Section 541. Waiver of Preliminary Hearing

(A) The defendant who is represented by counsel may waive the preliminary hearing at the preliminary arraignment or at any time thereafter.

(1) The defendant thereafter is precluded from raising the sufficiency of the Commonwealth’s prima facie case unless the parties have agreed at the time of the waiver that the defendant later may challenge the sufficiency.

(2) If the defendant waives the preliminary hearing by way of an agreement, made in writing or on the record, and the agreement is not accomplished, the defendant may challenge the sufficiency of the Commonwealth’s prima facie case.

(B) The defendant who is not represented by counsel at the preliminary arraignment may not at that time waive the preliminary hearing.

(C) If the defendant waives the preliminary hearing and consents to be bound over to court, the defendant and defense attorney, if any, shall certify in writing that

(1) the issuing authority told the defendant of the right to have a preliminary hearing,

(2) when represented by counsel, the defendant understands that by waiving the right to have a preliminary hearing, he or she is thereafter precluded from raising challenges to the sufficiency of the prima facie case, and

(3) the defendant voluntarily waives the hearing and consents to be bound over to court.

(D) Once a preliminary hearing is waived and the case bound over to the court of common pleas, if the right to a preliminary hearing is subsequently reinstated, the preliminary hearing shall be held at the court of common pleas unless the parties agree, with the consent of the common pleas judge, that the preliminary hearing be held before the issuing authority.

(E) When the defendant waives the preliminary hearing, the case shall proceed as provided in Rule 543(C).

Comment

Paragraph (A)(1) is intended to address the recurring issue that arises when a defendant waives the preliminary hearing in exchnage for a quid pro quo benefit, such as a reduction in bail or withdrawal of charges, and thereafter, the defendant challenges the sufficiency of the Commonwealth’s prima facie case through pre-trial means such as habeas corpus hearings. Furthermore, paragraph (C) recognizes that by waiving the preliminary hearing, the defendant and defense counsel are acknowledging that sufficient evidence exists to make out a prima facie case, and by prohibiting a subsequent and unwarranted challenge, promotes judicial economy.

Nothing in this rule is intended to preclude a waiver of the preliminary hearing by way of agreement in which both parties agree to the preservation of the defendant’s ability to raise the sufficiency of the Commonwealth’s prima facie case at a subsequent proceeding. Any such agreement must be in writing or made on the record. However, this provision is not intended to require the creation of a record in those proceedings before an issuing authority, such as a magisterial district judge, whose court is not one of record. In those situations, there would be no record unless a stenographer is available and any agreement would have to be in writing.

While the rule continues to require a written certification incorporating the contents set forth in paragraph (C), the form of certification was deleted in 1985 because it is no longer necessary to control the specific form of written certification.

Under paragraph (B), it is intended that the defendant who elects to proceed pro se may waive the preliminary hearing at a time subsequent to the preliminary arraignment.

Paragraph (E) was added in 2012 to clarify that bail must be set at the time of the waiver of the preliminary hearing in those cases, such as those initiated by summons, in which no preliminary arraignment has been held.

Official Note

Rule 140A adopted April 26, 1979, effective July 1, 1979; amended November 9, 1984, effective January 2, 1985; renumbered Rule 541 and amended March 1, 2000, effective April 1, 2001; amended February 12, 2010, effective April 1, 2010; amended April 26, 2012, effective in 180 days.

Committee Explanatory Reports:

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1477 (March 18, 2000).

Final Report explaining the February 12, 2010 amendments adding new paragraph (D) concerning reinstatement of a waived preliminary hearing published with the Court’s Order at 40 Pa.B. 1068 (February 27, 2010).

Final Report explaining the April 26, 2012 amendments related to the effects of the waiver of the preliminary hearing and new paragraph (E) related to setting bail published at 42 Pa.B. 2466 (May 12, 2012).

The provisions of this Rule 541 amended February 12, 2010, effective April 1, 2010, 40 Pa.B. 1068; amended April 26, 2012, effective in 180 days, 42 Pa.B. 2645. Immediately preceding text appears at serial pages (355845) to (355846).