Section 556.2. Proceeding by Indicting Grand Jury Without Preliminary Hearing

(A) After a person is arrested or otherwise proceeded against with a criminal complaint, the attorney for the Commonwealth may move to present the matter to an indicting grand jury instead of proceeding to a preliminary hearing.

(1) The motion shall allege facts asserting that witness intimidation has occurred, is occurring, or is likely to occur.

(2) The motion shall be presented ex parte to the president judge, or the president judge’s designee.

(3) Upon receipt of the motion, the president judge, or the president judge’s designee, shall review the motion. If the judge determines the allegations establish probable cause that witness intimidation has occurred, is occurring, or is likely to occur, the judge shall grant the motion, and shall notify the proper issuing authority.

(a) Upon receipt of the notice from the judge that the case will be presented to the indicting grand jury, the issuing authority shall cancel the preliminary hearing, close out the case before the issuing authority, and forward the case to the court of common pleas as provided in Rule 547 for all further proceedings.

(b) Once the case has been forwarded to the court of common pleas, the case shall not be remanded to the issuing authority.

(4) The order granting the motion or the order denying the motion, and the motion shall be sealed.

(5) The attorney for the Commonwealth shall file the sealed order and the sealed motion with the clerk of courts.

(B) If not already assigned, the president judge shall assign one of the judges in the judicial district to serve as the supervising judge for the indicting grand jury.

(C) If the motion is granted, the case shall be presented to the grand jury within 21 days of the date of the order, unless:

(1) the grand jury proceedings are waived by the defendant with the consent of the attorney for the Commonwealth; or

(2) the attorney for the Commonwealth elects not to present the case to a grand jury.

If the case is not presented to the grand jury as provided in this paragraph, the defendant is entitled to a preliminary hearing in the court of common pleas.

Comment

An accused in Pennsylvania ordinarily has the right to a preliminary hearing before he or she may be indicted by the grand jury. See Commonwealth v. Hoffman, 396 Pa. 491, 152 A.2d 726 (1959). However, the 2012 amendments to the rules permit the attorney for the Commonwealth to proceed to the indicting grand jury without first presenting the matter to an issuing authority for a preliminary hearing but only in cases in which witness intimidation has occurred, is occurring, or is likely to occur.

Concerning the requirements in paragraph (A)(1), see paragraph (A)(2)(g) of Rule 575 (Motions) that requires, inter alia, any motion that sets forth facts that do not already appear of record in the case to be verified by the sworn affidavit of some person having knowledge of the facts or by the unsworn written statement of such a person that the facts are verified subject to the penalties for unsworn falsification to authorities under the Crimes Code § 4904, 18 Pa.C.S. § 4904.

Pursuant to paragraph (A)(2), the president judge may designate another judge to receive motions from the attorney for the Commonwealth. It is anticipated that this designee will be the judge designated to be the supervising judge of the grand jury.

Pursuant to paragraph (A)(3)(a) and (A)(3)(b), after the issuing authority receives notice that the case will be presented to the grand jury, the case before the issuing authority is closed out and forwarded to the court of common pleas for all further proceedings. This provision is consistent with the general rule that once a case has been forwarded to the court of common pleas, the case is not permitted to be remanded to the issuing authority.

See Rule 556.11 for the procedures when a case is presented to the grand jury.

See Rule 556.12 for the procedures for the defendant to waive the grand jury proceedings.

If, after a motion to proceed to a grand jury is granted, the attorney for the Commonwealth elects not to present the case to the grand jury, the case will proceed as any other criminal case following the preliminary arraignment, except that the proceedings will be conducted in the court of common pleas. See Rules 541—547.

Official Note

New Rule 556.2 adopted June 21, 2012, effective in 180 days.

Committee Explanatory Reports:

Final Report explaining the new rule published with the Court’s Order at 42 Pa.B. 4153 (July 7, 2012).

The provisions of this Rule 556.2 adopted June 21, 2012, effective in 180 days, 42 Pa.B. 4140.