1427 Proposed procedures for using advanced communications technology in preliminary arraignments following a defendant's arrest in a court case

Title 234--RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

[234 PA. CODE CHS. 1, 20 AND 100]

Proposed Procedures for Using Advanced Communications Technology in Preliminary Arraignments Following a Defendant's Arrest in a Court Case

[29 Pa.B. 4536]

Introduction

   The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rules of Criminal Procedure 22 (Location of Proceedings Before Issuing Authority), 102 (Procedure in Court Cases Initiated by Arrest Without Warrant), 123 (Procedure in Court Cases When Warrant of Arrest is Executed Within Judicial District of Issuance), and 124 (Procedure in Court Cases When Warrant of Arrest is Executed Outside Judicial District of Issuance). These changes clarify the procedures for using advanced communication technology in preliminary arraignments following a defendant's arrest in a court case. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.

   The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.

   The text of the proposed rule changes precedes the Report.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through 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 Wednesday, September 22, 1999.

By the Criminal Procedural Rules Committee

J. MICHAEL EAKIN,   
Chair

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

CHAPTER 20.  ISSUING AUTHORITIES: VENUE, LOCATIONS, AND RECORDING OF PROCEEDINGS

Rule 22.  Location of Proceedings Before Issuing Authority.¹

   [(a)] (A)  An issuing authority within the magisterial district for which he or she is elected or appointed shall have jurisdiction and authority at any time other than during his or her established office hours to receive complaints, issue warrants, hold preliminary arraignments, fix and take bail and issue commitments to jail at his or her residence within the magisterial district, but all hearings and trials before such issuing authority shall be held publicly at his or her established office, or at another location, within or without the magisterial district, designated by the President Judge, unless an emergency exists or the number of persons lawfully assembled and entitled to be present is too great to be accommodated in such place, in which event the hearing or trial may be adjourned as quickly as may be, to a suitable place, within the magisterial district.

   [(b)] (B)  The President Judge shall, where local conditions require, establish procedures whereby, in all or certain classes of cases, preliminary hearings may be held at a central place or places within the Judicial District at certain specified times. The procedures established shall provide either for the transfer of the case or the transfer of the issuing authority to the designated central place as the needs of justice and efficient administration require. When the defendant or [his] the defendant's counsel and the attorney for the Commonwealth agree, the preliminary hearing shall be held at the established office of the issuing authority who received the complaint.

   Official Note:  Formerly Rule 156, paragraph [(a)] (A) adopted January 16, 1970, effective immediately; paragraph [(a)]  (A) amended and paragraph [(b)] (B) adopted November 22, 1971, effective immediately; renumbered as Rule 22, September 18, 1973, effective January 1, 1974; amended            , 1999, effective            , 1999.

Comment

   Paragraph [(b)] (B) of this rule is intended to facilitate compliance with the requirement that defendants be represented by counsel at the preliminary hearing. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L. Ed. 2d 387 (1970).

   This rule permits issuing authorities to perform their official duties from an advanced communication technology site. The site may be located outside the magisterial district or judicial district where the issuing authority presides. See Rule 3 for the definition of ''advanced communication technology.''

   This rule allows the President Judge of a Judicial District the discretion to determine what classes of cases require centralized preliminary hearings and requires [him] the President Judge to establish a schedule of central places to conduct such hearings and the hours thereof.

*      *      *      *      *

Committee Explanatory Reports:

   Report explaining the proposed amendments published at 29 Pa.B. 4539 (August 28, 1999).

CHAPTER 100.  PROCEDURE IN COURT CASES

PART I.  INSTITUTING PROCEEDINGS

   [The language appearing in SMALL CAPITAL LETTERS in Rules 102 and 123 is part of a previous proposal that has been submitted to the Court.² The Report explaining these changes was published at 28 Pa.B. 3931 (August 15, 1998).]

Rule 102.  Procedure in Court Cases Initiated by Arrest Without Warrant.

   [(a)] (A)  Preliminary Arraignment.

   (1)  Except as provided in paragraph [(b)] (B), when a defendant has been arrested without a warrant in a court case, a complaint shall be filed against the defendant and the defendant shall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay.

   (2)  When a preliminary arraignment is conducted by advanced communication technology pursuant to Rule 140(A), the defendant shall be taken to an advanced communication technology site which, in the judgment of the arresting officer, is most convenient to place of arrest without regard to the boundary line of any magisterial district or county.

   [(b)] (B)  Release.

   (1)  When the arresting officer deems it appropriate, the officer may promptly release from custody a defendant who has been arrested without a warrant, rather than taking the defendant before the issuing authority, when the following conditions have been met:

   [(1)] (a)  *    *    *

   [(2)] (b)  *    *    *

   [(3)] (c)  *    *    *

   [(4)] (d)  *    *    *

   [(5)] (e)  *    *    *

   [(c)] (2)  When a defendant is released pursuant to paragraph [(b)] (B)(1), a complaint shall be filed against the defendant within 5 days of the defendant's release. Thereafter, a summons, not a warrant of arrest, shall be issued and the case shall proceed as provided in Rule 110.

   Official Note:  Original Rule 118 and 118(a), adopted June 30, 1964, effective January 1, 1965, suspended January 31, 1970, effective May 1, 1970. New Rule 118 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 130 September 18, 1973, effective January 1, 1974; amended December 14, 1979, effective April 1, 1980; amended April 24, 1981, effective July 1, 1981; amended January 28, 1983, effective July 1, 1983; Comment revised July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; renumbered Rule 102 and amended August 9, 1994, effective January 1, 1995; Comment revised September 26, 1996, effective immediately; amended             , 1999, effective             , 1999.

   Comment

   Paragraph [(a)] (A) requires that the defendant receive a prompt preliminary arraignment. See Rule 140 (Preliminary Arraignment).

   Under paragraph (A), following arrest, the officer may file the complaint with the issuing authority using advanced communication technology.

   Paragraph [(a)] (A) is intended to permit THE USE OF ADVANCED COMMUNICATION TECHNOLOGY (INCLUDING AUDIO-VIDEO EQUIPMENT AND closed circuit television) IN preliminary arraignments.

SEE RULE 140 AND COMMENT FOR THE PROCEDURES GOVERNING THE USE OF ADVANCED COMMUNICATION TECHNOLOGY IN PRELIMINARY ARRAIGNMENTS.

   Paragraph (A)(2) permits a defendant to be transported to an advanced communication technology site that is located outside the judicial district of arrest for preliminary arraignment. The arresting officer should determine which site is the most convenient to the place of arrest without regard to the boundary line of any magisterial district or county. See Section 8953 of the Judicial Code, 42 Pa.C.S. § 8953, that provides for a municipal police officer who is ''beyond the territorial limits of his primary jurisdiction'' to perform certain duties and functions when the officer is ''acting pursuant to the requirements of the Pennsylvania Rules of Criminal Procedure.''

   Paragraph [(b)] (B)(1) provides an exception to the requirement that a defendant be afforded a preliminary arraignment after a warrantless arrest. It permits an arresting officer, in specified circumstances, to release a defendant rather than take the defendant before an issuing authority for preliminary arraignment. Prior to 1994, this exception applied to all DUI cases, but in other cases was only available at the election of individual judicial districts. With the 1994 amendments, the exception is now an option available to arresting officers statewide and may not be prohibited by local rule.

   Pursuant to paragraph [(b)] (B), the police will either promptly arrange for the defendant's release or, if it is necessary to detain the defendant, provide a preliminary arraignment. Prompt release allows, of course, for the administration of any sobriety tests pursuant to the Vehicle Code, 75 Pa.C.S. § 1547, and for the completion of any post-arrest procedures authorized by law.

   With respect to ''necessary'' delay, see, e.g., Commonwealth v. Williams, 400 A.2d 1258 (Pa. 1979).

   Appropriate circumstances for following the procedure under paragraph [(b)] (B)(1) may vary. Among the factors that may be taken into account are whether the defendant resides in the Commonwealth, and whether he or she can safely be released without danger to self or others.

   By statute, when a police officer has arrested a defendant in a domestic violence case, the defendant may not be released but must be brought before the issuing authority for preliminary arraignment. See 18 Pa.C.S. § 2711. See also 23 Pa.C.S. § 6113(c) of the Protection from Abuse Act.

   With reference to the provisions of paragraph [(c)] (B)(2) relating to the issuance of a summons, see also Part IIIA of this Chapter, Summons Procedures.

   For procedures in summary cases initiated by an arrest without warrant, see Rule 71.

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).

   Report explaining the September 26, 1996 Comment revision published with the Court's Order at 26 Pa.B. 4895 (October 12, 1996).

   Report explaining the proposed amendments concerning ''ACT'' provisions published at 29 Pa.B. 4539 (August 28, 1999).

PART III.  SUMMONS AND ARREST WARRANT PROCEDURES IN COURT CASES

PART B.  ARREST WARRANT PROCEDURES

Rule 123.  Procedure in Court Cases When Warrant of Arrest is Executed Within Judicial District of Issuance.

   (A)  When a defendant has been arrested in a court case, with a warrant, within the judicial district where the warrant of arrest was issued, the defendant shall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay.

   (B)  When a preliminary arraignment is conducted by advanced communication technology pursuant to Rule 140(A), the defendant shall be taken to an advanced communication technology site which, in the judgment of the arresting officer, is most convenient to the place of arrest without regard to the boundary line of any magisterial district or county.

   Official Note:  Original Rule 116, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 116 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 122 September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; Comment revised July 12, 1985, effective January 1, 1986, effective date extended to July 1, 1986; renumbered Rule 123 and Comment revised August 9, 1994, effective January 1, 1995; amended             , 1999, effective             , 1999.

   Comment

   This rule was amended in 1983 to permit closed circuit television preliminary arraignment, to insure that the preliminary arraignment is not delayed and the defendant is not detained unduly because of the unavailability of a particular issuing authority (see Rule 23), to reflect that ''judicial district'' is the appropriate subdivision of the Commonwealth, and to make the wording of this rule consistent with related rules. See Rules 76 and 124. These amendments are not intended to affect the responsibility of the police and issuing authorities to insure prompt preliminary arraignments.

SEE RULE 140 AND COMMENT FOR THE PROCEDURES GOVERNING THE USE OF ADVANCED COMMUNICATION TECHNOLOGY, INCLUDING CLOSED CIRCUIT TELEVISION, IN PRELIMINARY ARRAIGNMENTS.

   This rule permits a defendant to be transported to an advanced communication technology site that is located outside the judicial district of arrest for preliminary arraignment. The arresting officer should determine which site is the most convenient to the place of arrest without regard to the boundary line of any magisterial district or county. See Section 8953 of the Judicial Code, 42 Pa.C.S. § 8953, that provides for a municipal police officer who is ''beyond the territorial limits of his primary jurisdiction'' to perform certain duties and functions when the officer is ''acting pursuant to the requirements of the Pennsylvania Rules of Criminal Procedure.''

Committee Explanatory Reports:

   Report explaining the August 9, 1994 Comment revisions 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).

   Report explaining the proposed amendments concerning advanced communication technology provisions published at 29 Pa.B. 4529 (August 28, 1999).

Rule 124.  Procedure in Court Cases When Warrant of Arrest is Executed Outside Judicial District of Issuance.

   [(a)] (A)  Except as provided in paragraph (B), [When] when a defendant has been arrested in a court case, with a warrant, outside the judicial district where the warrant of arrest was issued, the defendant shall be taken without unnecessary delay to the proper issuing authority in the judicial district of arrest for the purpose of posting bail, as permitted by law.

   [(b)] (1)  *    *    *

   [(c)] (2)  When a defendant fails to post bail, the arresting person shall:

   [(1)] (a)  *    *    *

   [(2)] (b)  *    *    *

   [(d)] (3)  *    *    *

   [(e)] (4)  *    *    *

   [(f)] (5)  *    *    *

   [(1)] (a)  *    *    *

   [(2)] (b)  *    *    *

   [(3)] (c)  *    *    *

   [(g)] (6)  *    *    *

   (B)  When a preliminary arraignment is conducted by advanced communication technology pursuant to Rule 140(A), the defendant shall be taken without unnecessary delay to an advanced communication technology site, which, in the judgment of the arresting officer, is most convenient to the place of arrest without regard to the boundary line of any magisterial district or county.

   Official Note:  Original Rule 117 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 117 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 123 September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; renumbered Rule 124 and amended August 9, 1994, effective January 1, 1995; amended December 27, 1994, effective April 1, 1995; amended             , 1999, effective             , 1999.

   Comment

   This rule was amended in 1999 to permit a defendant to have the preliminary arraignment conducted by using advanced communication technology when the defendant is arrested on a warrant executed outside the judicial district in which it was issued.

   When advanced communication technology is not available, however, the case should proceed under paragraph (A). In those cases, [Nothing] nothing in this rule prevents a defendant from consenting to dispense with the procedures in paragraph [(a)] (A)(1) if the defendant is afforded a preliminary arraignment without unnecessary delay in the judicial district where the warrant was issued.

   See Rule 140 and Comment for the procedures governing the use of advanced communication technology, including closed circuit television, in preliminary arraignments.

   This rule permits a defendant to be transported to an advanced communication technology site that is located outside the judicial district of arrest for preliminary arraignment. The arresting officer should determine which site is the most convenient to the place of arrest without regard to the boundary line of any magisterial district or county. See Section 8953 of the Judicial Code, 42 Pa.C.S. § 8953, that provides for a municipal police officer who is ''beyond the territorial limits of his primary jurisdiction'' to perform certain duties and functions when the officer is ''acting pursuant to the requirements of the Pennsylvania Rules of Criminal Procedure,'' and for the execution of warrants of arrest beyond the territorial limits of the police officer's primary jurisdiction. See also Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985).

   [Paragraph (c) was deleted in 1995 as no longer necessary.]

   For preliminary hearing procedures, see Rules 140 and 140A.

   [Section 8953 of the Judicial Code, 42 Pa.C.S. § 8953, provides for the execution of warrants of arrest beyond the territorial limits of the police officer's primary jurisdiction. See also Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985).]

Committee Explanatory Reports:

   Report explaining the August 9, 1994 [amendments] Comment revisions 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).

   Report explaining the December 27, 1994 amendments published at 24 Pa.B. 1673 (April 2, 1994); Final Report published with the Court's Order at 25 Pa.B. 142 (January 14, 1995).

   Report explaining the proposed amendments concerning advanced communication technology provisions published at 29 Pa.B. 4539 (August 28, 1999).

REPORT

Proposed Amendments to Pa.Rs.Crim.P. 22, 102, 123, and 124

Using Advanced Communication Technology in Preliminary Arraignments After Arrest of Defendant

   The Committee has undertaken a review of the Criminal Rules to consider providing procedures for the use of advanced communication technology (''ACT'') in criminal proceedings. The first area of criminal procedure in which we explored the use of ''ACT'' was preliminary arraignments and arraignments, recommending changes that would provide procedures consistent with 42 Pa.C.S. § 8703, which provides, inter alia, that ''the arraignment of the defendant may be satisfied, in the discretion of the court. . .by two-way electronic audio-video communication.''³ During the development of Proposal I, the Committee received correspondence questioning the propriety of law enforcement officers transporting a defendant out of county for a preliminary arraignment when the out of county site is set up to conduct the preliminary arraignment using ''ACT.'' The correspondent pointed out that the Criminal Rules are silent in this regard, and requested that the Committee consider amending the rules specifically to permit this procedure. In support of his idea, the correspondent indicated that when ''ACT'' procedures are used and the ''ACT'' sites are established, there may be a site that is located outside of the judicial district in which an arrest occurred, but that is closer to the site of arrest. The correspondent suggested that the benefits of allowing the law enforcement officers to transport a defendant to an ''out-of-county'' site would be two-fold: it would ''relieve police officers from outlying communities from costly and time-consuming trips'' to appear before the proper issuing authority or to an ''ACT'' site that is not convenient; and would speed up the processing of a defendant. The correspondent also made it clear that ''a defendant would still be arraigned by the proper issuing authority in the jurisdiction of the alleged criminal incident''-- the officers merely would be using out-of-county facilities as the technological link between the defendant and the issuing authority for the preliminary arraignment.

   The Committee, persuaded that the points raised in the correspondence merited consideration, also agreed that they are distinct from the issue whether ''ACT'' can be used in preliminary arraignments, and should be addressed in a separate proposal. In considering this correspondence, the Committee acknowledged that the proposed Criminal Rules providing the procedures for using ''ACT'' in preliminary arraignments in Proposal I do not address whether a law enforcement officer may transport a defendant to an out of judicial district ''ACT'' site for the preliminary arraignment, and therefore, do not preclude it. After further discussion, we agreed that as long as the proper issuing authority conducts the preliminary arraignment, we did not foresee any disadvantages of such a procedure, and agreed that the practice should be permitted. In addition, we considered that, because the changes involving ''ACT'' introduce new technological concepts and considerations to the Criminal Rules, the concept of permitting a law enforcement officer to transport a defendant to a site outside of the territorial limits of the officer's jurisdiction, which, without explanation, seems contrary to accepted procedures, might cause confusion. In view of these considerations, and the points raised in the correspondence, the Committee agreed that the rules should specifically authorize the procedure. We are proposing, therefore, amendments to Rules 102, 123, and 124 that would specifically provide that, when a preliminary arraignment is conducted by ''ACT'' pursuant to Rule 140, the defendant shall be taken to an ''ACT'' site that is most convenient to the place of arrest without regard to the boundary line of any magisterial district or county. Thus, once ''ACT'' sites are established, an arresting officer may transport the defendant to a site that is located outside the magisterial or judicial district of arrest for the preliminary arraignment. Finally, the Committee expects that this procedure will promote the primary goals of ''ACT'' procedures--the quick and efficient administration of justice, and convenience to the parties, including the defendant, involved.

B.  Discussion of Rule Changes

   1.  Rules 102 (Procedure in Court Cases Initiated by Arrest Without Warrant), 123 (Procedure in Court Cases When Warrant of Arrest is Executed Within Judicial District of Issuance), and 124 (Procedure in Court Cases When Warrant of Arrest is Executed Outside Judicial District of Issuance)

   Except for the additional changes to Rules 102 and 124 described below in (A) and (B), the Committee is proposing comparable changes for all three rules. First, a new paragraph would be added to each of these rules that makes it clear that (1) the preliminary arraignment procedures are found in Rule 140, and (2) when the preliminary arraignment is conducted using ''ACT,'' the defendant shall be taken to a site which, in the judgment of the arresting officer, is most convenient to the place of arrest without regard to the boundary line of any magisterial district or county. As we developed this portion of the proposal, the Committee noted that once ''ACT'' sites are established, a police officer has several options. The officer could take a defendant for the preliminary arraignment to the proper issuing authority where the defendant was arrested; to an established ''ACT'' site in the judicial district of arrest; or to an established ''ACT'' site outside of the judicial district in which the defendant was arrested. We agreed that the proposed language encompasses all three possibilities, as well as others that may arise once ''ACT'' is more widely used throughout the Commonwealth.

   A new paragraph would be added to the Comments of all three rules to emphasize that under the new provision in the rules, the arresting officer may transport a defendant to an ''ACT'' site that is outside of the judicial district in which the defendant was arrested. We also have cross-referenced 42 Pa.C.S. § 8953, which authorizes a municipal police officer to perform duties and functions beyond the territorial limits of the officer's jurisdiction when acting under the Pennsylvania Rules of Criminal Procedure.

   (A)  Rule 102:  In addition to the changes described above, Rule 102 would be separated into two paragraphs to make it clear that after a defendant is arrested without a warrant, the arresting officer has two options: provide the defendant with a preliminary arraignment, see Rule 140; or release the defendant. The first new paragraph would make it clear that under paragraph (A), when an arresting officer is required to file a complaint, the officer may use ''ACT'' to file the complaint with the proper issuing authority.

   (B)  Rule 124:  In addition to the changes discussed above, Rule 124 also would be reorganized into two separate paragraphs to make it clear that when a defendant is arrested with a warrant outside of the judicial district in which the warrant was issued, the arresting officer has two options under which to proceed: the defendant shall be taken to the proper issuing authority in the judicial district of arrest for the purpose of posting bail; or the defendant may be taken to an ''ACT'' site for a preliminary arraignment conducted by the proper issuing authority in the judicial district in which the warrant was issued. The Rule 124 Comment also would include a new first paragraph to emphasize the intent of the rule that, even when a defendant is located outside the judicial district in which the warrant was issued, the defendant still may be afforded a prompt preliminary arraignment by the proper issuing authority in the judicial district in which the warrant was issued by using ''ACT.'' A new phrase would be added to the existing Comment language that explains that when ''ACT'' is not available, the case should proceed only under paragraph (A). In order to conform the Comment to the changes included in Proposal I concerning ''ACT'' in preliminary arraignments and arraignments, a new third paragraph would be added providing a cross-reference to Rule 140. Finally, we have removed some language from the Comment that is no longer necessary.

   2.  Rule 22 (Location of Proceedings Before Issuing Authority)

   Rule 22 governs the location(s) from which an issuing authority may conduct official duties. The Committee agreed, in view of the nature of the proposed amendments to Rules 102, 123, and 124 discussed above, that some changes to Rule 22 would be necessary to explain that: 1) an issuing authority may conduct official duties from an ''ACT'' site; and 2) under paragraph (A), the ''ACT'' site may be located outside of the magisterial or judicial district where the issuing authority presides. Accordingly, a new paragraph would be added to the Rule 22 Comment that would make it clear that an ''ACT'' site located outside of the magisterial district or judicial district is contemplated by the language in paragraph (A), ''another location, within or without the magisterial district, designated by the President Judge.'' A cross-reference to Rule 3 for the definition of ''advanced communication technology'' also would be added, and some editorial changes and technical corrections would be made to the rule.

Appendix

   (The following proposed rule changes are part of the Committee's proposal concerning the use of ''ACT'' in preliminary arraignments and arraignments that is pending before the Court.)

CHAPTER 1.  SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES

Rule 3.  Definitions.

   The following words and phrases, when used in any Rule of Criminal Procedure, shall have the following meanings:

   Advanced Communication Technology is any communication equipment that is used as a link between parties in physically separate locations, and includes, but is not limited to: two-way communication systems of image and sound; closed-circuit television; telephone and facsimile equipment; and electronic mail.

   Affiant is any responsible person capable of taking an oath who signs, swears to, affirms, or, when permitted by these rules, verifies a complaint and appreciates the nature and quality of that person's act.

   Bail is the security or other guarantee required and given for the release of a person, conditioned upon a written undertaking, in the form of a bail bond, that the person will appear when required and comply with all conditions set forth in the bail bond.

   Bail Authority is the district justice, magistrate, Philadelphia bail commissioner, or the judge with jurisdiction over the case who is authorized by law to set, modify, revoke, or deny bail.

   Capital Case or Crime is one in or for which the death penalty may be imposed.

   Clerk of Courts is that official in each judicial district who has the responsibility and function under state or local law to maintain the official criminal court file and docket, without regard to that person's official title.

   Collateral is cash or a cash equivalent deposited in summary cases.

   Copy is an exact duplicate of an original document, including any required signatures, produced through mechanical or electronic means including, but not limited to: carbon copies; copies reproduced by using a photocopy machine, by transmission using facsimile equipment, or by scanning into and printing out of a computer.

   Court is a court of record.

   Court Case is a case in which one or more of the offenses charged is a misdemeanor, felony, or murder of the first, second, or third degree.

   Criminal Proceedings include all actions for the enforcement of the Penal Laws.

   Indictment is a bill of indictment which has been approved by a grand jury and properly returned to court, or which has been endorsed with a waiver as provided in former Rule 215.

   Information is a formal written accusation of an offense made by the attorney for the Commonwealth, upon which a defendant may be tried, which replaces the indictment in all counties since the use of the indicting grand jury has been abolished.

   Issuing Authority is any public official having the power and authority of a magistrate, a Philadelphia bail commissioner, or a district justice.

   Law Enforcement Officer is any person who is by law given the power to enforce the law when acting within the scope of that person's employment.

   Ordinance is a legislative enactment of a political subdivision.

   Penal Laws include all statutes and embodiments of the common law which establish, create, or define crimes or offenses, including any ordinances which may provide for imprisonment upon conviction or upon failure to pay a fine or penalty.

   Police Officer is any person who is by law given the power to arrest when acting within the scope of the person's employment.

   Political Subdivision shall mean county, city, township, borough or incorporated town or village having legislative authority.

   Sealed Verdict is a verdict unanimously agreed upon by the jury, completed, dated, and signed by the foreman of the jury, and closed to open view.

   Security shall include cash, certified check, money order, personal check, or guaranteed arrest bond or bail bond certificate.

   Summary Case is a case in which the only offense or offenses charged are summary offenses.

   Voir Dire is the examination and interrogation of prospective jurors.

   Official Note:  Previous rule adopted June 30, 1964, effective January 1, 1965, suspended effective May 1, 1970; present rule adopted January 31, 1970, effective May 1, 1970; amended June 8, 1973, effective July 1, 1973; amended February 15, 1974, effective immediately; amended June 30, 1977, effective September 1, 1977; amended January 4, 1979, effective January 9, 1979; amended July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; amended August 12, 1993, effective September 1, 1993; amended February 27, 1995, effective July 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             , 1999, effective              , 1999.

*      *      *      *      *

Committee Explanatory Reports:

   Report explaining the August 12, 1993 amendments published at 22 Pa.B. 3826 (July 25, 1992).

   Final Report explaining the February 27, 1995 amendments published with the Court's Order at 25 Pa.B. 935 (March 18, 1995).

   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             , 1999 amendments concerning the definitions of ''advanced communication technology'' and ''copy'' published at 29 Pa.B. 4539 (August 28, 1999).

CHAPTER 100.  PROCEDURE IN COURT CASES

PART IV.  PROCEEDINGS BEFORE ISSUING AUTHORITIES

Rule 140.  Preliminary Arraignment.

   (A)  In the discretion of the issuing authority, the preliminary arraignment of the defendant may be conducted by using advanced communication technology.

   [(a)] (B)  *    *    *

   [(b)] (C)  *    *    *

   [(c)] (D)  *    *    *

   [(d)] (E)  *    *    *

   [(e)] (F)  *    *    *

   [(f)] (G)  *    *    *

   [(g)] (H)  *    *    *

   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             , 1999, effective             , 1999.

   Comment

   Former Rule 140 was rescinded and replaced by new Rule 140 in 1994. Although the rule has been extensively reorganized, only paragraphs [(b)] (C) and [(c)]  (D) 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 (A) recognizes that an issuing authority may either conduct a preliminary arraignment using advanced communication technology equipment or order the defendant to appear in person for the preliminary arraignment.

   Pursuant to paragraph (A), instead of bringing the defendant before the issuing authority for the preliminary arraignment, advanced communication technology, such as two-way audio-video equipment or closed-circuit television, may be utilized. Any advanced communication technology used for the preliminary arraignment must allow the defendant and the issuing authority to see and communicate with each other. When the defendant is represented by counsel, the defendant must be permitted to communicate fully and confidentially with the defense attorney during the preliminary arraignment.

   Paragraph [(b)] (C) 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. See Rule 3 for the definition of ''copy.''

   Paragraph [(b)] (C) 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)] (A).

   Under paragraph [(c)] (D), 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.

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             , 1999 amendments concerning the use of advanced communication technology published with the Court's Order at 29 Pa.B. 4539 (August 28, 1999).

[Pa.B. Doc. No. 99-1427. Filed for public inspection August 27, 1999, 9:00 a.m.]

_______