Section 390. Notice of Request for Transfer to Criminal Proceedings

A. General rule. After a petition is filed but before the first scheduled adjudicatory hearing, any notice of a request for transfer to criminal proceedings pursuant to 42 Pa.C.S. § 6355 shall be filed and served on:

1) the juvenile;

2) the juvenile’s guardian;

3) the juvenile’s attorney;

4) the juvenile probation office; and

5) the attorney for the Commonwealth.

B. Exception. If, after the first scheduled adjudicatory hearing but prior to the commencement of the adjudicatory hearing, there is a change in circumstances, a request for transfer to criminal proceedings may be filed and served in accordance with paragraph (A).

Comment

The Juvenile Act gives the juvenile the opportunity to petition the court for transfer to criminal proceeding as reflected in this rule. See 42 Pa.C.S. § 6355(c). The court should use caution when a juvenile petitions the court for transfer to criminal proceedings. The court should inquire if the petition has been knowingly, intelligently, and voluntarily made.

The allegations requested to be transferred are to be classified as ‘‘delinquent acts’’, pursuant to 42 Pa.C.S. § 6302 (definition of ‘‘delinquent acts’’) and are to comply with the requirements as set forth in 42 Pa.C.S. § 6355 (Transfer to Criminal Proceedings). Any offense excluded from the definition of ‘‘delinquent acts,’’ paragraph (2) of the definition of ‘‘delinquent act’’ in 42 Pa.C.S. § 6302, should originate in criminal proceedings and may be transferred to delinquency proceedings, if so determined by the court. See 42 Pa.C.S. § 6322 (Transfer from Criminal Proceedings). For juveniles charged in criminal proceedings, the Rules of Criminal Procedure are applicable. See also Rule 100 on Scope of Rules. Also, any juvenile previously found guilty in criminal proceedings, for any charge other than a summary offense, should be charged in criminal proceedings for all subsequent offenses. See paragraph (2)(v) of the definition of ‘‘delinquent act’’ in 42 Pa.C.S. § 6302 and 42 Pa.C.S. § 6355(d).

The court should conduct a transfer hearing no sooner than three days after the notice of request for transfer to criminal proceedings is served unless the time requirement is waived. See Rule 394(A).

Under paragraph (A), it is anticipated that most notices of requests for transfer will be filed prior to the first scheduled adjudicatory hearing. However, under paragraph (B), it is noted that there may be changed circumstances, in which a notice for request of transfer may be filed at a later date but before the commencement of the adjudicatory hearing.

The attorney for the Commonwealth should notify the victim of any request for transfer. See Victim’s Bill of Rights, 18 P. S. § 11.213.

Official Note

Rule 390 adopted April 1, 2005, effective October 1, 2005.

Committee Explanatory Reports:

Final Report explaining the provisions of Rule 390 published with the Court’s Order at 35 Pa.B. 2214 (April 16, 2005).