consent is one of the four criteria that must be met before the district justice may dismiss the case. If the attorney for the Commonwealth is not present, then the affiant must consent to the dismissal.

   The Comment has been revised to reflect these changes, and cross-references new Rule 88 for the procedures in summary cases.

   Revision of the Comment to Rule 83 (Trial in Summary Cases)

   One publication response suggested that new Rule 87 is unnecessary in view of the paragraph in the Rule 83 Comment which provides:

   The affiant may withdraw a prosecution pending before the issuing authority.

   The Committee did not agree with this assessment, concluding that a separate rule addressing withdrawals would better resolve the confusion and result in more uniformity. However, to make it clear to anyone reading the Rule 83 Comment that Rule 87 governs withdrawal of charges in summary cases, a cross-reference to new Rule 87 has been at the end of this paragraph.

______

   ¹ The Committee's Final Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.

[Pa.B. Doc. No. 97-673. Filed for public inspection May 2, 1997, 9:00 a.m.]