Title 234 Pa. Code — Rules of Criminal Procedure

Chapter 1 SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES

234 Pa. Code Rule 100 Scope of Rules. {#sec-rule-100 omnilex-key=us-pa-regs-official--title-234--Rule 100}

(A) These rules shall govern criminal proceedings in all courts including courts not of record. Unless otherwise specifically provided, these rules shall not apply to juvenile or domestic relations proceedings.

(B) Each of the courts exercising criminal jurisdiction may adopt local rules of procedure in accordance with Rule 105.

Under the 1974 amendment, the Pennsylvania Rules of Criminal Procedure, formerly inapplicable to summary cases in Philadelphia, now apply to such cases as specified in Chapter 10.

These rules apply to proceedings involving juveniles only to the extent that the Juvenile Act does not vest jurisdiction in the Juvenile Court, and as provided in the Rules of Juvenile Court Procedure. See, e.g., Juvenile Act, 42 Pa.C.S. § § 6302—6303, 6355; Vehicle Code, 75 Pa.C.S. § 6303, and Rules of Juvenile Court Procedure 105 (Search Warrants), 395 (Procedure to Initiate Criminal Information), and 396 (Bail). These rules also apply to cases in which an individual under the age of 18 allegedly commits a crime but the charges are not filed until the individual is 21 and therefore outside the Juvenile Act’s definition of child. See 42 Pa.C.S. § 6302. See also Commonwealth v. Monaco, 869 A.2d 1026 (Pa. Super. 2005).

Official Note

Prior rule suspended effective May 1, 1970. Present Rule 1 adopted January 31, 1970, effective May 1, 1970; amended April 26, 1972, effective immediately; amended June 28, 1974, effective July 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 100 and amended March 1, 2000, effective April 1, 2001; Comment revised April 1, 2005, effective October 1, 2005; Comment revised January 18, 2013, effective May 1, 2013.

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. 1478 (March 18, 2000).

Final Report explaining the April 1, 2005 Comment revision concerning Rules of Juvenile Court Procedure published with the Court’s Order at 35 Pa.B. 2213 (April 16, 2005).

Final Report explaining the January 18, 2013 Comment revision concerning application of Criminal Rules to cases involving individuals under the age of 18 at time of offense and over 21 at time charges filed published with the Court’s Order at 43 Pa.B. 653 (February 2, 2013).

The provisions of this Rule 100 amended April 1, 2005, effective October 1, 2005, 35 Pa.B. 2210; amended January 18, 2013, effective May 1, 2013, 43 Pa.B. 652. Immediately preceding text appears at serial pages (360823) to (360824).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 101 Purpose, Application, and Construction of Rules. {#sec-rule-101 omnilex-key=us-pa-regs-official--title-234--Rule 101}

(a) Purpose. These rules are intended to provide for the just determination of every criminal proceeding.

(b) Application. These rules shall be applied to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.

(c) Construction. In the construction of the Pennsylvania Rules of Criminal Procedure, the principles set forth in Pa.R.J.A. 104 to 115 shall be observed.

These rules were adopted under the Act of July 11, 1957, P.L. 819, 17 P.S. § 2084 (Supp.), which was repealed by JARA, 42 P.S. § 20002(a), and replaced by 42 Pa.C.S. § 1722(a)(1).

The provisions of this Rule 101 amended November 3, 2023, effective January 1, 2024, 53 Pa.B. 7160. Immediately preceding text appears at serial page (390218).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 102 Citing the Criminal Procedural Rules. {#sec-rule-102 omnilex-key=us-pa-regs-official--title-234--Rule 102}

All criminal procedural rules adopted by the Supreme Court under the authority of Article V 10(c) of the Constitution of Pennsylvania, adopted April 23, 1968, shall be known as the Pennsylvania Rules of Criminal Procedure and shall be cited as ‘‘Pa.R.Crim.P. .’’

Official Note

Rule 4 adopted March 20, 1972, effective immediately; amended September 18, 1973, effective January 1, 1974; renumbered Rule 102 March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 102.1 Citation of Authorities. {#sec-rule-102.1 omnilex-key=us-pa-regs-official--title-234--Rule 102.1}

Citation of authorities in matters subject to these rules shall be in accordance with Pa.R.A.P. 126.

See also 210 Pa. Code § 65.37 and Wenk v. State Farm Fire and Casualty Co., 228 A.3d 540, 552 n.11 (Pa. Super. 2020) for citing to non-precedential decisions of the Superior Court; and Pa.R.A.P. 3716 and 210 Pa. Code § 69.414 for citing to non-precedential decisions of the Commonwealth Court.

The provisions of this Rule 102.1 added February 13, 2023, effective April 1, 2023, 53 Pa.B. 1053.

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 103 Definitions. {#sec-rule-103 omnilex-key=us-pa-regs-official--title-234--Rule 103}

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: systems providing for two-way simultaneous communication of image and sound; closed-circuit television; telephone and facsimile equipment; and electronic mail.

ADVANCED COMMUNICATION TECHNOLOGY SITE is any approved location within Pennsylvania designated by the president judge, or the president judge’s designee, with advanced communication technology equipment that is available for parties in a criminal matter to communicate with others in physically separate locations as provided in these rules.

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.

ARRAIGNMENT is the pretrial proceeding in the court of common pleas conducted pursuant to Rule 571.

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 magisterial district judge, magistrate, Philadelphia arraignment court magistrate, 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.

CARRIER SERVICE includes, but is not limited to, delivery by companies such as Federal Express or United Parcel Service, or a local courier service, and courthouse interoffice mail. The courthouse interoffice mail is a method of delivery used in some judicial districts for transmittal of documents between offices in the courthouse, and between the courthouse and other county facilities, including the county jail facility.

CLERK OF COURTS is that official, without regard to that person’s title, in each judicial district who, pursuant to 42 Pa.C.S. § § 2756 and 2757, has the responsibility and function to maintain the official criminal case file and list of docket entries, and to perform such other duties as required by rule or law.

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, and includes, but is 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 ADMINISTRATOR is that official in each judicial district who has the responsibility for case management and such other responsibilities as provided by the court.

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 the instrument holding the defendant for court after a grand jury votes to indict and authorizing the attorney for the Commonwealth to prepare an information.

INFORMATION is a formal written statement charging the commission of an offense signed and presented to the court by the attorney for the Commonwealth after a defendant is held for court, is indicted by the grand jury, or waives the preliminary hearing or a grand jury proceeding.

ISSUING AUTHORITY is any public official having the power and authority of a magistrate, a Philadelphia arraignment court magistrate, or a magisterial district judge.

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.

MOTION includes any challenge, petition, application, or other form of request for an order or relief.

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.

PRELIMINARY ARRAIGNMENT is the proceeding following an arrest conducted before an issuing authority pursuant to Rule 540 or Rule 1003(D).

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.

SIGNATURE, when used in reference to documents generated by the minor judiciary or court of common pleas, includes a handwritten signature, a copy of a handwritten signature, a computer generated signature, or a signature created, transmitted, received, or stored by electronic means, by the signer or by someone with the signer’s authorization, unless otherwise provided in these rules.

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.

The definitions of arraignment and preliminary arraignment were added in 2004 to clarify the distinction between the two proceedings. Although both are administrative proceedings at which the defendant is advised of the charges and the right to counsel, the preliminary arraignment occurs shortly after an arrest before a member of the minor judiciary, while an arraignment occurs in the court of common pleas after a case is held for court and an information is filed.

The definition of indictment was amended in 2012 consistent with the adoption of the new indicting grand jury rules in Chapter 5 Part E. Under the new rules, the indictment is the functional equivalent of an issuing authority’s order holding the defendant for court and that forms the basis for the information that is prepared by the attorney for the Commonwealth. Formerly, an indictment was defined as a bill of indictment that 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.

The definition of information was added to the rules as part of the implementation of the 1973 amendment to PA. CONST. art. I, § 10, permitting the substitution of informations for indictments. The term ‘‘information’’ as used here should not be confused with prior use of the term in Pennsylvania practice as an instrument which served the function now fulfilled by the complaint.

The definitions of bail authority and issuing authority were amended in 2005 to reflect the provisions of Act 207 of 2004 that changed the phrase ‘‘district justice’’ to ‘‘magisterial district judge,’’ effective January 29, 2005. See also the Court’s January 6, 2005 Order providing that any reference to ‘‘district justice’’ in a court rule shall be deemed a reference to a ‘‘magisterial district judge.’’

The definitions of ‘‘bail authority’’ and ‘‘issuing authority’’ were amended in 2009 to reflect the provisions of Act 98 of 2008 that changed the phrase ‘‘bail commissioner’’ to ‘‘arraignment court magistrate,’’ effective December 8, 2008. See also the Court’s January 21, 2009 Order providing that any reference to ‘‘bail commissioner’’ in a court rule shall be deemed a reference to an ‘‘arraignment court magistrate.’’

Neither the definition of law enforcement officer nor the definition of police officer gives the power of arrest to any person who is not otherwise given that power by law.

See Rule 1036 for the definition of hearing officers of the Philadelphia Municipal Court Traffic Division as ‘‘issuing authorities’’ for limited purposes specified in the rule.

The definition of signature was added in 2004 to make it clear when a rule requires a document generated by the minor judiciary or court of common pleas to include a signature or to be signed, that the signature may be in any of the forms provided in the definition. In addition, documents that institute proceedings or require the inclusion of an oath ordinarily are not documents generated by the minor courts or courts of common pleas and therefore any signature required on the document would not be included in this definition of signature; however, in the event such a document is generated by the minor courts or the courts of common pleas, the form of ‘‘signature’’ on this document is limited to handwritten, and the other forms of signature provided in the definition are not permitted.

Included in Chapter 5 Part C of the rules are additional definitions of words and phrases that apply specifically to bail in criminal cases. See, e.g., Rule 524, which defines the types of release on bail.

Official Note

Previous Rules 3 and 212 adopted June 30, 1964, effective January 1, 1965, suspended January 31, 1970, effective May 1, 1970; present Rule 3 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; renumbered Rule 103 and Comment revised March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended March 3, 2004, effective July 1, 2004; amended April 30, 2004, effective July 1, 2004; amended August 24, 2004, effective August 1, 2005; amended February 4, 2005, effective immediately; amended May 6, 2009, effective immediately; amended June 21, 2012, effective in 180 days; Comment revised May 7, 2014, effective immediately.

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 Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the May 10, 2002 amendments concerning advanced communication technology published with the Court’s Order at 32 Pa.B. 2591 (May 25, 2002).

Final Report explaining the March 3, 2004 amendments defining carrier service, clerk of courts, court administrator, and motion published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

Final Report explaining the April 30, 2004 amendments defining ‘‘signature’’ published with the Court’s Order at 34 Pa.B. 2542 (May 15, 2004).

Final Report explaining the August 24, 2004 amendments adding definitions of arraignment and preliminary arraignment published with the Court’s Order at 34 Pa.B. 5025 (September 11, 2004).

Final Report explaining the February 4, 2005 amendments modifying the definitions of bail authority and issuing authority published with the Court’s Order at 35 Pa.B. 1333 (February 19, 2005).

Final Report explaining the May 6, 2009 amendments modifying the definitions of bail authority and issuing authority published with the Court’s Order at 39 Pa.B. 2567 (May 23, 2009).

Final Report explaining the June 21, 2012 amendments modifying the definitions of ‘‘indictment’’ and ‘‘information’’ published with the Court’s Order at 42 Pa.B. 4153 (July 7, 2012).

Final Report explaining the May 7, 2014 revision of the Comment cross-referencing the Rule 1036 limited definition of Philadelphia Municipal Court Traffic Division hearing officers as ‘‘issuing authorities’’ published with the Court’s Order at 44 Pa.B. 3056 (May 24, 2014).

The provisions of this Rule 103 amended May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended April 30, 2004, effective July 1, 2004, 34 Pa.B. 2541; amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended February 4, 2005, effective immediately, 35 Pa.B. 1331; amended May 22, 2009, effective immediately, 39 Pa.B. 2567; amended June 21, 2012, effective in 180 days, 42 Pa.B. 4140; amended May 7, 2014, effective immediately, 44 Pa.B. 3056. Immediately preceding text appears at serial pages (361811) to (361814).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 104 Design of Forms. {#sec-rule-104 omnilex-key=us-pa-regs-official--title-234--Rule 104}

The Court Administrator of Pennsylvania, in consultation with the Criminal Procedural Rules Committee, shall design and publish forms necessary to implement these Rules.

Official Note

Formerly Rule 144, adopted January 31, 1970, effective May 1, 1970; amended and renumbered Rule 5 September 18, 1973, effective January 1, 1974; amended July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; renumbered Rule 104 March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 105 Local Rules. {#sec-rule-105 omnilex-key=us-pa-regs-official--title-234--Rule 105}

Procedures for the promulgation and amendment of local criminal procedural rules are set forth in Pennsylvania Rule of Judicial Administration 103(d).

In 2016, the Supreme Court of Pennsylvania unified and consolidated the requirements and procedures for the promulgation and amendment of all local procedural rules, including local criminal procedural rules, into Pennsylvania Rule of Judicial Administration 103(d). All local rules previously promulgated in accordance with the requirements of Pa.R.Crim.P. 105 prior to this amendment remain effective upon compilation and publication pursuant to Pa.R.J.A. No. 103(d)(7).

Official Note

Rule 6 adopted January 28, 1983, effective July 1, 1983; amended May 19, 1987, effective July 1, 1987; renumbered Rule 105 and amended March 1, 2000, effective April 1, 2001; amended October 24, 2000, effective January 1, 2001; Comment revised June 8, 2001, effective immediately; amended October 15, 2004, effective January 1, 2005; amended September 9, 2005, effective February 1, 2006; amended January 25, 2008, effective February 1, 2009; amended January 30, 2009, effective February 1, 2009; amended May 7, 2014, effective immediately; rescinded June 28, 2016, effective August 1, 2016. New Rule 105 adopted June 28, 2016, effective August 1, 2016.

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. 1478 (March 18, 2000).

Final Report explaining the October 24, 2000 amendments published with the Court’s Order at 30 Pa.B. 5742 (November 11, 2000).

Final Report explaining the June 8, 2001 Comment revision citing to the AOPC’s webpage published with the Court’s Order at 31 Pa.B. 3310 (June 23, 2001).

Final Report explaining the October 15, 2004 amendment to paragraph (A), and to paragraph (C)(3) concerning the Legislative Reference Bureau publication requirements, published with the Court’s Order at 34 Pa.B. 5893 (October 30, 2004).

Final Report explaining the September 9, 2005 amendments to paragraph (A) published with the Court’s Order at 35 Pa.B. 5242 (September 24, 2005).

Final Report explaining the January 25, 2008 changes to Rule 105 concerning submission of local rules for review prior to adoption published with the Court’s Order at 38 Pa.B. 746 (February 9, 2008).

Final Report explaining the January 30, 2009 changes to Rule 105 concerning publication of local rules on the UJS Portal published with the Court’s Order at 39 Pa.B. 829 (February 14, 2009).

Final Report explaining the May 7, 2014 amendments concerning the transfer of the Philadelphia Traffic Court functions to the Philadelphia Municipal Court published with the Court’s Order at 44 Pa.B. 3056 (May 24, 2014).

Final Report explaining the June 28, 2016 rescission of Rule 105, adoption of new Rule 105, and the consolidation of the local rulemaking approval and adoption procedures in Pa.R.J.A.103(d) published with the Court’s Order at 46 Pa.B. 3807 (July 16, 2016).

The provisions of this Rule 105 amended October 24, 2000, effective January 1, 2001, 30 Pa.B. 5841; amended June 8, 2001, effective immediately, 31 Pa.B. 3310; amended October 18, 2004, effective January 1, 2005, 34 Pa.B. 5892; amended September 9, 2005, effective February 1, 2006, 35 Pa.B. 5239; amended February 8, 2008, effective February 1, 2009, 38 Pa.B. 745; amended January 30, 2009, effective as to all local criminal rules adopted or amended on or after February 1, 2009; amended May 7, 2014, effective immediately, 44 Pa.B. 3056; rescinded and replaced June 28, 2016, effective August 1, 2016, 46 Pa.B. 3806. Immediately preceding text appears at serial pages (372099) to (372102).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 106 Continuances in Summary and Court Cases. {#sec-rule-106 omnilex-key=us-pa-regs-official--title-234--Rule 106}

(A) The court or issuing authority may, in the interests of justice, grant a continuance, on its own motion, or on the motion of either party.

(B) When the matter is before an issuing authority, the issuing authority shall record on the transcript the identity of the moving party and the reasons for granting or denying the continuance.

(C) When the matter is in the court of common pleas, the judge shall on the record identify the moving party and state of record the reasons for granting or denying the continuance. The judge also shall indicate on the record to which party the period of delay caused by the continuance shall be attributed and whether the time will be included in or excluded from the computation of the time within which trial must commence in accordance with Rule 600.

(D) A motion for continuance on behalf of the defendant shall be made not later than 48 hours before the time set for the proceeding. A later motion shall be entertained only when the opportunity therefor did not previously exist, or the defendant was not aware of the grounds for the motion, or the interests of justice require it.

(E) When a continuance is granted, the notice of the new date, time, and location of the proceeding shall be served on the parties as provided in these rules.

For the procedures for filing and service of court orders and notices in general, see Rule 114. For the procedures for service of the continuance of a preliminary hearing, see Rule 542(G)(2).

Official Note

Rule 301 adopted June 30, 1964, effective January 1, 1965; amended June 8, 1973, effective July 1, 1973; amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; renumbered Rule 106 and amended March 1, 2000, effective April 1, 2001; amended October 1, 2012, effective July 1, 2013.

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. 1478 (March 18, 2000).

Final Report explaining the July 1, 2012 amendments to paragraphs (B) and (C) concerning Rule 600 and paragraph (E) concerning service published with the Court’s Order at 42 Pa.B. 6629 (October 20, 2012).

The provisions of this Rule 106 amended October 1, 2012, effective July 1, 2013, 42 Pa.B. 6622. Immediately preceding text appears at serial pages (343841) and (335923).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 107 Contents of Subpoena. {#sec-rule-107 omnilex-key=us-pa-regs-official--title-234--Rule 107}

A subpoena in a criminal case shall order the witness named to appear before the court at the date, time, and place specified, and to bring any items identified or described. The subpoena shall also state on whose behalf the witness is being ordered to testify and the identity, address, and phone number of the attorney, if any, who applied for the subpoena.

The form of subpoena was deleted in 1985 because it is no longer necessary to control the specific form of subpoena by rule.

It is intended that the subpoena shall be used not only for trial but also for any other stage of the proceedings when a subpoena is issuable, including preliminary hearings, hearings in connection with pretrial and post-trial motions, etc.

When the subpoena is for the production of documents, records, or things, these should be specified.

Official Note

Previous Rule 9016 adopted January 28, 1983, effective July 1, 1983; rescinded November 9, 1984, effective January 2, 1985. Present Rule 9016 adopted November 9, 1984, effective January 2, 1985; renumbered Rule 107 and amended March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 108 Habeas Corpus Venue. {#sec-rule-108 omnilex-key=us-pa-regs-official--title-234--Rule 108}

(A) A petition for writ of habeas corpus challenging the legality of the petitioner’s detention or confinement in a criminal matter shall be filed with the clerk of courts of the judicial district in which the order directing the petitioner’s detention or confinement was entered.

(B) A petition for writ of habeas corpus challenging the conditions of the petitioner’s confinement in a criminal matter shall be filed with the clerk of courts of the judicial district in which the petitioner is confined.

This rule implements Section 6502(b) of the Judicial Code as it applies to the venue for petitions for writs of habeas corpus in criminal matters, 42 Pa.C.S. § 6502(b). The rule is not intended to affect existing law concerning the availability and scope of habeas corpus relief. The rule also is not intended to apply to proceedings authorized by law for post-conviction remedies. See Section 6503 of the Judicial Code, 42 Pa.C.S. § 6503.

Separate petitions are required under this rule when the petitioner is confined in one judicial district due to an order entered in another judicial district and seeks to challenge both the legality and the conditions of confinement. A petition misfiled in the wrong judicial district under this rule may be transferred to the proper judicial district pursuant to Section 5103 of the Judicial Code, 42 Pa.C.S. § 5103(a).

Official Note

Rule 1701 adopted December 11, 1980, effective April 1, 1981; renumbered Rule 108 and amended March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 109 Defects in Form, Content, or Procedure. {#sec-rule-109 omnilex-key=us-pa-regs-official--title-234--Rule 109}

A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant, or a defect in the procedures of these rules, unless the defendant raises the defect before the conclusion of the trial in a summary case or before the conclusion of the preliminary hearing in a court case, and the defect is prejudicial to the rights of the defendant.

This rule combines and replaces former Rules 90 and 150.

This rule clarifies when a defendant should be discharged or a case dismissed because of a defect; it eliminates disputes as to what is an informal defect or a substantive defect. As a condition of relief regardless of whether the defect is in form, content, or procedure, the court or issuing authority must determine that there is actual prejudice to the rights of the defendant.

A complaint, citation, summons, or warrant may be amended at any time so as to remedy any defect in form or content that is not prejudicial to the rights of the defendant. Nothing in this rule shall prevent the filing of a new complaint or citation and the reissuance of process. Any new complaint or citation must be filed within the time permitted by the applicable statute of limitations.

Ordinarily, if a defendant does not raise a defect at the summary trial or before the conclusion of the preliminary hearing, the defendant cannot thereafter raise the defect as grounds for dismissal or discharge at a later stage in the proceedings. See Commonwealth v. Krall, 452 Pa. 215, 304 A.2d 488 (1973). In a summary case, however, the provisions of this rule do not preclude a defendant from raising a defect for the first time after the summary trial when the interests of justice require it, as for example, when the defendant was not represented by counsel during the proceedings before the district justice or when the defendant could not reasonably have discovered the defect until after the conclusion of the summary trial.

Any defect properly raised under this rule shall be specifically described on the docket by the issuing authority. See Pa.R.Crim.P. 135.

If the issuing authority determines that a defect is prejudicial, it is intended that the decision recorded on the docket pursuant to Rule 135(B)(13) shall be ‘‘discharge of the defendant’’ or ‘‘dismissal of the case,’’ rather than ‘‘not guilty.’’

Official Note

Former Rule 90 adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 109. Former Rule 150, formed from former Rule 114 (Informal Defects), and former Rule 115 (Substantive Defects), both adopted June 30, 1964, effective January 1, 1965; suspended effective May 1, 1970; both revised January 31, 1970, effective May 1, 1970; combined, renumbered Rule 150 and amended September 18, 1973, effective January 1, 1974; amended April 8, 1982, effective July 1, 1982, Comment revised July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 109. New Rule 109 adopted March 1, 2000, effective April 1, 2001; Comment revised July 10, 2008, effective February 1, 2009.

Committee Explanatory Reports:

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules, and the provisions of Rule 109, published with the Court’s Order at 30 Pa.B. 1477 (March 18, 2000).

Final Report explaining the July 10, 2008 revisions to the Comment related to the cross-reference to Rule 135, published with the Court’s Order at 38 Pa.B. 3975 (July 26, 2008).

The provisions of this Rule 109 amended July 10, 2008, effective February 1, 2009, 38 Pa.B. 3971. Immediately preceding text appears at serial pages (264118) and (289061).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 110 Special Orders Governing Widely-Publicized or Sensational Cases. {#sec-rule-110 omnilex-key=us-pa-regs-official--title-234--Rule 110}

In a widely-publicized or sensational case, the court, on motion of either party or on its own motion, may issue a special order governing such matters as extrajudicial statements by parties and witnesses likely to interfere with the rights of the accused to a fair trial by an impartial jury, the seating and conduct in the courtroom of spectators and news media representatives, the management and sequestration of jurors and witnesses, and any other matters that the court may deem appropriate for inclusion in such an order. In such cases, it may be appropriate for the court to consult with representatives of the news media concerning the issuance of such a special order.

Official Note

Rule 326 adopted January 25, 1971, effective February 1, 1971; amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; renumbered Rule 110 and amended March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 111 Public Discussion of Pending or Imminent Criminal Litigation by Court Personnel. {#sec-rule-111 omnilex-key=us-pa-regs-official--title-234--Rule 111}

All court personnel including, among others, court clerks, bailiffs, tipstaffs, and court stenographers are prohibited from disclosing to any person, without authorization by the court, information relating to a pending criminal case that is not part of the public records of the court. This rule specifically prohibits the divulgence of information concerning arguments and hearings held in chambers or otherwise outside the presence of the public.

Official Note

Rule 327 adopted January 25, 1971, effective February 1, 1971; amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; renumbered Rule 111 and amended March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 112 Publicity, Broadcasting, and Recording of Proceedings. {#sec-rule-112 omnilex-key=us-pa-regs-official--title-234--Rule 112}

(A) The court or issuing authority shall:

(1) prohibit the taking of photographs, video, or motion pictures of any judicial proceedings or in the hearing room or courtroom or its environs during the judicial proceedings; and

(2) prohibit the transmission of communications by telephone, radio, television, or advanced communication technology from the hearing room or the courtroom or its environs during the progress of or in connection with any judicial proceedings, whether or not the court is actually in session.

The environs of the hearing room or courtroom is defined as the area immediately surrounding the entrances and exits to the hearing room or courtroom.

(B) The court or issuing authority may permit the taking of photographs, or radio or television broadcasting, or broadcasting by advanced communication technology, of judicial proceedings, such as naturalization ceremonies or the swearing in of public officials, which may be conducted in the hearing room or courtroom.

(C) Except as provided in paragraph (D), the stenographic, mechanical, or electronic recording, or the recording using any advanced communication technology, of any judicial proceedings by anyone other than the official court stenographer in a court case, for any purpose, is prohibited.

(D) In a judicial proceeding before an issuing authority, the issuing authority, the attorney for the Commonwealth, the affiant, or the defendant may cause a recording to be made of the judicial proceeding as an aid to the preparation of the written record for subsequent use in a case, but such recordings shall not be publicly played or disseminated in any manner unless in a court during a trial or hearing.

(E) If it appears to the court or issuing authority that a violation of this rule has resulted in substantial prejudice to the defendant, the court or issuing authority, upon application by the attorney for the Commonwealth or the defendant, may:

(1) quash the proceedings at the preliminary hearing and order another preliminary hearing to be held before the same issuing authority at a subsequent time without additional costs being taxed;

(2) discharge the defendant on nominal bail if in custody, or continue the bail if at liberty, pending further proceedings;

(3) order all costs of the issuing authority forfeited in the original proceedings; or

(4) adopt any, all, or combination of these remedies as the nature of the case requires in the interests of justice.

This rule combines and replaces former Rules 27 and 328.

‘‘Recording’’ as used in this rule is not intended to preclude the use of recording devices for the preservation of testimony as permitted by Rules 500 and 501.

The prohibitions under this rule are not intended to preclude the use of advanced communication technology for purposes of conducting court proceedings.

Official Note

Former Rule 27, previously Rule 143, adopted January 31, 1970, effective May 1, 1970; renumbered Rule 27 September 18, 1973, effective January 1, 1974; amended February 15, 1974, effective immediately; Comment revised March 22, 1989, effective July 1, 1989; amended June 19, 1996, effective July 1, 1996; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 112. Former Rule 328 adopted January 25, 1971, effective February 1, 1971; amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; Comment revised March 22, 1989, effective July 1, 1989; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 112. New Rule 112 adopted March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002.

Committee Explanatory Reports:

FORMER RULE 27:

Final Report explaining the June 19, 1996 amendments to former Rule 27 published with the Court’s Order at 26 Pa.B. 3128 (July 6, 1996).

NEW RULE 112:

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules, and the provisions of Rule 112, published at 30 Pa.B. 1477 (March 18, 2000).

Final Report explaining the May 10, 2002 amendments published with the Court’s Order at 32 Pa.B. 2591 (May 25, 2002).

The provisions of this Rule 112 amended May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582. Immediately preceding text appears at serial pages (264120) to (264121).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 113 Criminal Case File and Docket Entries. {#sec-rule-113 omnilex-key=us-pa-regs-official--title-234--Rule 113}

(A) The clerk of courts shall maintain the criminal case file for the court of common pleas. The criminal case file shall contain all original records, papers, and orders filed in the case, and copies of all court notices. These records, papers, orders, and copies shall not be taken from the custody of the clerk of court without order of the court. Upon request, the clerk shall provide copies at reasonable cost.

(B) The clerk of courts shall maintain a list of docket entries: a chronological list, in electronic or written form, of documents and entries in the criminal case file and of all proceedings in the case.

(C) The docket entries shall include at a minimum the following information:

(1) the defendant’s name;

(2) the names and addresses of all attorneys who have appeared or entered an appearance, the date of the entry of appearance, and the date of any withdrawal of appearance;

(3) notations concerning all papers filed with the clerk, including all court notices, appearances, pleas, motions, orders, verdicts, findings and judgments, and sentencings, briefly showing the nature and title, if any, of each paper filed, writ issued, plea entered, and motion made, and the substance of each order or judgment of the court and of the returns showing execution of process;

(4) notations concerning motions made orally or orders issued orally in the courtroom when directed by the court;

(5) a notation of every judicial proceeding, continuance, and disposition;

(6) a notation if the defendant was under the age of 18 at the time of the commission of the alleged offense and charged with one of the offenses excluded from the definition of ‘‘delinquent act’’ in paragraphs (2)(i), (2)(ii), and (2)(iii) of 42 Pa.C.S. § 6302;

(7) the location of exhibits made part of the record during the proceedings; and

(8) all other information required by Rules 114 and 576.

(D) If a judicial district has provided for electronic filing pursuant to Rule 576.1, the criminal case file in which electronic filing has been utilized may be maintained solely in an electronic format as long as copies of the documents maintained in the criminal case file may be produced in a physical paper format.

This rule sets forth the mandatory contents of the list of docket entries and the criminal case files. This is not intended to be an exhaustive list of what is required to be recorded in the docket entries. The judicial districts may require additional information be recorded in a case or in all cases.

The list of docket entries is a running record of all information related to any action in a criminal case in the court of common pleas of the clerk’s county, such as dates of filings, of orders, and of court proceedings. The clerk of courts is required to make docket entries at the time the information is made known to the clerk, and the practice in some counties of creating the list of docket entries only if an appeal is taken is inconsistent with this rule.

Nothing in this rule is intended to preclude the use of automated or other electronic means for time stamping or making docket entries.

This rule applies to all proceedings in the court of common pleas at any stage of a criminal case.

The requirement in paragraph (C)(2) that all attorneys and their addresses be recorded makes certain there is a record of all attorneys who have appeared for any litigant in the case. The requirement also ensures that attorneys are served as required in Rules 114 and 576. See also Rule 576(b)(4) concerning certificates of service.

In those cases in which the attorney has authorized receiving service by facsimile transmission or electronic means, the docket entry required in paragraph (C)(2) must include the facsimile number or electronic address.

Paragraph (C)(4) recognizes that occasionally disposition of oral motions presented in open court should be reflected in the docket, such as motions and orders related to omnibus pretrial motions (Rule 578), motions for a mistrial (Rule 605), motions for changes in bail (Rule 529), and oral motions for extraordinary relief (Rule 704(B)).

Unexecuted search warrants are not public records, see Rule 212(B), and therefore are not to be included in the criminal case file nor are they to be docketed.

Official Note

Former Rule 9024 adopted October 21, 1983, effective January 1, 1984; amended March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; renumbered Rule 9025 June 2, 1994, effective September 1, 1994. New Rule 9024 adopted June 2, 1994, effective September 1, 1994; renumbered Rule 113 and amended March 1, 2000, effective April 1, 2001; rescinded March 3, 2004 and replaced by Rule 114(C), effective July 1, 2004. New Rule 113 adopted March 3, 2004, effective July 1, 2004; amended July 31, 2012, effective November 1, 2012; Comment revised October 22, 2013; effective January 1, 2014; amended January 25, 2018, effective May 1, 2018.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

Final Report explaining the July 31, 2012 amendment adding new paragraph (6) concerning defendants under the age of 18 published with the Court’s Order at 42 Pa.B. 5340 (August 18, 2012).

Final Report explaining the October 22, 2013 revisions to the Comment regarding the unexecuted search warrants published with the Court’s Order at 43 Pa.B. 6652 (November 9, 2013).

Final Report explaining January 25, 2018 amendment providing for maintenance of electronically filed documents published with the Court’s Order at 48 Pa.B. 861 (February 10, 2018).

The provisions of this Rule 113 adopted March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333; amended October 22, 2013, effective January 1, 2014, 43 Pa.B. 6649; amended January 25, 2018, effective May 1, 2018, 48 Pa.B. 856 and 48 Pa.B. 2759; amended January 4, 2022, effective July 1, 2022, 52 Pa.B. 346. Immediately preceding text appears at serial pages (390576) and (407895) to (407896).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 113.1 Confidential Information and Confidential Documents. Certification. {#sec-rule-113.1 omnilex-key=us-pa-regs-official--title-234--Rule 113.1}

Unless public access is otherwise constrained by applicable authority, any attorney, or any party if unrepresented, or any affiant who files a document pursuant to these rules with the issuing authority or clerk of courts’ office shall comply with the requirements of Sections 7.0 and 8.0 of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania (Policy). In accordance with the Policy, the filing shall include a certification of compliance with the Policy and, as necessary, a Confidential Information Form or a Confidential Document Form.

‘‘Applicable authority,’’ as used in this rule, includes but is not limited to statute, procedural rule, or court order. The Case Records Public Access Policy of the Unified Judicial System of Pennsylvania (Policy) can be found on the website of the Supreme Court of Pennsylvania at: https://www.pacourts.us/public-records. The Policy is applicable to all filings by the parties or an affiant in any criminal court case.

Sections 7.0(D) and 8.0(D) of the Policy provide that the certification shall be in substantially the following form:

I certify that this filing complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania that require filing confidential information and documents differently than non-confidential information and documents.

Filings may require further precautions, such as placing certain types of information in a ‘‘Confidential Information Form.’’ The Confidential Information Form and the Confidential Document Form can be found at: https://www.pacourts.us/public-records/public-records-forms.

In addition to the restrictions above, a filing party should be cognizant of the potential impact that inclusion of personal information may have on an individual’s privacy rights and security. Therefore, inclusion of such information should be done only when necessary or required to effectuate the purpose of the filing. Consideration of the use of sealing or protective orders also should be given if inclusion of such information is necessary.

While the Public Access Policy is not applicable to orders or other documents filed by a court, judges should give consideration to the privacy interests addressed by the Policy when drafting an order that might include information considered confidential under the Policy.

The provisions of this Rule 113.1 adopted January 5, 2018, effective January 6, 2018, 48 Pa.B. 487; amended June 1, 2018, effective July 1, 2018, 48 Pa.B. 3575; amended December 1, 2021, effective January 1, 2022, 51 Pa.B. 7622. Immediately preceding text appears at serial pages (392738) to (392739).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 114 Orders and Court Notices: Filing; Service; and Docket Entries. {#sec-rule-114 omnilex-key=us-pa-regs-official--title-234--Rule 114}

(A) Filing

(1) All orders and court notices promptly shall be transmitted to the clerk of courts’ office for filing. Upon receipt in the clerk of courts’ office, the order or court notice promptly shall be time stamped with the date of receipt.

(2) All orders and court notices promptly shall be placed in the criminal case file.

(B) Service

(1) A copy of any order or court notice promptly shall be served on each party’s attorney, or the party if unrepresented.

(2) The clerk of courts shall serve the order or court notice, unless the president judge has promulgated a local rule designating service to be by the court or court administrator.

(3) Methods of Service

Except as otherwise provided in Chapter 5 concerning notice of the preliminary hearing, service shall be:

(a) in writing by

(i) personal delivery to the party’s attorney or, if unrepresented, the party; or

(ii) personal delivery to the party’s attorney’s employee at the attorney’s office; or

(iii) mailing a copy to the party’s attorney or leaving a copy for the attorney at the attorney’s office; or

(iv) in those judicial districts that maintain in the courthouse assigned boxes for counsel to receive service, when counsel has agreed to receive service by this method, leaving a copy for the party’s attorney in the box in the courthouse assigned to the attorney for service; or

(v) sending a copy to an unrepresented party by certified, registered, or first class mail addressed to the party’s place of residence, business, or confinement; or

(vi) sending a copy by facsimile transmission or other electronic means if the party’s attorney, or the party if unrepresented, has filed a written request for this method of service as provided in paragraph (B)(3)(c); or

(vii) delivery to the party’s attorney, or the party if unrepresented, by carrier service; or

(b) orally in open court on the record.

(c) A party’s attorney, or the party if unrepresented, may request to receive service of court orders or notices pursuant to this rule by facsimile transmission or other electronic means by

(i) filing a written request for this method of service in the case or including a facsimile number or an electronic address on a prior legal paper filed in the case; or

(ii) filing a written request for this method of service to be performed in all cases, specifying a facsimile number or an electronic address to which these orders and notices may be sent.

The request for electronic service in all cases filed pursuant to paragraph (ii) may be rescinded at any time by the party’s attorney, or the party if unrepresented, by filing a written notice that service of orders and notices shall be accomplished as otherwise provided in this rule.

(d) In a judicial district that permits electronic filing pursuant to Rule 576.1, service of court orders or notices shall be made as provided in Rule 576.1(D)(2) and (H)(1).

(C) Docket Entries

(1) Docket entries promptly shall be made.

(2) The docket entries shall contain:

(a) the date of receipt in the clerk’s office of the order or court notice;

(b) the date appearing on the order or court notice; and

(c) the date of service of the order or court notice.

(D) Unified Practice

Any local rule that is inconsistent with the provisions of this rule is prohibited, including any local rule requiring a party to file or serve orders or court notices.

This rule was amended in 2004 to provide in one rule the procedures for the filing and service of all orders and court notices, and for making docket entries of the date of receipt, date appearing on the order or notice, and the date of service. This rule incorporates the provisions of former Rule 113 (Notice of Court Proceedings Requiring Defendant’s Presence). But see Rules 511, 540(G)(2), and 542(G) for the procedures for service of notice of a preliminary hearing, which are different from the procedures in this rule.

Historically, some orders or court notices have been served by the court administrator or by the court. Paragraph (B)(2) permits the president judge to continue this practice by designating either the court or the court administrator to serve orders and court notices. When the president judge makes such a designation, the designation must be in the form of a local rule promulgated in compliance with Rule 105 (Local Rules) and Rule of Judicial Administration 103 (Procedures for Adoption, Filing, and Publishing Rules).

Paragraph (C)(2) requires three dates to be entered in the list of docket entries with regard to the court’s orders and notices: the date of receipt of the order or notice; the date appearing on the order or notice; and the date the order or notice is served. The date of receipt is the date of filing under these rules. Concerning appeal periods and entry of orders, see Rule 720 (Post-Sentence Procedures; Appeal) and Pa.R.A.P. 108 (Date of Entry of Orders).

Court notices, as used in this rule, are communications that ordinarily are issued by a judge or the court administrator concerning, for example, calendaring or scheduling, including proceedings requiring the defendant’s presence.

Although paragraph (B)(3)(a)(iv) permits the use of assigned mailboxes for service under this rule, the Attorney General’s office never may be served by this method.

Paragraph (B)(3)(c) provides two methods for consenting to the receipt of orders and notices electronically. The first method, added to this rule in 2004, permits electronic service on a case-by-case basis with an authorization for such service required to be filed in each case. A facsimile number or an electronic address set forth on letterhead is not sufficient to authorize service by facsimile transmission or other electronic means under paragraph (B)(3)(c)(i). The authorization for service by facsimile transmission or other electronic means under this rule is valid only for the duration of the case. A separate authorization must be filed in each case the party or attorney wants to receive documents by this method of service.

The second method was added in 2010 to provide the option of entering a ‘‘blanket consent’’ to electronic service in all cases. It is expected that this would be utilized by those offices that work fre-quently in the criminal justice system, such as a district attorney’s office or public defender’s office, or by a judicial district that has the capability, based upon the availability of local technological resources, to accept a general request from a party to receive court orders and notices electronically. For example, a judicial district may have a system for electronically scanning documents that are stored on the courthouse computer system. In such a situation, an office that is part of the system, such as the District Attorney’s Office or the Public Defender’s Office, could consent to the receipt of all court orders and notices generally. As with service under paragraph (B)(3)(c)(i), a facsimile number or an electronic address set forth on letterhead is not sufficient to authorize service by facsimile transmission or other electronic means under paragraph (B)(3)(c)(ii). This consent may be rescinded as provided in paragraph (B)(3)(c).

Nothing in this rule is intended to preclude the use of automated or other electronic means for the transmission of the orders or court notices between the judge, court administrator, and clerk of courts, or for time stamping or making docket entries.

Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service’s return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

Under the post-sentence motion procedures, the clerk of courts must comply with this rule after entering an order denying a post-sentence motion by operation of law. See Rule 720(B)(3)(c).

This rule makes it clear that the procedures for filing and service, and making docket entries are mandatory and may not be modified by local rule.

Paragraph (D), titled ‘‘Unified Practice,’’ emphasizes that local rules must not conflict with the statewide rules. Although this prohibition on local rules that are inconsistent with the statewide rules applies to all Criminal Rules through Rule 105 (Local Rules) and Rule of Judicial Administration 103 (Procedures for Adoption, Filing, and Publishing Rules), the reference to the specific prohibitions is included because these types of local rules have been identified by practitioners as creating significant impediments to the statewide practice of law within the unified judicial system. See the first paragraph of the Note to Pa.R.J.A. No. 103. The term ‘‘local rule’’ includes every rule, regulation, directive, policy, custom, usage, form or order of general application. See Pa.R.J.A. No. 103(d)(1).

For the definition of ‘‘carrier service,’’ see Rule 103.

See Rule 103 for the definitions of ‘‘clerk of courts’’ and ‘‘court administrator.’’

See Rule 113 (Criminal Case File and Docket Entries) for the requirements concerning the contents of the criminal case file and the minimum information to be included in the docket entries.

Official Note

Formerly Rule 9024, adopted October 21, 1983, effective January 1, 1984; amended March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; renumbered Rule 9025 and Comment revised June 2, 1994, effective September 1, 1994; renumbered Rule 114 and Comment revised March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004; amended August 24, 2004, effective August 1, 2005; amended July 20, 2006, effective September 1, 2006; Comment revised September 18, 2008, effective February 1, 2009; amended December 6, 2010, effective February 1, 2011; amended January 25, 2018, effective May 1, 2018.

Committee Explanatory Reports:

Final Report explaining the March 22, 1993 amendments published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).

Report explaining the June 2, 1994 rule changes published at 23 Pa.B. 5008 (October 23, 1993).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 3, 2004 rule changes concerning filing and service, making docket entries, and orders and court notices published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

Final Report explaining the August 24, 2004 changes concerning notice of preliminary hearing published with the Court’s Order at 34 Pa.B. 5025 (September 11, 2004).

Final Report explaining the July 20, 2006 deletion of ‘‘manner of service’’ from paragraph (C)(2)(c) published with the Court’s Order at 36 Pa.B. 4173 (August 5, 2006).

Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service’s return receipt electronic option published with the Court’s Order at 38 Pa.B. 5428 (October 4, 2008).

Final Report explaining the December 6, 2010 amendment concerning consent to electronic service published with the Court’s Order at 40 Pa.B. 7336 (December 25, 2010).

Final Report explaining January 25, 2018 amendments for service where a court has adopted electronic filing published with the Court’s Order at 48 Pa.B. 861 (February 10, 2018).

The provisions of this Rule 114 amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended July 20, 2006, effective September 1, 2006, 36 Pa.B. 4172; amended September 18, 2008, effective February 1, 2009, 38 Pa.B. 5425; amended December 6, 2010, effective February 1, 2011, 40 Pa.B. 7336; amended January 25, 2018, effective May 1, 2018, 48 Pa.B. 856 and 48 Pa.B. 2759. Immediately preceding text appears at serial pages (390579) to (390582).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 115 Recording and Transcribing Court Proceedings. {#sec-rule-115 omnilex-key=us-pa-regs-official--title-234--Rule 115}

(A) In court cases, after a defendant has been held for court, proceedings in open court shall be recorded.

(B) The transcript shall be requested in accordance with Pa.R.J.A. No. 4007.

(C) At any time before an appeal is taken the transcript may be corrected, and the record may be corrected or modified, in the same manner as is provided by Rules 1922(c) and 1926 of the Pennsylvania Rules of Appellate Procedure.

Some form of record or transcript is necessary to permit meaningful consideration of claims of error and an adequate effective appellate review. See, e.g., Pa.Rs.A.P. 1922, 1923, 1924; Commonwealth v. Fields, 387 A.2d 83 (Pa. 1978); Commonwealth v. Shields, 383 A.2d 844 (Pa. 1978). No substantive change in law is intended by this rule, rather it is intended to provide a mechanism to insure appropriate recording and transcribing of court proceedings. For repeal of statutory provisions on this subject, see Judiciary Act Repealer Act § 2(a); 42 P.S. § § 20002(a) (897), (944).

The rule is intended also to apply to proceedings that occur after the action that is the functional equivalent of holding a defendant for court in those cases in which it is permissible to proceed without a preliminary hearing and, therefore, without specifically holding the defendant for court. See Pa.Rs.Crim.P. 541, 550(D), 561, 565, 1010. In addition, the rule is intended to apply to de novo proceedings in the common pleas courts on appeals in summary cases. For application of the rule to proceedings in the Philadelphia Municipal Court, see Pa.R.Crim.P. 1012(A).

The rule is not intended to preclude adoption of local rules of court providing that arraignment need not be recorded, see Pa.R.Crim.P. 571, nor it is intended to modify any Rules of Criminal Procedure that specifically prohibit the recording or transcribing of all or part of a proceeding. See Pa.R.Crim.P. 313. In addition, the rule is not meant to preclude the use of recording devices for the preservation of testimony under Pa.Rs.Crim.P. 500 and 501.

Paragraph (B) is not intended to preclude the court from ordering a transcript in the absence of a request.

Paragraph (C) provides a method for correcting transcripts and correcting or modifying the record before appeal by incorporating Pa.R.A.P. 1922(c) and Pa.R.A.P. 1926, which otherwise apply only after an appeal has been taken.

Official Note

Rule 9030 adopted April 24, 1981, effective July 1, 1981; Comment revised March 22, 1989, effective July 1, 1989; renumbered Rule 115 and amended March 1, 2000, effective April 1, 2001; amended August 3, 2020, effective October 1, 2020.

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. 1478 (March 18, 2000).

Final Report explaining the August 3, 2020 amendment regarding requests for transcripts pursuant to Pa.R.J.A. No. 4007 published with the Court’s Order at 50 Pa.B. 4124 (August 15, 2020).

The provisions of this Rule 115 amended August 3, 2020, effective October 1, 2020, 50 Pa.B. 4123. Immediately preceding text appears at serial pages (392292) and (390583).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 116 General Supervisory Powers of President Judge. {#sec-rule-116 omnilex-key=us-pa-regs-official--title-234--Rule 116}

The President Judge shall be responsible for ensuring that the judicial district is in compliance with the Pennsylvania Rules of Criminal Procedure, other rules, and statutes, applicable to the minor judiciary, courts, clerks of courts, and court administrators.

By this rule, the Supreme Court is imposing on the president judges the responsibility of supervising their respective judicial districts to ensure compliance with the statewide Rules of Criminal Procedure, other rules, and statutes.

See 42 Pa.C.S. § § 2756 and 2757 concerning the duties of the clerks of courts.

Official Note

Adopted March 3, 2004, effective July 1, 2004.

Committee Explanatory Reports:

Final Report explaining new Rule 116 published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

The provisions of this Rule 116 adopted March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547.

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 117 Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail. {#sec-rule-117 omnilex-key=us-pa-regs-official--title-234--Rule 117}

(A) The president judge of each judicial district shall ensure sufficient availability of issuing authorities to provide the services required by the Rules of Criminal Procedure as follows:

(1) continuous coverage for the issuance of search warrants pursuant to Rule 203 and arrest warrants pursuant to Rule 513;

(2) coverage using one or a combination of the systems of coverage set forth in paragraph (B) to:

(a) conduct summary trials or set collateral in summary cases following arrests with a warrant issued pursuant to Rule 430(A) as provided in Rule 431(B)(3) and following arrests without a warrant as provided in Rule 441(C);

(b) conduct preliminary arraignments without unnecessary delay whenever a warrant of arrest is executed within the judicial district pursuant to Rule 516;

(c) set bail without unnecessary delay whenever an out-of-county warrant of arrest is executed within the judicial district pursuant to Rule 517(A);

(d) accept complaints and conduct preliminary arraignments without unnecessary delay whenever a case is initiated by an arrest without warrant pursuant to Rule 519(A)(1); and

(3) coverage during normal business hours for all other business.

(B) The president judge, taking into consideration the rights of the defendant and the judicial district’s resources and coverage needs, by local rule promulgated pursuant to Rule 105, shall establish one or a combination of the following systems of coverage to provide the services enumerated in paragraph (A)(2):

(1) a traditional on-call system providing continuous coverage;

(2) an ‘‘after-hours court’’ or a ‘‘night court’’ staffed by an on-duty issuing authority and staff;

(3) a regional on-call system; or

(4) a schedule of specified times for after-hours coverage when the ‘‘duty’’ issuing authority will be available to conduct business.

(C) The president judge of each judicial district, by local rule promulgated pursuant to Rule 105, shall ensure that coverage is provided pursuant to Rule 520(B) to admit defendants to bail on any day and at any time in any case pending within the judicial district.

By this rule, the Supreme Court is clarifying the responsibility of president judges in supervising their respective judicial districts to ensure compliance with the statewide Rules of Criminal Procedure to prevent the violation of the rights of defendants caused by the lack of availability of the issuing authority. See also Rule 116 (General Supervisory Powers of President Judge) and Rule 131 (Location of Proceedings Before Issuing Authority).

Paragraph (A), derived from former Rule 132(A) (Continuous Availability), clarifies that it is the president judge’s responsibility to make sure that there are issuing authorities available within his or her judicial district (1) on a continuous basis to issue search and arrest warrants, paragraph (A)(1); (2) pursuant to one or a combination of the systems of coverage enumerated in paragraph (B) to conduct summary trials and preliminary arraignments, and perform related duties, paragraph (A)(2); and (3) during normal business hours to conduct all other business of the minor judiciary, paragraph (A)(3). It is expected that the president judge will continue the established procedures in the judicial district or establish new procedures to ensure sufficient availability of issuing authorities consistent with this paragraph.

By providing the alternate systems of coverage in paragraph (B), this rule recognizes the differences in the geography and judicial resources of the judicial districts.

An issuing authority is ‘‘available’’ pursuant to paragraph (A) when he or she is able to communicate in person or by using advanced communication technology (‘‘ACT’’) with the person requesting services pursuant to this rule. See Rule 103 for the definition of ACT. Concerning the use of ACT, see Rule 118 (Use of Two-Way Simultaneous Audio-Visual Communication in Criminal Proceedings). See also Rules 203, 513, 518, and 540 providing for the use of ACT to request and obtain warrants and conduct preliminary arraignments.

Nothing in this rule limits an issuing authority from exercising sound judicial discretion, within the parameters established by the president judge pursuant to paragraph (B), in deciding how to respond to a request for services outside normal business hours. See, e.g., Rule 509, paragraphs (1) and (2),that authorize the use of summonses instead of warrants in certain court cases; and Rule 519(B) that requires the police officer to release a defendant arrested without a warrant in certain specified court cases.

In determining which system of coverage to elect, the president judge must consider the rights of the defendant, see, e.g. Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987), and the judicial district’s resources and coverage needs, as well as the obligations of the police and attorney for the Commonwealth to ensure the defendant is brought before an issuing authority without unnecessary delay as required by law, see, e.g., Rules 431, 441, 516, 517, and 519. See also Commonwealth v. Perez, 577 Pa. 360, 845 A.2d 779 (2004).

When the police must detain a defendant pursuant to these rules, 61 P. S. § 798 provides that the defendant may be housed for a period not to exceed 48 hours in ‘‘the borough and township lockups and city or county prisons.’’

The proceedings enumerated in paragraph (A)(2) include (1) setting bail before verdict pursuant to Rule 520(A) and Rule 540, and either admitting the defendant to bail or committing the defendant to jail, and (2) determining probable cause whenever a defendant is arrested without a warrant pursuant to Rule 540(E).

Pursuant to paragraph (C), the president judge also is responsible for making sure there is an issuing authority or other designated official available within the judicial district on a continuous basis to accept bail pursuant to Rule 520(B). The president judge, by local rule, may continue established procedures or establish new procedures for the after-hours acceptance of deposits of bail by an issuing authority, a representative of the office of the clerk of courts, or such other individual designated by the president judge. See Rule 535(A). Given the complexities of posting real estate to satisfy a monetary condition of release, posting of real estate may not be feasible outside normal business hours.

When the president judge designates another official to accept bail deposits, that official’s authority is limited under this rule to accepting the bail deposit, and under Rule 525 to releasing the defendant upon execution of the bail bond. Pursuant to Rule 535(A), the official is authorized only to have the defendant execute the bail bond and to deliver the bail deposit and bail bond to the issuing authority or clerk of courts.

The local rule requirements in paragraphs (B) and (C):

(1) ensure there is adequate notice of (a) the system of coverage, thereby providing predictability in the issuing authority’s duty schedule, and (b) the official authorized to accept bail; (2) promote the efficient administration of justice; and (3) provide a means for the Supreme Court to monitor the times and manner of coverage in each judicial district.

The local rules promulgated pursuant to this rule should include other relevant information, such as what are the normal business hours of operation or any special locations designated by the president judge to conduct business, that will assist the defendants, defense counsel, attorneys for the Commonwealth, police, and members of the public.

Concerning other requirements for continuous coverage by issuing authorities in Protection from Abuse Act cases, see 23 Pa.C.S. § 6110 and Pa.R.C.P.D.J. 1203.

Official Note

Former Rule 117 adopted September 20, 2002, effective January 1, 2003; renumbered Rule 118 June 30, 2005, effective August 1, 2006. New Rule 117 adopted June 30, 2005, effective August 1, 2006; Comment revised July 31, 2012, effective November 1, 2012.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 35 Pa.B. 3911 (July 16, 2005).

Final Report explaining the July 31, 2012 revision of the Comment changing the citation to Rule 540(C) to Rule 540(E) published with the Court’s Order at 42 Pa.B. 5340 (August 18, 2012).

The provisions of this Rule 117 adopted June 30, 2005, effective August 1, 2006, 35 Pa.B. 3901; amended July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333. Immediately preceding text appears at serial pages (354888) to (354890).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 118 Court Fees Prohibited for Two-Way Simultaneous Audio-Visual Communication. {#sec-rule-118 omnilex-key=us-pa-regs-official--title-234--Rule 118}

When a criminal proceeding is conducted by using two-way simultaneous audio-visual communication, the court shall not impose a fee upon the defendant for its use.

This rule implements the March 13, 2002 Order of the Supreme Court of Pennsylvania (No. 241 Judicial Administration; Doc. No. 1) that states, ‘‘No fees shall be imposed against a defendant in a criminal proceeding for the utilization of advanced communication technology.’’ See 32 Pa.B. 1642 (March 30, 2002). When a criminal proceeding is conducted using two-way simultaneous audio-visual communication, this rule precludes the imposition of fees upon a defendant for the use of the two-way simultaneous audio-visual communication. See, e.g., Rules 540 (Preliminary Arraignment) and 571 (Arraignment). Two-way simultaneous audio-visual communication is a type of advanced communication technology as defined in Rule 103 (Definitions).

A ‘‘fee’’ as used in this rule includes, but is not limited to, a cost, charge, surcharge, and service charge.

Official Note

New Rule 117 adopted September 20, 2002, effective January 1, 2003; renumbered Rule 118 June 30, 2005, effective August 1, 2006.

Committee Explanatory Reports:

Final Report explaining new Rule 117 published with the Court’s Order at 32 Pa.B. 4815 (October 4, 2002).

Final Report explaining the June 30, 2005 renumbering of Rule 117 as Rule 118 published with the Court’s Order at 35 Pa.B. 3911 (July 16, 2005).

The provisions of this Rule 118 adopted September 20, 2002, effective January 1, 2003, 32 Pa.B. 4814; amended June 30, 2005, effective August 1, 2006, 35 Pa.B. 3901. Immediately preceding text appears at serial pages (303623) to (303624).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 119 Use of Two-Way Simultaneous Audio-Visual Communication in Criminal Proceedings. {#sec-rule-119 omnilex-key=us-pa-regs-official--title-234--Rule 119}

(A) The court or issuing authority may use two-way simultaneous audio-visual communication at any criminal proceeding except:

(1) preliminary hearings;

(2) proceedings pursuant to Rule 569(A)(2)(b);

(3) proceedings pursuant to Rules 595 and 597;

(4) trials;

(5) sentencing hearings;

(6) parole, probation, and intermediate punishment revocation hearings; and

(7) any proceeding in which the defendant has a constitutional or statutory right to be physically present.

(B) The defendant may consent to any proceeding being conducted using two-way simultaneous audio-visual communication.

(C) When counsel for the defendant is present, the defendant must be permitted to communicate fully and confidentially with defense counsel immediately prior to and during the proceeding.

This rule was adopted in 2003 to make it clear that unless the case comes within one of the exceptions in paragraph (A), the court or issuing authority may use two-way simultaneous audio-visual communication in any criminal proceeding. Two-way simultaneous audio-visual communication is a type of advanced communication technology as defined in Rule 103.

Nothing in this rule is intended to limit any right of a defendant to waive his or her presence at a criminal proceeding in the same manner as the defendant may waive other rights. See, e.g., Rule 602 Comment. Negotiated guilty pleas when the defendant has agreed to the sentence, probation revocation hearings, and hearings held pursuant to Rule 908(C) and the Post Conviction Relief Act, 42 Pa.C.S. § § 9541 et seq., are examples of hearings in which the defendant’s consent to proceed using two-way simultaneous audio-visual communication would be required. Hearings on post-sentence motions, bail hearings, bench warrant hearings, extradition hearings, and Gagnon I hearings are examples of proceedings that may be conducted using two-way simultaneous audio-visual communication without the defendant’s consent. It is expected the court or issuing authority would conduct a colloquy for the defendant’s consent when the defendant’s constitutional right to be physically present is implicated.

Within the meaning of this rule, counsel is present when physically with the defendant or with the judicial officer conducting the criminal proceeding.

This rule does not apply to preliminary arraignments (Rule 540), arraignments (Rule 571), or to search warrant (Rule 203) and arrest warrant (Chapter 5 Part B(3)) procedures.

This rule is not intended to preclude the use of advanced communication technology for the preservation of testimony as permitted by Rules 500 and 501.

See Rule 542 for the procedures governing preliminary hearings.

See Chapter 6 for the procedures governing trials.

See Chapter 7 for the procedures governing sentencing hearings.

See Rule 708 for the procedures governing revocation of probation, intermediate punishment, and parole.

The paragraph (A)(5) reference to revocation hearings addresses Gagnon II-type probation (Gagnon v. Scarpelli, 411 U.S. 778 (1973)) and parole (Morrissey v. Brewer, 408 U.S. 471 (1972)) revocation hearings, and is not intended to prohibit the use of two-way simultaneous audio-visual communication in hearings to determine probable cause (Gagnon I).

Official Note

New Rule 118 adopted August 7, 2003, effective September 1, 2003; renumbered Rule 119 and Comment revised June 30, 2005, effective August 1, 2006; amended January 27, 2006, effective August 1, 2006; Comment revised May 4, 2009, effective August 1, 2009; amended July 31, 2012, effective November 1, 2012.

Committee Explanatory Reports:

Final Report explaining new Rule 118 published with the Court’s Order at 33 Pa.B. 4287 (August 30, 2003).

Final Report explaining the June 30, 2005 renumbering of Rule 118 as Rule 119 and the revision of the second paragraph of the Comment published at 35 Pa.B. 3911 (July 16, 2005).

Final Report explaining the January 27, 2006 amendments adding Rule 569 proceedings as a proceeding for which ACT may not be used published with the Court’s Order at 36 Pa.B. 700 (February 11, 2006).

Final Report explaining the May 4, 2009 revision to the Comment adding PCRA hearings as a proceeding to which the defendant may consent to be held using ACT published with the Court’s Order at 39 Pa.B. 2434 (May 16, 2009).

Final Report explaining the July 31, 2012 amendment to paragraph (A) adding proceedings under Rule 595 and 597 as a proceedings for which ACT may not be used published with the Court’s Order at 42 Pa.B. 5340 (August 18, 2012).

The provisions of this Rule 119 adopted August 7, 2003, effective September 1, 2003, 33 Pa.B. 4287; amended June 30, 2005, effective August 1, 2006, 33 Pa.B. 3901; amended January 27, 2006, effective August 1, 2006, 36 Pa.B. 694; amended May 4, 2009, effective immediately, 39 Pa.B. 2434; amended July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333. Immediately preceding text appears at serial pages (360825) to (360826).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 120 Attorneys—Appearances and Withdrawals. {#sec-rule-120 omnilex-key=us-pa-regs-official--title-234--Rule 120}

(A) ENTRY OF APPEARANCE

(1) Counsel for defendant shall file an entry of appearance with the clerk of courts promptly after being retained, and serve a copy of the entry of appearance on the attorney for the Commonwealth.

(a) If a firm name is entered, the name of an individual lawyer shall be designated as being responsible for the conduct of the case.

(b) The entry of appearance shall include the attorney’s address, phone number, and attorney ID number.

(2) When counsel is appointed pursuant to Rule 122 (Appointment of Counsel), the filing of the appointment order shall enter the appearance of appointed counsel.

(3) Counsel shall not be permitted to represent a defendant following a preliminary hearing unless an entry of appearance is filed with the clerk of courts.

(4) An attorney who has been retained or appointed by the court shall continue such representation through direct appeal or until granted leave to withdraw by the court pursuant to paragraph (B).

(B) WITHDRAWAL OF APPEARANCE

(1) Counsel for a defendant may not withdraw his or her appearance except by leave of court.

(2) A motion to withdraw shall be:

(a) filed with the clerk of courts, and a copy concurrently served on the attorney for the Commonwealth and the defendant; or

(b) made orally on the record in open court in the presence of the defendant.

(3) Upon granting leave to withdraw, the court shall determine whether new counsel is entering an appearance, new counsel is being appointed to represent the defendant, or the defendant is proceeding without counsel.

Representation as used in this rule is intended to cover court appearances or the filing of formal motions. Investigation, interviews, or other similar pretrial matters are not prohibited by this rule.

For admission pro hac vice, see Pa.B.A.R. 301.

An attorney may not represent a defendant in a capital case unless the attorney meets the educational and experiential requirements set forth in Rule 801 (Qualifications for Defense Counsel in Capital Cases).

Paragraph (A)(2) was added in 2005 to make it clear that the filing of an order appointing counsel to represent a defendant enters the appearance of appointed counsel. Appointed counsel does not have to file a separate entry of appearance. Rule 122 (Appointment of Counsel) requires that (1) the judge include in the appointment order the name, address, and phone number of appointed counsel, and (2) the order be served on the defendant, appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth pursuant to Rule 114 (Orders and Court Notices: Filing; Service; and Docket Entries).

Under paragraph (B)(2), counsel must file a motion to withdraw in all cases, and counsel’s obligation to represent the defendant, whether as retained or appointed counsel, remains until leave to withdraw is granted by the court. See, e.g., Commonwealth v. Librizzi, 810 A.2d 692 (Pa. Super. Ct. 2002). The court must make a determination of the status of a case before permitting counsel to withdraw. Although there are many factors considered by the court in determining whether there is good cause to permit the withdrawal of counsel, when granting leave, the court should determine whether new counsel will be stepping in or the defendant is proceeding without counsel, and that the change in attorneys will not delay the proceedings or prejudice the defendant, particularly concerning time limits. In addition, case law suggests other factors the court should consider, such as whether (1) the defendant has failed to meet his or her financial obligations to pay for the attorney’s services and (2) there is a written contractual agreement between counsel and the defendant terminating representation at a specified stage in the proceedings such as sentencing. See, e.g., Commonwealth v. Roman. Appeal of Zaiser, 549 A.2d 1320 (Pa. Super. Ct. 1988).

If a post-sentence motion is filed, trial counsel would normally be expected to stay in the case until disposition of the motion under the post-sentence procedures adopted in 1993. See Rules 704 and 720. Traditionally, trial counsel stayed in a case through post-verdict motions and sentencing.

For the filing and service procedures, see Rules 575-576.

For waiver of counsel, see Rule 121.

For the procedures for appointment of counsel, see Rule 122.

See Rule 904(A) that requires an attorney who has been retained to represent a defendant during post-conviction collateral proceedings to file a written entry of appearance.

Official Note

Adopted June 30, 1964, effective January 1, 1965; formerly Rule 303, renumbered Rule 302 and amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; amended March 22, 1993, effective January 1, 1994; renumbered Rule 120 and amended March 1, 2000, effective April 1, 2001; Comment revised February 26, 2002, effective July 1, 2002; Comment revised June 4, 2004, effective November 1, 2004; amended April 28, 2005, effective August 1, 2005; amended December 10, 2013, effective February 10, 2014.

Committee Explanatory Reports:

Final Report explaining the March 22, 1993 amendments published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the February 26, 2002 Comment revision adding the cross-reference to Rule 904 published with the Court’s Order at 32 Pa.B. 1393 (March 16, 2002).

Final Report explaining the April 28, 2005 amendments concerning the filing of an appointment order as entry of appearance for appointed counsel and withdrawal of counsel published with the Court’s Order at 35 Pa.B. 2859 (May 14, 2005).

Final Report explaining the December 10, 2013 change to the Comment published with the Court’s Order at 43 Pa.B. 7546 (December 28, 2013).

The provisions of this Rule 120 amended February 26, 2002, effective July 1, 2002, 32 Pa.B. 1391; amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105; amended April 28, 2005, effective August 1, 2005, 35 Pa.B. 2855; amended December 10, 2013, effective February 10, 2014, 43 Pa.B. 7545. Immediately preceding text appears at serial pages (363562), (360827) to (360828) and (356639).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 121 Waiver of Counsel. {#sec-rule-121 omnilex-key=us-pa-regs-official--title-234--Rule 121}

(A) GENERALLY.

(1) The defendant may waive the right to be represented by counsel.

(2) To ensure that the defendant’s waiver of the right to counsel is knowing, voluntary, and intelligent, the judge or issuing authority, at a minimum, shall elicit the following information from the defendant:

(a) that the defendant understands that he or she has the right to be represented by counsel, and the right to have free counsel appointed if the defendant is indigent;

(b) that the defendant understands the nature of the charges against the defendant and the elements of each of those charges;

(c) that the defendant is aware of the permissible range of sentences and/or fines for the offenses charged;

(d) that the defendant understands that if he or she waives the right to counsel, the defendant will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules;

(e) that the defendant understands that there are possible defenses to these charges that counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently; and

(f) that the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to, or otherwise timely raised by the defendant, these errors may be lost permanently.

(3) The judge or issuing authority may permit the attorney for the Commonwealth or defendant’s attorney to conduct the examination of the defendant pursuant to paragraph (A)(2). The judge or issuing authority shall be present during this examination.

(B) PROCEEDINGS BEFORE AN ISSUING AUTHORITY. When the defendant seeks to waive the right to counsel in a summary case or for a preliminary hearing in a court case, the issuing authority shall ascertain from the defendant whether this is a knowing, voluntary, and intelligent waiver of counsel. In addition, the waiver shall be in writing,

(1) signed by the defendant, with a representation that the defendant was told of the right to be represented and to have an attorney appointed if the defendant cannot afford one, and that the defendant chooses to act as his or her own attorney at the hearing or trial; and

(2) signed by the issuing authority, with a certification that the defendant’s waiver was made knowingly, voluntarily, and intelligently.

The waiver shall be made a part of the record.

(C) PROCEEDINGS BEFORE A JUDGE. When the defendant seeks to waive the right to counsel after the preliminary hearing, the judge shall ascertain from the defendant, on the record, whether this is a knowing, voluntary, and intelligent waiver of counsel.

(D) STANDBY COUNSEL. When the defendant’s waiver of counsel is accepted, standby counsel may be appointed for the defendant. Standby counsel shall attend the proceedings and shall be available to the defendant for consultation and advice.

Paragraph (A) recognizes that the right to self-representation is guaranteed by the sixth amendment to the Federal Constitution when a valid waiver is made, Faretta v. California, 422 U.S. 806 (1975).

In Indiana v. Edwards, 128 S.Ct. 2379, 2388 (2008), the Supreme Court recognized, as an exception to the right to self-representation, that, when a defendant is not mentally competent to conduct his or her own defense, the U.S. Constitution permits the judge to require the defendant to be represented by counsel.

The right of a defendant to waive counsel is not automatic. Under Pennsylvania’s case law, the defendant’s request must be clear and unequivocal. See, e.g., Commonwealth v. Davido, 582 Pa. 52, 64-65, 868 A.2d 431, 438, cert. denied, 546 U.S 1020 (2005).

Concerning when ‘‘meaningful trial proceedings’’ commence for purposes of a request to waive counsel for a bench trial, see Commonwealth v. El, 602 Pa. 126, 977 A.2d 1158 (2009). In El, the Court held that ‘‘meaningful trial proceedings’’ commence ‘‘when a court has begun to hear motions which have been reserved for time of trial; when oral arguments have commenced; or when some other such substantive first step in the trial has begun.’’ Id, at 139, 977 A.2d at 1165, citing Commonwealth v. Dowling, 598 Pa. 611, 959 A.2d 910 (2008) (trial commences, for purposes of the right to a trial by jury, when the trial judge determines that the parties are present and directs them to proceed to opening argument, or to the hearing of any motions that had been reserved for the time of trial, or to some other such first step in the trial).

Court decisions contain broad language in referring to the areas and matters to be encompassed in determining whether the defendant understands the full impact and consequences of his or her waiver of the right to counsel, but is nevertheless willing to waive that right. The appellate courts require, however, at a minimum, that the judge or issuing authority ask questions to elicit the information set forth in paragraph (A)(2).

Although it is advisable that the judge or issuing authority conduct the examination of the defendant, the rule does not prevent the attorney for the Commonwealth or an already-appointed or retained defense counsel from conducting all or part of the examination of the defendant as permitted by the judge or issuing authority. See Commonwealth v. McDonough, 571 Pa. 232, 812 A.2d 504 (2002).

On the issue of waiver of counsel in general, see, e.g., Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976); Commonwealth ex rel. Fairman v. Cavell, 423 Pa. 138, 222 A.2d 722 (1966) (mere execution of a waiver of counsel form, without more, is insufficient to establish a valid waiver); Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964); Commonwealth ex rel. O’Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964).

On the issue of forfeiting the right to representation, see Commonwealth v. Lucarelli, 601 Pa. 185, 971 A.2d 1173 (2009), in which the Court held that Rule 121 and its colloquy requirements do not apply to situations in which forfeiture is found. The Court explained ‘‘where a defendant’s course of conduct demonstrates his or her intention not to seek representation by private counsel, despite having the opportunity and financial wherewithal to do so, a determination that the defendant be required to proceed pro se is mandated because that defendant has forfeited the right to counsel.’’ Id. at 195, 971 A.2d at 1179.

In referring to summary cases, paragraph (B) refers only to those summary cases in which there exists a right to counsel. See Rule 122.

While the rule continues to require a written waiver of counsel incorporating the contents specified in paragraph (B), in proceedings before an issuing authority, the form of waiver was deleted in 1985 because it is no longer necessary to control the specific form of written waiver by rule.

Under paragraph (C) of this rule, the colloquy relating to the defendant’s attempted waiver of counsel must appear on the record. This requirement is not applicable to such waivers in proceedings under paragraph (B), because these proceedings are not in courts of record. However, the absence of such requirement is not intended to be construed as affecting the scope or nature of the inquiry to be made in a particular case.

It is intended that when the defendant has waived his or her right to counsel before the issuing authority for purposes of the preliminary hearing, such waiver shall not normally act as a waiver of the right to counsel in subsequent critical stages of the proceedings. Therefore, under paragraph (C) it is intended that a further waiver is subsequently to be taken by a judge of the court of common pleas.

With respect to trials in court cases, when the defendant waives the right to counsel and elects to proceed pro se, it is generally advisable that standby counsel be appointed to attend the proceedings and be available to the defendant for consultation and advice. See Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976). This is particularly true in cases expected to be long or complicated, or in which there are multiple defendants. See ABA Standards, The Function of the Trial Judge § 6.7 (Approved Draft 1972). The ability of standby counsel to assume control of the defense will minimize delay and disruption of the proceedings in the event that the defendant’s self-representation terminates, e.g., either because such termination becomes necessary as a result of the defendant’s unruly behavior, or because the defendant seeks to withdraw the waiver and be represented by counsel. With respect to pretrial proceedings or summary case trials it is intended that standby counsel may be appointed at the discretion of the presiding judicial officer.

Official Note

Rule 318 adopted October 21, 1977, effective January 1, 1978; amended November 9, 1984, effective January 2, 1985; renumbered Rule 121 and amended March 1, 2000, effective April 1, 2001; amended December 19, 2007, effective February 1, 2008; Comment revised March 29, 2011, effective May 1, 2011.

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. 1478 (March 18, 2000).

Final Report explaining the December 19, 2007 changes to paragraph (A) concerning areas of inquiry for waiver colloquy published with the Court’s Order at 38 Pa.B. 62 (January 5, 2008).

Final Report explaining the March 29, 2011 changes to the Comment adding citations to recent case law concerning right to counsel, time for withdrawal of waiver, and forfeiture of right to counsel published with the Court’s Order at 41 Pa.B. 2000 (April 16, 2011).

The provisions of this Rule 121 amended December 19, 2007, effective February 1, 2008, 38 Pa.B. 61; amended March 29, 2011, effective May 1, 2011, 41 Pa.B. 1999. Immediately preceding text appears at serial pages (332091) to (332092) and (348259).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 122 Appointment of Counsel. {#sec-rule-122 omnilex-key=us-pa-regs-official--title-234--Rule 122}

(A) Counsel shall be appointed:

(1) in all summary cases, for all defendants who are without financial resources or who are otherwise unable to employ counsel when there is a likelihood that imprisonment will be imposed;

(2) in all court cases, prior to the preliminary hearing to all defendants who are without financial resources or who are otherwise unable to employ counsel;

(3) in all cases, by the court, on its own motion, when the interests of justice require it.

(B) When counsel is appointed,

(1) the judge shall enter an order indicating the name, address, and phone number of the appointed counsel, and the order shall be served on the defendant, the appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth pursuant to Rule 114 (Orders and Court Notices: Filing; Service; and Docket Entries); and

(2) the appointment shall be effective until final judgment, including any proceedings upon direct appeal.

(C) A motion for change of counsel by a defendant for whom counsel has been appointed shall not be granted except for substantial reasons.

This rule is designed to implement the decisions of Argersinger v. Hamlin, 407 U. S. 25 (1972), and Coleman v. Alabama, 399 U. S. 1 (1970), that no defendant in a summary case be sentenced to imprisonment unless the defendant was represented at trial by counsel, and that every defendant in a court case has counsel starting no later than the preliminary hearing stage.

No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 535 U. S.654 (2002) and Scott v. Illinois, 440 U. S. 367 (1979). See Rule 454 (Trial in Summary Cases) concerning the right to counsel at a summary trial.

Appointment of counsel can be waived, if such waiver is knowing, intelligent, and voluntary. See Faretta v. California, 422 U. S. 806 (1975). Concerning the appointment of standby counsel for the defendant who elects to proceed pro se, see Rule 121.

In both summary and court cases, the appointment of counsel to represent indigent defendants remains in effect until all appeals on direct review have been completed.

Ideally, counsel should be appointed to represent indigent defendants immediately after they are brought before the issuing authority in all summary cases in which a jail sentence is possible, and immediately after preliminary arraignment in all court cases. This rule strives to accommodate the requirements of the Supreme Court of the United States to the practical problems of implementation. Thus, in summary cases, paragraph (A)(1) requires a pretrial determination by the issuing authority as to whether a jail sentence would be likely in the event of a finding of guilt in order to determine whether trial counsel should be appointed to represent indigent defendants. It is expected that the issuing authorities in most instances will be guided by their experience with the particular offense with which defendants are charged. This is the procedure recommended by the ABA Standards Relating to Providing Defense Services § 4.1 (Approved Draft 1968) and cited in the United States Supreme Court’s opinion in Argersinger, supra. If there is any doubt, the issuing authority can seek the advice of the attorney for the Commonwealth, if one is prosecuting the case, as to whether the Commonwealth intends to recommend a jail sentence in case of conviction.

In court cases, paragraph (A)(2) requires counsel to be appointed at least in time to represent the defendant at the preliminary hearing. Although difficulty may be experienced in some judicial districts in meeting the Coleman requirement, it is believed that this is somewhat offset by the prevention of many post-conviction proceedings that would otherwise be brought based on the denial of the right to counsel. However, there may be cases in which counsel has not been appointed prior to the preliminary hearing stage of the proceedings, e.g., counsel for the preliminary hearing has been waived, or a then-ineligible defendant subsequently becomes eligible for appointed counsel. In such cases it is expected that the defendant’s right to appointed counsel will be effectuated at the earliest appropriate time.

An attorney may not be appointed to represent a defendant in a capital case unless the attorney meets the educational and experiential requirements set forth in Rule 801 (Qualifications for Defense Counsel in Capital Cases).

Paragraph (A)(3) retains in the issuing authority or judge the power to appoint counsel regardless of indigency or other factors when, in the issuing authority’s or judge’s opinion, the interests of justice require it.

Pursuant to paragraph (B)(2) counsel retains his or her appointment until final judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania. In making the decision whether to file a petition for allowance of appeal, counsel must (1) consult with his or her client, and (2) review the standards set forth in Pa.R.A.P. 1114 (Considerations Governing Allowance of Appeal) and the note following that rule. If the decision is made to file a petition, counsel must carry through with that decision. See Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 (2003). Concerning counsel’s obligations as appointed counsel, see Jones v. Barnes, 463 U.S. 745 (1983). See also Commonwealth v. Padden, 783 A.2d 299 (Pa. Super.2001).

See Commonwealth v. Alberta, 601 Pa. 473, 974 A.2d 1158 (2009), in which the Court stated that ‘‘[a]ppointed counsel who has complied with Anders [v. California, 386 U.S. 738 (1967),] and is permitted to withdraw discharges the direct appeal obligations of counsel. Once counsel is granted leave to withdraw per Anders, a necessary consequence of that decision is that the right to appointed counsel is at an end.’’

For suspension of Acts of Assembly, see Rule 1101.

Official Note

Rule 318 adopted November 29, 1972, effective 10 days hence, replacing prior rule; amended September 18, 1973, effective immediately; renumbered Rule 316 and amended June 29, 1977, and October 21, 1977, effective January 1, 1978; renumbered Rule 122 and amended March 1, 2000, effective April 1, 2001; amended March 12, 2004, effective July 1, 2004; Comment revised March 26, 2004, effective July 1, 2004; Comment revised June 4, 2004, effective November 1, 2004; amended April 28, 2005, effective August 1, 2005; Comment revised February 26, 2010, effective April 1, 2010.

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 March 12, 2004 editorial amendment to paragraph (C)(3), and the Comment revision concerning duration of counsel’s obligation, published with the Court’s Order at 34 Pa.B. 1671 (March 27, 2004).

Final Report explaining the March 26, 2004 Comment revision concerning Alabama v. Shelton published with the Court’s Order at 34 Pa.B. 1929 (April 10, 2004).

Final Report explaining the April 28, 2005 changes concerning the contents of the appointment order published with the Court’s Order at 35 Pa.B. 2855 (May 14, 2005).

Final Report explaining the February 26, 2010 revision of the Comment adding a citation to Commonwealth v. Alberta published at 40 Pa.B. 1396 (March 13, 2010).

The provisions of this Rule 122 amended March 12, 2004, effective July 1, 2004, 34 Pa.B. 1671; amended March 26, 2004, effective July 1, 2004, 34 Pa.B. 1929; amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105; amended April 28, 2005, effective August 1, 2005, 35 Pa.B. 2855; amended February 26, 2010, effective April 1, 2010, 40 Pa.B. 1396. Immediately preceeding text appears at serial pages (346779) to (346780) and (332095).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 123 Application for the Assignment of Counsel. {#sec-rule-123 omnilex-key=us-pa-regs-official--title-234--Rule 123}

A defendant who requests assignment of counsel in a court case shall file a signed and verified application for assignment of counsel, which shall set forth the facts showing that the defendant is without financial resources or is otherwise unable to employ counsel.

While this rule continues to require a written application for the assignment of counsel, the form of the application was deleted in 1985 because it is no longer necessary to control the specific form of written application by rule.

Official Note

Rule 318A adopted June 30, 1964, effective January 1, 1965; renumbered Rule 317 June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; rescinded November 9, 1984, effective January 2, 1985. Present Rule 317 adopted November 9, 1984, effective January 2, 1985; renumbered Rule 123 and title and Comment revised March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 124 Waiver of Fees and Costs. {#sec-rule-124 omnilex-key=us-pa-regs-official--title-234--Rule 124}

(a) General Rule. A defendant may seek or obtain a waiver of any fees or costs pursuant to Pa.R.J.A. 1990 that would otherwise operate to impede access to the courts.

(b) Exception. This rule shall not apply to restitution or to fees, costs, or other financial assessments imposed as a result of conviction.

Subdivision (a) is intended to establish a procedure to seek a waiver of fees and costs for indigent parties that would otherwise operate to impede access to the courts. See Pa. Const. art. I, § 11. The administrative costs and expenses for admission into an accelerated rehabilitative disposition program are subject to subdivision (a). See Pa.R.Crim.P. 300(D)(2)(a), Pa.R.Crim.P. 316(a)(2).

Fees, costs, or other financial assessments imposed as a result of conviction are excepted from this rule pursuant to subdivision (b) but may be reduced or waived pursuant to 42 Pa.C.S. § § 9721, 9730, Pa.R.Crim.P. 706, or other authority. Per subdivision (b), restitution, either as a condition of an accelerated rehabilitative disposition program or imposed as a result of a conviction, is not subject to subdivision (a).

Regarding a defendant’s ability to pay restitution and entrance into an accelerated rehabilitative disposition program, ‘‘the district attorney and the court must inquire into the reasons for the petitioner’s inability to pay restitution. If the petitioner shows a willingness to make a bona fide effort to pay whole or partial restitution, the State may not deny entrance to the ARD program.’’ Commonwealth v. Melnyk, 548 A.2d 266, 272 (Pa. Super. 1988).

Pennsylvania Rule of Judicial Administration 1990 (Application to Waive Fees and Costs) sets forth the procedure for seeking or obtaining a waiver of the payment of filing fees. The eligibility criteria at Pa.R.J.A. 1990(c) should inform the defendant whether to proceed by application or praecipe.

For an expungement, an application for a waiver or a praecipe of counsel should be filed at the same docket containing the records the defendant seeks to expunge.

The provisions of this Rule 124 added April 21, 2026, effective November 1, 2026, 56 Pa.B. 2555. Immediately preceding text appears at serial page (356645).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 130 Venue; Transfer of Proceedings. {#sec-rule-130 omnilex-key=us-pa-regs-official--title-234--Rule 130}

(A) VENUE

All criminal proceedings in summary and court cases shall be brought before the issuing authority for the magisterial district which in the offense is alleged to have occurred or before an issuing authority on temporary assignment to serve such magisterial district, subject, however, to the following exceptions:

(1) A criminal proceeding may be brought before any issuing authority of any magisterial district within the judicial district whenever the particular place within the judicial district which the offense is alleged to have occurred in unknown.

(2) When changes arising from the same criminal episode occur in more than one magisterial district within the same judicial district, the criminal proceeding on all the charges should be brought before one issuing authority in any one of the magisterial districts in which the charges arising from the same criminal episode occurred.

(3) When charges arising from the criminal episode occur in more than one judicial district, the criminal proceeding on all the charges may be brought before one issuing authority in a magisterial district within any of the judicial districts in which the charges arising from the same criminal episode occurred.

(4) Whenever an arrest is made without a warrant for any summary offense arising under the Vehicle Code, which allegedly occurred on a highway of the Pennsylvania Turnpike System or any controlled or limited access highway, or any right-of-way of such System or highway, or any other highway or highways of the Commonwealth, the defendant shall be taken and the proceeding shall be brought either where the offense allegedly occurred, or before the issuing authority for any other magisterial district within the same judicial dis- trict 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 judicial district.

(5) When any offense is alleged to have occurred within 100 yards of the boundary between two or more magisterial districts of a judicial district, the proceeding may be brought in either or any of the magisterial districts without regard of the boundary lines of any county.

(6) When the president judge designates a magisterial district or a location in that district in which certain classes of offenses, which occurred in other specified magisterial districts, may be heard.

(B) TRANSFER OF PROCEEDINGS IN COURT CASES

(1) Prior to the completion of the preliminary hearing:

(a) When charges arising from a single criminal episode, which occurred in more than one judicial district,

(i) are filed in more than one judicial district, upon the filing with the issuing authority of a written agreement by the attorneys for the Commonwealth, the proceedings shall be transferred to the magisterial district in the judicial district selected by the attorneys for the Commonwealth; or

(ii) are filed in one judicial district, upon the filing of a written agreement by the attorneys for the Commonwealth, the proceedings shall be transferred to the magisterial district in the judicial district selected by the attorneys for the Commonwealth.

(b) When charges arising from a single criminal episode, which occurred in more than one magisterial district,

(i) are filed in more than one magisterial district, the proceedings may be transferred to the magisterial district selected by the attorney for the Commonwealth; or

(ii) are filed in one magisterial district, the proceedings may be transferred to another magisterial district selected by the attorney for the Commonwealth.

(2) The issuing authority shall promptly transmit to the issuing authority of the magisterial district to which the proceedings are being transferred a certified copy of all docket entries, together with all the original papers filed in the proceeding, a copy of the bail bond and any deposits in satisfaction of a monetary condition of bail, and a bill of the costs which have accrued but have not been collected prior to the transfer.

When charges arising from a single criminal episode occur in more than one judicial district, the magisterial district in which the proceeding on all the charges is brought, i.e., the one with venue, may be any one of the magisterial districts in which the charges occurred. See Commonwealth v. Geyer, 687 A.2d 815 (Pa. 1996) (the compulsory joinder rule and 18 Pa.C.S. § 110 apply when two or more summary offenses arise from a single criminal episode).

Similarly, when charges arising from a single criminal episode occur in more than one magisterial district within one judicial district, the magisterial district in which the proceeding on all the charges is brought, i.e., the one with venue, may be any one of the magisterial districts in which the charges occurred.

The decision of in which magisterial district in paragraph (A)(2) or in which judicial district in paragraph (A)(3) the proceedings are to be brought is to made initially by the law enforcement officers or attorneys for the Commonwealth. In making the decision, the law enforcement officers or attorneys for the Commonwealth must consider in which magisterial district under paragraph (A)(2) or in which judicial district under paragraph (A)(3) it would be in the interests of justice to have the case proceed, based upon the convenience of the defendant and the witnesses, and the prompt administration of justice.

Venue is not altered when an issuing authority conducts a proceeding from an advanced communication technology site outside the issuing authority’s magisterial district or judicial district.

See Rule 134 (Objections to Venue) for the procedures to challenge a transfer of proceedings under this rule.

See Rule 551 for the procedures to withdraw the prosecution.

See Chapter 5 Part C concerning bail.

Official Note

Formerly Rule 154, adopted January 16, 1970, effective immediately; section (a)(3) adopted July 1, 1970, effective immediately; renumbered Rule 21 September 18, 1973, effective January 1, 1974; amended July 1, 1980, effective August 1, 1980; amended January 28, 1983, effective July 1, 1983; renumbered Rule 130 and amended March 1, 2000, effective April 1, 2001; amended April 20, 2000, effective July 1, 2000; amended September 19, 2000, effective January 1, 2001; amended May 10, 2002, effective September 1, 2002; amended May 21, 2004, effective July 1, 2004.

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 April 20, 2000 amendments concerning multiple charges arising from a single criminal episode published with the Court’s Order at 30 Pa.B. 2219 (May 6, 2000).

Final Report explaining the September 19, 2000 amendments clarifying the application of the rule to both summary and court cases published with the Court’s Order at 30 Pa.B. 5135 (October 7, 2000).

Final Report explaining the May 10, 2002 amendments concerning advanced communication technology published with the Court’s Order at 32 Pa.B. (May 25, 2002).

Final Report explaining the May 21, 2004 changes concerning joinder published with the Court’s Order at 34 Pa.B. 2911 (June 5, 2004).

The provisions of this Rule 130 amended April 20, 2000, effective July 1, 2000, 30 Pa.B. 2211; amended September 19, 2000, effective January 1, 2001, 30 Pa.B. 5135; amended May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended May 21, 2004, effective July 1, 2004, 34 Pa.B. 2910. Immediately preceding text appears at serial pages (289070) to (289072).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 131 Location of Proceedings Before Issuing Authority. {#sec-rule-131 omnilex-key=us-pa-regs-official--title-234--Rule 131}

(A) An issuing authority within the magisterial district for which he or she is elected or appointed shall have jurisdiction and authority to receive complaints, issue warrants, hold preliminary arraignments, set and receive bail, issue commitments to jail, and hold hearings and summary trials.

(1) Except as provided in paragraph (A)(2), all preliminary arraignments shall be held in the issuing authority’s established office, a night court, or some other facility within the Commonwealth designated by the president judge, or the president judge’s designee.

(2) Preliminary arraignments may be conducted using advanced communication technology pursuant to Rule 540. The preliminary arraignment in these cases may be conducted from any site within the Commonwealth designated by the president judge, or the president judge’s designee.

(3) All hearings and summary trials before the issuing authority shall be held publicly at the issuing authority’s established office. For reasons of emergency, security, size, or in the interests of justice, the president judge, or the president judge’s designee, may order that a hearing or hearings, or a trial or trials, be held in another more suitable location within the judicial district.

(4) The issuing authority may receive complaints, issue warrants, set and receive bail, and issue commitments to jail from any location within the judicial district, or from an advanced communication technology site within the Commonwealth.

(B) When local conditions require, the president judge may establish procedures for preliminary hearings or summary trials, in all cases or in certain classes of cases, to 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. The president judge shall petition the Administrative Office of Pennsylvania Courts (AOPC) for such relocation of proceedings at a central place or places, and the Supreme Court of Pennsylvania shall make the ultimate decision as to whether to approve the petition. The petition procedure is as follows:

(1) Notice.

(a) Written notice of the proposed change in location of proceedings shall be provided to all magisterial district judges in the county and to each municipality and each police department that would be affected by the proposed petition.

(b) Notice of the proposal shall be provided to the public by posting of the proposal on the court or county official website and by any additional means that the president judge deems appropriate. The notice must be placed at least 30 days before submission of the proposal to the AOPC and must invite members of the public to provide written comment on the proposal. All written comments must be attached to the petition.

(c) Each magisterial district judge shall provide a written statement whether the judge supports or opposes the recommendation. These statements shall be attached to the petition. If any judge affected by the proposal fails to submit a statement within 30 days of the distribution of the written notice in subsection (a) above, the president judge shall note this fact in the petition.

(2) Petition.

(a) A petition containing the proposal shall be transmitted to the AOPC, with a copy sent to all magisterial district judges in the judicial district, to all municipalities affected by the proposal, to all police departments affected by the proposal, and to the Supreme Court of Pennsylvania. The petition shall contain the following:

(i) a statement detailing what local conditions require the formation of a central court and what improvement would be made to the Magisterial District Court system with any data or other documentation,

(ii) an assessment of the impact on public accessibility to the relocated court proceedings,

(iii) an estimate of the fiscal impact of the proposal for the county, municipalities, police departments and other stakeholders,

(iv) a copy of the statements from all affected magisterial district judges as to their position on the proposal, or a notation of any magisterial district judge who declined to provide such a statement, and

(v) a copy of the public notice that was posted regarding the proposal and all written comments.

(b) Answers in opposition to the petition may be submitted to the AOPC by any interested party within thirty days of the submission of the original petition. Any answer should include a concise statement of reasons why the petition should be denied and should reference the standards listed below. A copy of the answer shall be sent to the president judge and to the Supreme Court of Pennsylvania. The president judge may submit a response to the answer within fifteen days of the submission of the answer.

(3) Standards.

(a) Any change shall not diminish the equitable distribution of cases between the magisterial district judges in the county.

(b) No change shall restrict public access to the courts.

(c) No change may create a situation where a duly elected magisterial district judge is hearing cases from outside the district from which he or she was elected on a regularly scheduled basis.

(4) Decision.

The AOPC shall provide its recommendation as to whether to approve the petition to the Supreme Court of Pennsylvania. The Supreme Court of Pennsylvania shall decide whether to approve the petition.

(5) Implementation.

Following the approval of a petition, the president judge shall consult with the affected magisterial district judges to ensure that the changes are implemented without undue disruption.

Paragraph (A)(3) permits the president judge, or the president judge’s designee, to order that a hearing or hearings be held in a location that is different from the issuing authority’s established office. The creation of central courts is governed by paragraph (B) of this rule.

See Rule 540 and Comment for the procedures governing the use of advanced communication technology in preliminary arraignments.

See Rule 130 concerning the venue when proceedings are conducted by using advanced communication technology.

Paragraph (A)(4) permits issuing authorities to perform their official duties from an advanced communication technology site within the Commonwealth. The site may be located outside the magisterial district or judicial district where the issuing authority presides.

Paragraph (B) sets forth a procedure requiring examination of the effects of relocation to a central place or places, including inconvenience to the public. Such changes in location affect access to justice and may change procedures. Therefore, this procedure mandates approval by the Supreme Court of Pennsylvania to ensure a more unified system as is done in similar matters like Reestablishment of Magisterial Districts (42 Pa.C.S. § 1503), Establishment of Offices (Pa.R.Civ.P.M.D.J. 101), etc.

Nothing in this rule limits the President Judges’ authority to develop county-wide systems for preliminary arraignments and coverage for other after-hours emergency matters per Pa.R.Crim.P. 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail).

Ideally, the location of a central court should minimize inconvenience to the public. Long travel discourages the public from attending hearings, paying fines, or posting bail, may result in dispositional delays and increased litigation costs, and may hinder access to emergency relief, such as protection from abuse orders. Proximity to magisterial district courts ‘‘is an important ingredient in the public’s. . .trust in the judicial branch.’’ Report of the Magisterial District Reestablishment Subcommittee Intergovernmental Task Force to Study the District Justice System, 2001.

This rule is not intended to reverse existing orders relocating magisterial district judge proceedings to a central court.

Official Note

Formerly Rule 156, paragraph (a) adopted January 16, 1970, effective immediately; paragraph (a) amended and paragraph (b) adopted November 22, 1971, effective immediately; renumbered Rule 22 September 18, 1973, effective January 1, 1974; renumbered Rule 131 and amended March 1, 2000, effective April 1, 2001; amended March 12, 2002, effective July 1, 2002; amended May 10, 2002, effective September 1, 2002; amended June 30, 2005, effective August 1, 2006.

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. 1478 (March 18, 2000).

Final Report explaining the March 12, 2002 amendments concerning centralized courts for summary trials published with the Court’s Order at 32 Pa.B. 1630 (March 30, 2002).

Final Report explaining the May 10, 2002 amendments concerning advanced communication technology published with the Court’s Order at 32 Pa.B. 2591 (May 25, 2002).

Final Report explaining the June 30, 2005 deletion in paragraph (A) of ‘‘at all times’’ published with the Court’s Order at 35 Pa.B. 3911 (July 16, 2005).

The provisions of this Rule 131 amended March 12, 2002, effective July 1, 2002, 32 Pa.B. 1630; amended May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended June 30, 2005, effective August 1, 2006, 35 Pa.B. 3901; amended November 14, 2022, effective in 30 days, 52 Pa.B. 7252. Immediately preceding text appears at serial pages (312408) to (312410).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 132 Temporary Assignment of Issuing Authorities. {#sec-rule-132 omnilex-key=us-pa-regs-official--title-234--Rule 132}

(A) The president judge may assign temporarily the issuing authority of any magisterial district to serve another magisterial district whenever such assignment is needed:

(1) to satisfy the requirements of Rule 117;

(2) to insure fair and impartial proceedings;

(3) to conduct a preliminary hearing pursuant to Rule 544(B); or

(4) otherwise for the efficient administration of justice.

One or more issuing authorities may be so assigned to serve one or more magisterial districts.

(B) Whenever a temporary assignment is made under this rule, notice of such assignment shall be filed with the clerk of courts where it shall be available for police agencies and other interested persons.

(C) A motion may be filed requesting a temporary assignment under this rule on the ground that the assignment is needed to insure fair and impartial proceedings. Reasonable notice and opportunity to respond shall be provided to the parties.

(D) A motion shall be filed requesting a temporary assignment under paragraph (A)(3) whenever the attorney for the Commonwealth elects to proceed under Rule 544(B) following the refiling of a complaint.

The provisions of former paragraph (A) (Continuous Availability) were incorporated into new Rule 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail) in 2005.

Paragraphs (A)(2) and (C) make explicit the authority of president judges to assign issuing authorities when necessary to insure fair and impartial proceedings, and to provide a procedure for a party to request such an assignment. Temporary assignment in this situation is intended to cover what might otherwise be referred to as ‘‘change of venue’’ at the magisterial district level. See, e.g., Sufrich v. Commonwealth, 68 Pa. Cmwlth. 42, 447 A.2d 1124 (1982).

The motion procedure of paragraph (C) is intended to apply when a party requests temporary assignment to insure fair and impartial proceedings. The president judge may, of course, order a response and schedule a hearing with regard to such a motion. However, this paragraph is not intended to require ‘‘a formal hearing . . . beyond the narrow context of a motion for temporary assignment of issuing authority to insure fair and impartial proceedings predicated upon allegations which impugn the character or competence of the assigned issuing authority and which seek the recusal of the assigned issuing authority.’’ See Commonwealth v. Allem, 367 Pa. Super. 173, 532 A.2d 845 (1987) (filing and service of the written motion and answer, and allowance of oral argument were more than adequate to meet the rule’s requirements).

Paragraphs (A)(3) and (D) govern those situations in which the attorney for the Commonwealth, after refiling the complaint following the withdrawal or dismissal of any criminal charges at, or prior to, a preliminary hearing, determines that the preliminary hearing should be conducted by a differentissuing authority. See also Rule 544 (Reinstituting Charges Following Withdrawal or Dismissal). Under Rule 544, the president judge may designate another judge within the judicial district to handle reassignments.

The motion procedure is not intended to apply in any of the many other situations in which president judges make temporary assignments of issuing authorities; in all these other situations the president judges may make temporary assignments on their own without any motion, notice, response, or hearing.

Official Note

Formerly Rule 152, adopted January 16, 1970, effective immediately; amended and renumbered Rule 23 September 18, 1973, effective January 1, 1974; amended October 21, 1983, effective January 1, 1984; amended February 27, 1995, effective July 1, 1995; amended October 8, 1999, effective January 1, 2000; renumbered Rule 132 and amended March 1, 2000, effective April 1, 2001; amended June 30, 2005, effective August 1, 2006.

Committee Explanatory Reports:

Final Report explaining the February 27, 1995 amendments published with the Court’s Order at 25 Pa.B. 936 (March 18, 1995).

Final Report explaining the October 8, 1999 amendments concerning motions for temporary assignment of issuing authority following the reinstitution of criminal charges published with the Court’s Order at 29 Pa.B. 5509 (October 23, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the June 30, 2005 changes to the rule correlative to the changes in procedure in new Rule 117 published with the Court’s Order at 35 Pa.B. 3911 (July 16, 2005).

The provisions of this Rule 132 amended June 30, 2005, effective July 1, 2006, 35 Pa.B. 3901. Immediately preceding text appears at serial pages (289074) to (289076).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 133 Powers of Temporarily Assigned Issuing Authorities. {#sec-rule-133 omnilex-key=us-pa-regs-official--title-234--Rule 133}

(A) Whenever an issuing authority is temporarily assigned to serve another magisterial district, the issuing authority shall, during the period of assignment, have the same jurisdiction and authority as one elected and qualified to serve in such magisterial district.

(B) An issuing authority so assigned may exercise such jurisdiction and authority in his or her own magisterial district or the magisterial district to which the issuing authority has been so assigned.

Official Note

Formerly Rule 153, adopted January 16, 1970, effective immediately; renumbered Rule 24 September 18, 1973, effective January 1, 1974 renumbered Rule 133 and amended March 1, 2000, effective April 1, 2001.

Committee Explanator 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).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 134 Objections to Venue. {#sec-rule-134 omnilex-key=us-pa-regs-official--title-234--Rule 134}

(A) Objections to venue between magisterial districts shall be raised in the court of common pleas of the judicial district in which the proceeding has been brought, before completion of the preliminary hearing in a court case or before completion of the summary trial when a summary offense is charged, or such objections shall be deemed to have been waived.

(B) No objection to venue between magisterial districts shall be allowed unless substantial prejudice will result if the proceeding is allowed to continue before the issuing authority before whom it has been brought.

(C) No criminal proceedings shall be dismissed because of improper venue between magisterial districts. Whenever an objection to such venue is allowed, the court of common pleas shall order the transfer of the proceeding to the issuing authority of the proper magisterial district.

An objection to venue under this rule would include a challenge to the transfer of proceedings pursuant to Rule 130(B).

Official Note

Formerly Rule 155, adopted January 6, 1970, effective immediately; renumbered Rule 25 September 18, 1973, effective January 16, 1974; amended January 28, 1983, effective July 1, 1983; renumbered Rule 134 and amended March 1, 2000, effective April 1, 2001; amended April 20, 2000, effective July 1, 2000.

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 April 20, 2000 amendments concerning multiple charges arising from a single criminal episode published with the Court’s Order at 30 Pa.B. 2219 (May 6, 2000).

The provisions of this Rule 134 amended April 20, 2000, effective July 1, 2000, 30 Pa.B. 2211. Immediately preceding text appears at serial page (264132).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 135 Transcript of Proceedings Before Issuing Authority. {#sec-rule-135 omnilex-key=us-pa-regs-official--title-234--Rule 135}

(a) The issuing authority shall prepare and forward to the court of common pleas a transcript of the proceedings in all summary cases when an appeal is taken and in all court cases when the defendant is held for court.

(b) The transcript shall contain the following information, where applicable:

(1) the date and place of hearings;

(2) the names and addresses of the prosecutor, defendant, and witnesses;

(3) the names and office addresses of counsel in the proceeding;

(4) the charge against the defendant as set forth in the prosecutor’s complaint;

(5) the date of issuance of any citation, summons, or warrant of arrest and the return of service thereon;

(6) a statement whether the parties and witnesses were sworn and which of these persons testified;

(7) when the defendant was held for court the amount of bail set;

(8) the nature of the bail posted and the name and address of the corporate surety or individual surety;

(9) a notation that the defendant has or has not been fingerprinted;

(10) a specific description of any defect properly raised in accordance with Rule 109;

(11) a notation that the defendant was advised of the right to apply for the assignment of counsel;

(12) the defendant’s plea of guilty or not guilty, the decision that was rendered in the case and the date thereof, and the judgment of sentence and place of confinement, if any; and

(13) any other information required by the rules to be in the issuing authority’s transcript.

(c) Electronic Transmission.

(1) The president judge by local rule may require the transcript and any associated documents to be electronically scanned and transmitted to the clerk of courts in digital format in lieu of transmitting the physical paper transcript and associated documents.

(2) The electronically scanned transcript and associated documents shall constitute the original documents for purposes of these rules.

(3) The issuing authority shall retain the physical paper transcript and associated documents as may be required by rule of court or records retention policies.

The requirement of a docket was deleted from this rule in 1985 because dockets are now routinely maintained under the supervision of the Administrative Office of Pennsylvania Courts. It is expected that issuing authorities will continue to keep dockets of criminal proceedings. The transcript requirements presuppose an accurate docket to supply the information necessary to prepare a transcript.

The procedures regarding the filing of a transcript after appeal in summary cases are set forth in Rule 460(c) and (d). For such procedures after the defendant is held for court in a court case, see Rule 547. With regard to other information required by the rules to be in the transcript, see, e.g., Rule 542(G)(1).

The requirement that there be a notation indicating whether the defendant has been fingerprinted as required by the Criminal History Record Information Act, 18 Pa.C.S. § 9112, is to alert the district attorney and the court whether it is necessary to have the defendant fingerprinted after the case is held for court.

The provisions of this Rule 135 amended July 10, 2008, effective February 1, 2009, 38 Pa.B. 3971; amended May 2, 2024, effective April 1, 2025, 54 Pa.B. 2738. Immediately preceding text appears at serial pages (390231) to (390232).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 140 Contempt Proceedings Before Magisterial District Judges and Pittsburgh Magistrates Court Judges. {#sec-rule-140 omnilex-key=us-pa-regs-official--title-234--Rule 140}

(A) CONTEMPT IN THE PRESENCE OF THE COURT

(1) An issuing authority may summarily hold an individual in contempt for misbehavior in the presence of the court that obstructs the administration of justice, and, after affording the individual an opportunity to be heard, may impose a punishment of a fine of not more than $100 or imprisonment for not more than 30 days or both.

(2) The issuing authority shall orally advise the contemnor of the right to appeal within 30 days for a trial de novo in the court of common pleas, and that:

(a) any punishment shall be automatically stayed for a period of 30 days from the date of the imposition of the punishment;

(b) if the contemnor files an appeal within the 30-day period, the stay will remain in effect pending disposition of the appeal;

(c) when the punishment is imprisonment, the contemnor has the right to assistance of counsel for the purpose of the de novo hearing in the court of common pleas, and, if the contemnor is without financial resources or otherwise unable to employ counsel, counsel will be assigned as provided in Rule 122;

(d) the contemnor must appear in the court of common pleas for the de novo hearing or the appeal may be dismissed; and

(e) unless a notice of appeal is filed within the 30-day period, on the date specified by the issuing authority, the contemnor must:

(i) pay any fine imposed; and

(ii) appear before the issuing authority for execution of any punishment of imprisonment.

(3) The issuing authority shall issue a written order of contempt, in which the issuing authority shall:

(a) set forth the facts of the case that constitute the contempt;

(b) certify that the issuing authority saw or heard the conduct constituting the contempt, and that the contempt was committed in the actual presence of the issuing authority;

(c) set forth the punishment imposed, and the date on which the contemnor is to pay any fine or to appear for the execution of any punishment of imprisonment; and

(d) set forth the information specified in paragraph (A)(2).

(4) The order of contempt shall be signed by the issuing authority, and a copy shall be given to the contemnor.

(B) CONTEMPT NOT IN THE PRESENCE OF THE COURT

(1) INSTITUTION OF PROCEEDINGS

(a) An issuing authority may institute contempt proceedings by either

(i) giving written notice to the alleged contemnor of the time, date, and place of the contempt hearing, or

(ii) when deemed appropriate by the issuing authority, issuing an attachment by means of a warrant,

whenever a person is alleged to have (a) failed to obey a subpoena issued by the issuing authority; (b) failed to comply with an order of the issuing authority directing a defendant to pay fines and costs in accordance with an installment payment order; (c) failed to comply with an order of an issuing authority directing a defendant to compensate a victim; or (d) failed to comply with an order of an issuing authority in any case in which the issuing authority is by statute given the power to find the person in contempt.

(b) If the proceedings are instituted by notice, the notice shall:

(i) specify the acts or omissions and the essential facts constituting the contempt charged;

(ii) advise what the punishment may be for a finding of contempt in the case;

(iii) if, in the event of a finding of contempt, there is a likelihood that the punishment will be imprisonment, advise the alleged contemnor of the right to the assistance of counsel and that counsel will be assigned pursuant to Rule 122 if the alleged contemnor is without financial resources or is otherwise unable to employ counsel; and

(iv) advise the alleged contemnor that failure to appear at the hearing may result in the issuance of a bench warrant.

(c) The notice shall be served in person or by both first class and certified mail, return receipt requested.

(2) HEARING

(a) The hearing shall be conducted in open court, and the alleged contemnor shall be given a reasonable opportunity to defend.

(b) At the conclusion of the hearing:

(i) The issuing authority in open court shall announce the decision, and, upon a finding of contempt, impose punishment, if any.

(ii) If the issuing authority finds contempt and imposes punishment, the issuing authority shall orally advise the contemnor of the right to appeal within 30 days for a trial de novo in the court of common pleas, and that:

(a) any punishment shall be automatically stayed for a period of 30 days from the date of the imposition of the punishment;

(b) if the contemnor files an appeal within the 30-day period, the stay will remain in effect until disposition of the appeal;

(c) when the punishment is imprisonment, that the contemnor has the right to assistance of counsel for the purpose of the de novo hearing in the court of common pleas and, if the contemnor is without financial resources or otherwise unable to employ counsel, that counsel will be assigned as provided in Rule 122;

(d) the contemnor must appear in the court of common pleas for the de novo hearing or the appeal may be dismissed; and

(e) unless a notice of appeal is filed within the 30-day period, on the date specified by the issuing authority, the contemnor must:

(i) pay any fine imposed; and

(ii) appear before the issuing authority for execution of any punishment of imprisonment.

(iii) If the issuing authority finds contempt and imposes punishment, the issuing authority shall issue a written order of contempt setting forth:

(a) the facts of the case that constitute the contempt;

(b) the punishment imposed, and the date on which the contemnor is to pay any fine or to appear for the execution of any punishment of imprisonment; and

(c) the information specified in paragraph (B)(2)(b)(ii).

(iv) The order of contempt shall be signed by the issuing authority, and a copy given to the contemnor.

(v) Whether or not the issuing authority finds an individual in contempt for failure to comply with an order to pay restitution or to pay fines and costs, the issuing authority may alter or amend the order. If the issuing authority alters or amends the order, the issuing authority shall:

(a) issue a written order setting forth the amendments and the reasons for the amendments, make the order a part of the transcript, and give a copy of the order to the defendant; and

(b) advise the defendant that the defendant has 30 days within which to file a notice of appeal of the altered or amended order pursuant to Rule 141.

c. The issuing authority shall not hold a contempt hearing in the absence of the alleged contemnor. If the alleged contemnor fails to appear for the contempt hearing, the issuing authority may continue the hearing and issue a bench warrant.

(3) PUNISHMENT

Punishment for contempt may not exceed the limits set forth as follows:

(a) Whenever a person is found to have failed to obey a subpoena issued by the issuing authority, punishment may be a fine of not more than $100. Failure to pay the fine within a reasonable time may result in imprisonment for not more than 10 days.

(b) Whenever a person is found to have failed to comply with an order of the issuing authority directing a defendant to pay fines and costs in accordance with an installment payment order, punishment may be imprisonment for not more than 90 days.

(c) Whenever a person is found to have failed to comply with an order of an issuing authority directing a defendant to compensate a victim, punishment may be a fine of not more than $100 or imprisonment for not more than 30 days, or both.

This rule sets forth the procedures to implement 42 Pa.C.S. § § 4137 and 4138 concerning contempt powers of the minor judiciary, as well as any other statutes subsequently enacted that would provide for findings of contempt by the minor judiciary. It is not intended to supplant the procedures set forth in 23 Pa.C.S. § 6110 et seq. concerning violations of protection from abuse orders.

The scope of the contempt powers of magisterial district judges and Pittsburgh Magistrates Court judges is governed by 42 Pa.C.S. § § 4137 and 4138 respectively. Therefore, as used in this rule, ‘‘issuing authority’’ refers only to magisterial district judges and Pittsburgh Magistrates Court judges when acting within the scope of their contempt powers. However, 42 Pa.C.S. § § 4137(c) and 4138(c) contain limitations upon the punishment that a minor court may impose for contempt. Such statutory limitations were held to be unconstitutional in Commonwealth v. McMullen, 961 A.2d 842 (Pa. 2008).

By Orders dated November 29, 2004, 34 Pa.B. 6507 (December 11, 2004) and February 25, 2005, 35 Pa.B. 1662 (March 12, 2005), the Pennsylvania Supreme Court created an administrative judicial unit referred to as the Pittsburgh Municipal Court and assigned all matters within the jurisdiction of the Pittsburgh Magistrates Court to the Pittsburgh Municipal Court. As a result of these orders, the Pittsburgh Magistrates Court is no longer staffed while the Pittsburgh Municipal Court is staffed by Allegheny County magisterial district judges assigned on a rotating basis. The terminology is retained in these rules because the Pittsburgh Magistrates Court, which is created by statute, has not been disestablished by the statute.

This rule was amended in 2018 to remove references to Philadelphia Traffic Court judges after that Court was abolished by an amendment to Article 5, Section 6, of the Pennsylvania Constitution.

All contempt proceedings under this rule are to be entered on the issuing authority’s miscellaneous docket, and a separate docket transcript for the contempt proceeding is to be prepared. If an appeal is taken, the issuing authority is required to forward the transcript and the contempt order to the clerk of courts. See Rule 141.

Paragraph (A) sets forth the procedures for handling contempt proceedings when the misbehavior is committed in the presence of the court and is obstructing the administration of justice. See 42 Pa.C.S. § § 4137(a)(1) and 4138(a)(1). This type of contempt is commonly referred to as ‘‘direct’’ or ‘‘summary’’ contempt. The issuing authority may immediately impose punishment without a formal hearing because prompt action is necessary to maintain or restore order in the courtroom and to protect the authority and dignity of the court. Although immediate action is permitted in these cases, the alleged contemnor is ordinarily given an opportunity to be heard before the imposition of punishment. See Commonwealth v. Stevenson, 393 A.2d 386 (Pa. 1978).

Customarily, individuals are not held in summary contempt for misbehavior before the court without prior oral warning by the presiding judicial officer.

Paragraph (B) provides the procedures for instituting and conducting proceedings in all other cases of alleged contemptuous conduct subject to the minor judiciary’s statutory contempt powers, which are commonly referred to as ‘‘indirect criminal contempt’’ proceedings.

For purposes of this rule, the phrase ‘‘failed to obey a subpoena issued by the issuing authority’’ in paragraph (B)(1)(a) is intended to include the failure to obey any other lawful process ordering the person to appear before an issuing authority.

Pursuant to 42 Pa.C.S. § § 4137(a)(2), (3), and (4) and 4138(a)(2) and (3), only issuing authorities have the power to impose punishment for contempt of court for failure to comply with an order directing a defendant to compensate a victim. See paragraph (B)(1)(a).

‘‘Indirect criminal contempt’’ proceedings must be instituted either by serving the alleged contemnor with a notice of the contempt hearing, or by issuing an attachment in the form of a warrant. The alleged contemnor must be afforded the same due process protections that are normally provided in criminal proceedings, including notice of the charges, an opportunity to be heard and to present a defense, and counsel. See, e.g., Codispoti v. Pennsylvania, 418 U. S. 506 (1974), and Bloom v. Illinois, 391 U. S. 194 (1968).

When a warrant is executed under this rule, the alleged contemnor should be taken without unreasonable delay before the proper issuing authority.

Although 42 Pa.C.S. § § 4137(a)(4) and 4138(a)(3) permit an issuing authority to impose summary punishments for indirect criminal contempt when a defendant fails to comply with an order of the issuing authority directing the defendant to pay fines and costs in accordance with an installment payment order, nothing in this rule is intended to preclude an issuing authority from proceeding pursuant to Rule 456 (Default Procedures: Restitution, Fines, and Costs).

No defendant may be sentenced to imprisonment if the right to counsel was not afforded at the contempt hearing. See Alabama v. Shelton, 535 U. S. 654 (2002), Scott v. Illinois, 440 U. S. 367 (1979), and Argersinger v. Hamlin, 407 U. S. 25 (1972). Also see Rule 454 concerning counsel in summary cases. The Supreme Court in Commonwealth v. Abrams, 336 A.2d 308 (Pa. 1975), held that the right to counsel applies in cases of criminal contempt. See also Commonwealth v. Crawford, 352 A.2d 52 (Pa. 1976).

For the assignment of counsel, follow the Rule 122 procedures for summary cases.

For waiver of counsel, follow the Rule 121 procedures for proceedings before an issuing authority.

For the procedures for taking, perfecting, and handling an appeal from an order entered pursuant to this rule, see Rule 141.

If a contemnor defaults in the payment of a fine imposed as punishment for contempt pursuant to this rule, the matter is to proceed as provided in Rule 142.

See Chapter 5 Part C concerning bail before a contempt hearing. See 42 Pa.C.S. § 4137(e) concerning a magisterial district judge’s authority to set bail after an adjudication of contempt.

Paragraphs (A)(2)(e) and (B)(2)(b)(2)(e) require the issuing authority to set a date for the contemnor to pay any fine or to appear for execution of any punishment of imprisonment. This date should be at least 35 days from the date of the contempt proceeding to allow for the expiration of the 30-day automatic stay period and the 5-day period within which the clerk of courts is to serve a copy of the notice of appeal on the issuing authority. See Rule 141.

Paragraph (B)(2)(b)(5) requires that the case be reviewed at the conclusion of a contempt hearing to determine whether the restitution order or the fines and costs installment order should be altered or amended, rather than scheduling another hearing. This review should be conducted whether or not the issuing authority finds an individual in contempt for failure to comply with an order to pay restitution, or whether or not the issuing authority finds an individual in contempt for failure to comply with an installment order to pay fines and costs. For the authority to alter or amend a restitution order, see 18 Pa.C.S. § 1106(c)(3).

Official Note

Rule 30 adopted October 1, 1997, effective October 1, 1998; renumbered Rule 140 and amended March 1, 2000, effective April 1, 2001; Comment revised March 26, 2004, effective July 1, 2004; amended March 1, 2012, effective July 1, 2012; Comment revised May 7, 2014, effective immediately; amended January 2, 2018, effective April 1, 2018.

Committee Explanatory Reports:

Final Report explaining the provisions of new Rule 30 published with the Court’s Order at 27 Pa.B. 5405 (October 18, 1997).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 26, 2004 Comment revision concerning right to counsel published with the Court’s Order at 34 Pa.B. 1931 (April 10, 2004).

Final Report explaining the March 1, 2012 amendments concerning limitations on punishment for contempt published with the Court’s Order at 42 Pa.B. 1367 (March 17, 2012).

Final Report explaining the May 7, 2014 Comment revision concerning the transfer of the Philadelphia Traffic Court functions to the Philadelphia Municipal Court published with the Court’s Order at 44 Pa.B. 3065 (May 24, 2014).

Final Report explaining the January 2, 2018 amendment concerning the abolition of the Philadelphia Traffic Court published with the Court’s Order at 48 Pa.B. 495 (January 20, 2018).

The provisions of this Rule 140 amended March 26, 2004, effective July 1, 2004, 34 Pa.B. 1929; amended March 1, 2012, effective July 1, 2012, 42 Pa.B. 1364; amended May 7, 2014, effective immediately, 44 Pa.B. 3056; amended January 2, 2018, effective April 1, 2018, 48 Pa.B. 490. Immediately preceeding text appears at serial pages (360830) and (372105) to (372110).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 141 Appeals from Contempt Adjudications by Magisterial District Judges and Pittsburgh Magistrates Court Judges. {#sec-rule-141 omnilex-key=us-pa-regs-official--title-234--Rule 141}

(A) An appeal authorized by 42 Pa.C.S. § § 4137(d) and 4138(d) of the action of an issuing authority in a contempt proceeding shall be perfected by filing a notice of appeal within 30 days after the action of the issuing authority with the clerk of courts and by appearing in the court of common pleas for the de novo hearing.

(B) In all cases, the punishment imposed for contempt shall be stayed for 30 days from the imposition of the punishment. If an appeal is filed within the 30-day period, the stay shall remain in effect pending disposition of the appeal.

(C) The notice of appeal shall contain the following information:

(1) the name and address of the appellant;

(2) the name and address of the issuing authority who heard the case;

(3) the magisterial district number where the case was heard;

(4) the date of the imposition of punishment;

(5) the punishment imposed;

(6) the type or amount of bail furnished to the issuing authority, if any; and

(7) the name and address of the attorney, if any, filing the notice of appeal.

(D) Within 5 days after the filing of the notice of appeal, the clerk of courts shall serve a copy either personally or by mail upon the issuing authority.

(E) The issuing authority shall, within 20 days after receipt of the notice of appeal, file with the clerk of courts:

(1) the transcript of the proceedings;

(2) either the notice of the hearing or a copy of the attachment;

(3) the contempt order; and

(4) any bench warrant.

(F) Upon the filing of the transcript and other papers by the issuing authority, the case shall be heard de novo by the appropriate division of the court of common pleas as the president judge shall direct.

(1) If the judge assigned to hear the matter finds contempt and imposes punishment, the case shall remain in the court of common pleas for execution of any punishment, including the collection of any fines or costs.

(2) If the appellant fails to appear for the de novo hearing, the judge may dismiss the appeal and enter judgment in the court of common pleas on the judgment of the issuing authority.

(3) If the appellant withdraws the appeal, the judge may dismiss the appeal and enter judgment in the court of common pleas on the judgment of the issuing authority.

This rule provides the procedures for taking an appeal from a finding of contempt by a magisterial district judge or a Pittsburgh Magistrates Court judge.

As used in this rule, ‘‘issuing authority’’ refers only to magisterial district judges and Pittsburgh Magistrates Court judges when acting within the scope of their contempt powers. See 42 Pa.C.S. § § 4137 and 4138.

By Orders dated November 29, 2004, 34 Pa.B. 6507 (December 11, 2004) and February 25, 2005, 35 Pa.B. 1662 (March 12, 2005), the Pennsylvania Supreme Court created an administrative judicial unit referred to as the Pittsburgh Municipal Court and assigned all matters within the jurisdiction of the Pittsburgh Magistrates Court to the Pittsburgh Municipal Court. As a result of these orders, the Pittsburgh Magistrates Court is no longer staffed while the Pittsburgh Municipal Court is staffed by Allegheny County magisterial district judges assigned on a rotating basis. The terminology is retained in these rules because the Pittsburgh Magistrates Court, which is created by statute, has not been disestablished by the statute.

This rule was amended in 2018 to remove references to Philadelphia Traffic Court judges after that Court was abolished by an amendment to Article 5, Section 6, of the Pennsylvania Constitution.

As the Pennsylvania Supreme Court stated in Commonwealth v. McMullen, 961 A.2d 842 (Pa. 2008), legislative limitations on a court’s power to sentence for contempt are unconstitutional.

Pursuant to paragraph (B), any punishment imposed for contempt will be automatically stayed for 30 days from the date of the imposition of the punishment, during which time a notice of appeal may be filed with the clerk of courts. To the extent that 42 Pa.C.S. § § 4137(d) and 4138(d) are inconsistent with this rule, they are suspended by Rule 1101 (Suspension of Acts of Assembly).

If no notice of appeal is filed within the 30-day period following imposition of the punishment, Rule 140 requires the issuing authority to direct the contemnor on a date certain to pay any fine imposed or to appear for execution of any punishment of imprisonment.

See 42 Pa.C.S. § 4137(e) concerning the imposition of bail as a condition of release by a magisterial district judge.

The procedures set forth in Rule 462 (Trial De Novo) for a trial de novo on a summary case should be followed when a contempt adjudication is appealed to the common pleas court.

No defendant may be sentenced to imprisonment if the right to counsel was not afforded at the de novo contempt hearing See Alabama v. Shelton, 535 U. S. 654 (2002), Scott v. Illinois, 440 U. S. 367 (1979), and Argersinger v. Hamlin, 407 U. S. 25 (1972).

Paragraph (F) makes it clear that the judge assigned to conduct the de novo hearing may dismiss an appeal of the action of an issuing authority in a contempt proceeding when the judge determines that the appellant is absent without cause from the de novo hearing. If the appeal is dismissed, the judge should enter judgment and order execution of any punishment imposed by the issuing authority.

Once punishment for a contempt adjudication is imposed, paragraph (F)(1) makes it clear that the case is to remain in the court of common pleas for execution of the sentence and collection of any fine and costs, and the case may not be returned to the issuing authority.

Official Note

Rule 31 adopted October 1, 1997, effective October 1, 1998; renumbered Rule 141 and Comment revised March 1, 2000, effective April 1, 2001; amended February 28, 2003, effective July 1, 2003; Comment revised March 26, 2004, effective July 1, 2004; amended March 1, 2012, effective July 1, 2012; Comment revised May 7, 2014, effective immediately; amended January 2, 2018, effective April 1, 2018.

Committee Explanatory Reports:

Final Report explaining the provisions of new Rule 31 published with the Court’s Order at 27 Pa.B. 5405 (October 18, 1997).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the February 28, 2003 amendments concerning contempt appeals published with the Court’s Order at 33 Pa.B. 1326 (March 15, 2003).

Final Report explaining the March 26, 2004 Comment revision concerning right to counsel published with the Court’s Order at 34 Pa.B. 1931 (April 10, 2004).

Final Report explaining the March 1, 2012 amendments regarding limitations on punishment for contempt published with the Court’s Order at 42 Pa.B. 1367 (March 17, 2012).

Final Report explaining the May 7, 2014 Comment revision concerning the transfer of the Philadelphia Traffic Court functions to the Philadelphia Municipal Court published with the Court’s Order at 44 Pa.B. 3065 (May 24, 2014).

Final Report explaining the January 2, 2018 amendment concerning the abolition of the Philadelphia Traffic Court published with the Court’s Order at 48 Pa.B. 495 (January 20, 2018).

The provisions of this Rule 141 amended February 28, 2003, effective July 1, 2003, 33 Pa.B. 1324; amended March 26, 2004, effective July 1, 2004, 34 Pa.B. 1929; amended March 1, 2012, effective July 1, 2012, 42 Pa.B. 1364; amended May 7, 2014, effective immediately, 44 Pa.B. 3056; amended January 2, 2018, effective April 1, 2018, 48 Pa.B. 490. Immediately preceding text appears at serial pages (372110) to (372112).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 142 Procedures Governing Defaults in Payment of Fine Imposed as Punishment for Contempt. {#sec-rule-142 omnilex-key=us-pa-regs-official--title-234--Rule 142}

(A) If a contemnor defaults on the payment of a fine imposed as punishment for contempt pursuant to Rule 140(A)(1) and (B)(3), the issuing authority shall notify the contemnor in person or by first class mail that within 10 days of the date on the default notice the contemnor must either:

(1) pay the amount due as ordered, or

(2) appear before the issuing authority to explain why the contemnor should not be imprisoned for nonpayment as provided by law, or a bench warrant for the contemnor’s arrest shall be issued.

(B) When the contemnor appears either in response to the paragraph (A)(2) notice or following an arrest with a warrant issued pursuant to paragraph (A), the issuing authority shall conduct a hearing to determine whether the contemnor is financially able to pay as ordered.

(1) Upon a determination that the defendant is financially able to pay as ordered, the issuing authority may impose imprisonment for nonpayment, as provided by law.

(2) Upon a determination that the contemnor is financially unable to pay as ordered, the issuing authority may order a schedule for installment payments.

(C) A contemnor may appeal an issuing authority’s determination pursuant to this rule by filing a notice of appeal within 30 days of the issuing authority’s order. The appeal shall proceed as provided in Rule 141.

This rule provides the procedures governing defaults in the payment of fines imposed as punishment for contempt in proceedings before magisterial district judges and Pittsburgh Magistrates Court judges. See Rule 140(A)(1) and (B)(3).

As used in this rule, ‘‘issuing authority’’ refers only to magisterial district judges and Pittsburgh Magistrates Court judges when acting within the scope of their contempt powers. See 42 Pa.C.S. § § 4137 and 4138.

By Orders dated November 29, 2004, 34 Pa.B. 6507 (December 11, 2004) and February 25, 2005, 35 Pa.B. 1662 (March 12, 2005), the Pennsylvania Supreme Court created an administrative judicial unit referred to as the Pittsburgh Municipal Court and assigned all matters within the jurisdiction of the Pittsburgh Magistrates Court to the Pittsburgh Municipal Court. As a result of these orders, the Pittsburgh Magistrates Court is no longer staffed while the Pittsburgh Municipal Court is staffed by Allegheny County magisterial district judges assigned on a rotating basis. The terminology is retained in these rules because the Pittsburgh Magistrates Court, which is created by statute, has not been disestablished by the statute.

This rule was amended in 2018 to remove references to Philadelphia Traffic Court judges after that Court was abolished by an amendment to Article 5, Section 6, of the Pennsylvania Constitution.

For contempt procedures generally, see Rule 140.

As the Pennsylvania Supreme Court stated in Commonwealth v. McMullen, 961 A.2d 842 (Pa. 2008), legislative limitations on a court’s power to sentence for contempt are unconstitutional.

When a contemnor defaults on a payment of a fine, paragraph (A) requires the issuing authority to notify the contemnor of the default, and to provide the contemnor with an opportunity to either pay the amount due or appear within a 10-day period to explain why the contemnor should not be imprisoned for nonpayment. If the contemnor fails to pay or appear, the issuing authority must issue a bench warrant for the arrest of the contemnor.

If the hearing on the default cannot be held immediately, the issuing authority may set bail as provided in Chapter 5 Part C.

This rule contemplates that when there has been an appeal pursuant to paragraph (C), the case would return to the issuing authority who presided at the default hearing for completion of the collection process.

Official Note

Rule 32 adopted October 1, 1997, effective October 1, 1998; renumbered Rule 142 and amended March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004; amended March 1, 2012, effective July 1, 2012; Comment revised May 7, 2014, effective immediately; amended January 2, 2018, effective April 1, 2018.

Committee Explanatory Reports:

Final Report explaining the provisions of new Rule 32 published with the Court’s Order at 27 Pa.B. 5405 (October 18, 1997).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 3, 2004 rule changes deleting ‘‘show cause’’ published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

Final Report explaining the March 1, 2012 rule changes regarding limitations on punishment for contempt published with the Court’s Order at 42 Pa.B. 1367 (March 17, 2012).

Final Report explaining the May 7, 2014 Comment revision concerning the transfer of the Philadelphia Traffic Court functions to the Philadelphia Municipal Court published with the Court’s Order at 44 Pa.B. 3065 (May 24, 2014).

Final Report explaining the January 2, 2018 amendment concerning the abolition of the Philadelphia Traffic Court published with the Court’s Order at 48 Pa.B. 495 (January 20, 2018).

The provisions of this Rule 142 amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended March 1, 2012, effective July 1, 2012, 42 Pa.B. 1364; amended May 7, 2014, effective immediately, 44 Pa.B. 3056; amended January 2, 2018, effective April 1, 2018, 48 Pa.B. 490. Immediately preceeding text appears at serial pages (372112) to (372114).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 150 Bench Warrants. {#sec-rule-150 omnilex-key=us-pa-regs-official--title-234--Rule 150}

(A) In a court case when a bench warrant is executed, the case is to proceed in accordance with the following procedures.

(1) When a defendant or witness is arrested pursuant to a bench warrant, he or she shall be taken without unnecessary delay for a hearing on the bench warrant. The hearing shall be conducted by the judicial officer who issued the bench warrant, or, another judicial officer designated by the president judge or by the president judge’s designee to conduct bench warrant hearings.

(2) In the discretion of the judicial officer, the bench warrant hearing may be conducted using two-way simultaneous audio-visual communication.

(3) When the individual is arrested in the county of issuance, if the bench warrant hearing cannot be conducted promptly after the arrest, the defendant or witness shall be lodged in the county jail pending the hearing. The authority in charge of the county jail promptly shall notify the court that the individual is being held pursuant to the bench warrant.

(4) When the individual is arrested outside the county of issuance, the authority in charge of the county jail promptly shall notify the proper authorities in the county of issuance that the individual is being held pursuant to the bench warrant.

(5) The bench warrant hearing shall be conducted without unnecessary delay after the individual is lodged in the jail of the county of issuance on that bench warrant.

(a) When the bench warrant is issued by the supervising judge of a ‘‘multi-county’’ investigating grand jury, the individual shall be detained only until the supervising judge is available to conduct the bench warrant hearing.

(b) In all other cases, the individual shall not be detained without a bench warrant hearing on that bench warrant longer than 72 hours, or the close of the next business day if the 72 hours expires on a non-business day.

(6) At the conclusion of the bench warrant hearing following the disposition of the matter, the judicial officer immediately shall vacate the bench warrant.

(7) If a bench warrant hearing is not held within the time limits in paragraph (A)(5)(b), the bench warrant shall expire by operation of law.

(B) As used in this rule, ‘‘judicial officer’’ is limited to the magisterial district judge or common pleas court judge who issued the bench warrant, or the magisterial district judge or common pleas court judge designated by the president judge or by the president judge’s designee to conduct bench warrant hearings, or in Philadelphia, trial commissioners and Philadelphia Municipal Court judges.

This rule addresses only the procedures to be followed after a bench warrant is executed, and does not apply to execution of bench warrants outside the Commonwealth, which are governed by the extradition procedures in 42 Pa.C.S. § 9101 et seq., or to warrants issued in connection with probation or parole proceedings.

For the bench warrant procedures when a witness is under the age of 18 years, see Rule 151.

Paragraph (A)(2) permits the bench warrant hearing to be conducted using two-way simultaneous audio-visual communication, which is a form of advanced communication technology. See Rule 103. Utilizing this technology will aid the court in complying with this rule, and in ensuring individuals arrested on bench warrants are not detained unnecessarily.

Once a bench warrant is executed and the defendant is taken into custody, the bench warrant no longer is valid.

To ensure compliance with the prompt bench warrant hearing requirement, the president judge or the president judge’s designee may designate only a magisterial district judge to cover for magisterial district judges or a common pleas court judge to cover for common pleas court judges. See also Rule 132 for the temporary assignment of magisterial district judges. In Philadelphia, the current practice of designating trial commissioners and Philadelphia Municipal Court judges to conduct bench warrant hearings is acknowledged in paragraph (B).

It is expected that the practices in some judicial districts of a common pleas court judge (1) indicating on a bench warrant the judge has issued that the bench warrant is a ‘‘judge only’’ bench warrant, or (2) who knows he or she will be unavailable asking another common pleas court judge to handle his or her cases during the common pleas court judge’s absence, would continue.

Paragraph (A)(5)(a) recognizes the procedural and substantive differences between ‘‘multi-county’’ investigating grand jury proceedings and all other proceedings in the court of common pleas, including a county investigating grand jury, by eliminating the time limit for conducting the bench warrant hearing when the bench warrant is issued by the multi-county investigating grand jury supervising judge. See Rules 240—244 and 42 Pa.C.S. § 4544. When the supervising judge issues a bench warrant, the bench warrant hearing must be conducted expeditiously when the supervising judge is available.

Paragraph (A)(6) requires the judicial officer to vacate the bench warrant at the conclusion of the bench warrant hearing. The current practice in some judicial districts of having the clerk of courts cancel the bench warrant upon receipt of a return of service is consistent with this paragraph, as long as the clerk of courts promptly provides notice of the return of service to the issuing judge.

It is incumbent upon the president judge or the president judge’s designee to establish procedures for the monitoring of the time individuals are detained pending their bench warrant hearing.

For the procedures concerning violation of the conditions of bail, see Chapter 5 Part C.

As used in this rule, ‘‘court’’ includes magisterial district judge courts.

For the bench warrant procedures in summary cases, see Rules 430(B) and 431(C).

For procedures for the detention of witnesses, see Rule 522.

For the arrest warrants that initiate proceedings in court cases, see Chapter 5, Part B(3)(a), Rules 513, 514, 515, 516, 517, and 518. For the arrest warrants that initiate proceedings in summary cases, see Chapter 4, Part D(1), Rules 430(A) and 431(B).

Official Note

Adopted December 30, 2005, effective August 1, 2006; Comment revised October 24, 2013, effective January 1, 2014; amended December 7, 2018, effective April 1, 2019.

Committee Explanatory Reports:

Final Report explaining new Rule 150 providing procedures for bench warrants published with the Court’s Order at 36 Pa.B. 184 (January 14, 2006).

Final Report explaining the October 24, 2013 Comment revision adding a cross-reference to new Rule 151 published with the Court’s Order at 43 Pa.B. 6655 (November 9, 2013).

Final Report explaining the December 7, 2018 amendment regarding procedures for the detention of witnesses pursuant to Rule 522 published with the Court’s Order at 48 Pa.B. 7749 (December 22, 2018).

The provisions of this Rule 150 adopted December 30, 2005, effective August 1, 2006, 36 Pa.B. 181; amended October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (390242), (372115) and (369629).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

234 Pa. Code Rule 151 Bench Warrant Procedures When Witness is Under Age of 18 Years. {#sec-rule-151 omnilex-key=us-pa-regs-official--title-234--Rule 151}

(A) In a court case when a bench warrant for a witness under the age of 18 years is executed, except as provided in this rule, the case is to proceed in accordance with the procedures in Rule 150.

(B) Upon execution of the warrant for a minor witness, the arresting officer immediately shall inform the proper judicial officer and a parent or guardian of the minor witness of the arrest of the minor witness.

(C) Execution of Bench Warrant in County of Issuance

(1) If the judicial officer who issued the bench warrant, or another judicial officer designated by the president judge or by the president judge’s designee, is not available to conduct the bench warrant hearing without unnecessary delay, the minor witness shall be taken before the on-call judge of the court of common pleas.

(a) The on-call judge shall determine whether to release the witness or to detain the witness pending the bench warrant hearing. If the bench warrant specifically orders detention of the minor witness, the on-call judge shall not release the witness.

(b) If the on-call judge determines the witness must be detained, the witness shall be detained in a detention facility. The on-call judge shall notify the parent or guardian of the minor witness of the detention.

(2) The minor witness shall not be detained without a bench warrant hearing on that bench warrant longer than 24 hours, or the close of the next business day if the 24 hours expires on a non-business day.

(D) Execution of Bench Warrant Outside County of Issuance

(1) The minor witness shall be taken before a common pleas court judge of the county of arrest without unnecessary delay and in no case later than the end of the next business day.

(2) The judge shall identify the minor witness as the subject of the bench warrant, decide whether detention as a minor witness is necessary, and order that arrangements be made immediately to transport the minor witness to the county of issuance.

(3) If transportation cannot be arranged immediately, the minor witness shall be released unless the bench warrant specifically orders detention of the witness. In this case, the minor witness shall be detained in an out-of-county detention facility.

(4) If detention is ordered, the minor witness shall be brought to the county of issuance within 72 hours from the execution of the bench warrant.

(5) If the time requirements of this paragraph are not met, the minor witness shall be released.

This rule was adopted in 2013 to establish the procedures when a witness subject to a bench warrant is under the age of 18. The procedures following the execution of a bench warrant set forth in Rule 150 apply to cases when the witness is under the age of 18, except as otherwise provided in this rule.

Paragraph (B) ensures that the judicial officer who issued the bench warrant is aware that the minor witness has been arrested, and that a parent or guardian of the arrested minor witness is notified of the arrest.

The procedures in paragraph (C) for cases in which the bench warrant is executed in the county of issuance, recognize the need, when the issuing judicial officer is unavailable, to conduct the bench warrant hearing, for the common pleas court judge who is on call to determine whether a minor witness may be released or must be detained. If the minor witness is detained, the bench warrant hearing must be held no later than the end of the next business day. If the bench warrant hearing is not conducted within this time period, the minor witness must be released.

The minor witness may not be detained in an adult facility pending a bench warrant hearing.

In cases in which the bench warrant is executed outside the county of issuance, the minor witness must be transported to the county of issuance within 72 hours of the execution of the bench warrant, and the bench warrant hearing must be conducted by the end of the next business day.

As used in this rule, ‘‘minor witness’’ means a witness who is under the age of 18 years, and ‘‘proper judicial officer’’ means the judicial officer who issued the bench warrant, or, another judicial officer designated by the president judge or by the president judge’s designee.

When a witness under the age of 18 years is to be detained pursuant to Rule 522, the procedures in this rule are applicable.

Official Note

Adopted October 24, 2013, effective January 1, 2014; Comment revised December 7, 2018, effective April 1, 2019.

Committee Explanatory Reports:

Final Report explaining the October 24, 2013 adoption of new Rule 151 providing procedures for bench warrants when a witness is under the age of 18 published with the Court’s Order at 43 Pa.B. 6655 (November 9, 2013).

Final Report explaining the December 7, 2018 Comment revision regarding procedures for the detention of witnesses pursuant to Rule 522 published with the Court’s Order at 48 Pa.B. 7749 (December 22, 2018).

The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

History

• Source: The provisions of this Rule 151 adopted October 24, 2013, effective January 1, 2014, 43 Pa.B. 6654; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (369630) to (369631).

Chapter 2 INVESTIGATIONS

234 Pa. Code Rule 200 Who May Issue. {#sec-rule-200 omnilex-key=us-pa-regs-official--title-234--Rule 200}

A search warrant may be issued by any issuing authority within the judicial district wherein is located either the person or place to be searched.

This rule formally authorizes magisterial district judges, Philadelphia bail commissioners, and judges of the Municipal, Common Pleas, Commonwealth, Superior, and Supreme Courts to issue search warrants. This is not a departure from existing practice. See, e.g., Sections 1123(a)(5) and 1515(a)(4) of the Judicial Code, 42 Pa.C.S. § § 1123(a)(5), 1515(a)(4). See also the Rules of Juvenile Court Procedure, Rule 105 (Search Warrants). Any judicial officer who is authorized to issue a search warrant and who issues a warrant is considered an ‘‘issuing authority’’ for purposes of this rule. The authority of a magisterial district judge to issue a search warrant outside of the magisterial district but within the judicial district is recognized in Commonwealth v. Ryan, 400 A.2d 1264 (Pa. 1979).

Only common pleas court judges and appellate court justices and judges may issue search warrants when the supporting affidavit(s) is to be sealed under Rule 211.

This rule is not intended to affect the traditional power of appellate court judges and justices to issue search warrants anywhere within the state.

Official Note

Prior Rules 2000 and 2001 were suspended by former Rule 323, effective February 3, 1969. Present Rule 2001 adopted March 28, 1973, effective 60 days hence; amended July 1, 1980, effective August 1, 1980; Comment revised September 3, 1993, effective January 1, 1994; renumbered Rule 200 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised April 1, 2005, effective October 1, 2005.

Committee Explanatory Reports:

Report explaining the September 3, 1993 Comment revisions published at 21 Pa.B. 3681 (August 17, 1991).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the April 1, 2005 Comment revision concerning Rule of Juvenile Court Procedure published with the Court’s Order at 35 Pa.B. 2213 (April 16, 2005).

The provisions of this Rule 200 amended April 1, 2005, effective October 1, 2005, 35 Pa.B. 2210. Immediately preceding text appears at serial page (264142).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 201 Purpose of Warrant. {#sec-rule-201 omnilex-key=us-pa-regs-official--title-234--Rule 201}

A search warrant may be issued to search for and to seize:

(a) contraband, the fruits of a crime, or things otherwise criminally possessed;

(b) property that is or has been used as the means of committing a criminal offense;

(c) property that constitutes evidence of the commission of a criminal offense; or

(d) a person for whom a bench or arrest warrant has been issued.

Concerning the provisions of subdivision (a) see United States v. Rabinowitz, 339 U.S. 56 (1950), overruled as to other points, Chimel v. California, 395 U.S. 752, 786 (1969). Also compare, Cooper v. California, 386 U.S. 58 (1967), with One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1964).

Warrants may not be issued unless the affidavit alleges a pre-existing crime. See United States ex. rel. Campbell v. Rundle, 327 F.2d 153, 161 (3rd Cir. 1964), followed sub nom. Commonwealth ex rel. Ensor v. Cummings, 207 A.2d 230 (Pa. 1965) and Commonwealth ex rel. Campbell v. Russell, 207 A.2d 232 (Pa. 1965).

Concerning the provisions of subdivision (c), see Warden v. Hayden, 387 U.S. 294 (1967).

Subdivision (d) clarifies that a person is a proper subject of a search warrant when the person is also the subject of a bench or arrest warrant. In such circumstances, the search warrant is to effectuate the arrest by permitting the search of a premises other than the residence of the subject of the bench or arrest warrant. The search warrant does not take the place of the underlying bench or arrest warrant.

The provisions of this Rule 201 amended May 2, 2024, effective October 1, 2024, 54 Pa.B. 2743. Immediately preceding text appears at serial pages (335388) and (389105).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 202 Approval of Search Warrant Applications by Attorney for the Commonwealth—Local Option. {#sec-rule-202 omnilex-key=us-pa-regs-official--title-234--Rule 202}

(A) The district attorney of any county may require that search warrant applications filed in the county have the approval of an attorney for the Commonwealth prior to filing.

(B) If the district attorney elects to proceed under paragraph (A), the district attorney shall file a certification with the court of common pleas, which certification shall specify the circumstances in which search warrant applications shall require prior approval and shall also specify the date such procedure is to become effective. The court of common pleas shall thereupon promulgate a local rule in the following form, setting forth the circumstances specified in the certification:

RULE

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 203 Requirements for issuance. {#sec-rule-203 omnilex-key=us-pa-regs-official--title-234--Rule 203}

(A) In the discretion of the issuing authority, advanced communication technology may be used to submit a search warrant application and affidavit(s) and to issue a search warrant.

(B) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority in person or using advanced communication technology. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.

(C) Immediately prior to submitting a search warrant application and affidavit to an issuing authority using advanced communication technology, the affiant must personally communicate with the issuing authority in person, by telephone, or by any device which allows for simultaneous audio-visual communication. During the communication, the issuing authority shall verify the identity of the affiant, and orally administer an oath to the affiant. In any telephonic communication, if the issuing authority has a concern regarding the identity of the affiant, the issuing authority may require the affiant to communicate by a device allowing for two-way simultaneous audio-visual communication or may require the affiant to appear in person.

(D) At any hearing on a motion for the return or suppression of evidence, or for suppression of the fruits of evidence, obtained pursuant to a search warrant, no evidence shall be admissible to establish probable cause other than the affidavits provided for in paragraph (B).

(E) No search warrant shall authorize a nighttime search unless the affidavits show reasonable cause for such nighttime search.

(F) A search warrant may be issued in anticipation of a prospective event as long as the warrant is based upon an affidavit showing probable cause that at some future time, but not currently, certain evidence of a crime will be located at a specified place.

(G) When a search warrant is issued, the issuing authority shall provide the original search warrant to the affiant and the issuing authority shall retain a contemporaneously prepared copy.

Paragraph (A) recognizes that an issuing authority either may issue a search warrant using advanced communication technology or order that the law enforcement officer appear in person to apply for a search warrant.

Paragraph (B) does not preclude oral testimony before the issuing authority, but it requires that such testimony be reduced to an affidavit prior to issuance of a warrant. All affidavits in support of an application for a search warrant must be sworn to before the issuing authority prior to the issuance of the warrant. ‘‘Sworn’’ includes ‘‘affirmed.’’ See Rule 103. The language ‘‘sworn to before the issuing authority’’ contemplates, when advanced communication technology is used, that the affiant would not be in the physical presence of the issuing authority. See paragraph (C).

Paragraph (D) changes the procedure discussed in Commonwealth v. Crawley, 223 A.2d 885 (Pa. Super. 1966), aff’d per curiam, 247 A.2d 226 (Pa. 1968). See Commonwealth v. Milliken, 300 A.2d 78 (Pa. 1973).

The requirement in paragraph (E) of a showing of reasonable cause for a nighttime search highlights the traditional doctrine that nighttime intrusion into a citizen’s privacy requires greater justification than an intrusion during normal business hours.

An affiant seeking the issuance of a search warrant, when permitted by the issuing authority, may use advanced communication technology as defined in Rule 103.

When advanced communication technology is used, the issuing authority is required by this rule to (1) determine that the evidence contained in the affidavit(s) establishes probable cause, and (2) verify the identity of the affiant.

Verification methods include, but are not limited to, a ‘‘call back’’ system, in which the issuing authority would call the law enforcement agency or police department that the affiant indicates is the entity seeking the warrant; a ‘‘signature comparison’’ system whereby the issuing authority would keep a list of the signatures of the law enforcement officers whose departments have advanced communication technology systems in place, and compare the signature on the transmitted information with the signature on the list; or an established password system.

Paragraph (F) was added to the rule in 2005 to provide for anticipatory search warrants. The rule incorporates the definition of anticipatory search warrants set forth in Commonwealth v. Glass, 754 A.2d 655 (Pa. 2000).

Paragraph (G) was added to clarify who must retain possession of the original of the search warrant. When the search warrant is issued using advanced communication technology, the version delivered to the police officer is considered the original for purposes of this rule.

Official Note

Rule 2003 adopted March 28, 1973, effective for warrants issued 60 days hence; renumbered Rule 203 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended October 19, 2005, effective February 1, 2006; amended October 22, 2013, effective January 1, 2014; amended November 9, 2017, effective January 1, 2018.

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. 1478 (March 18, 2000).

Final Report explaining the May 10, 2002 amendments concerning advanced communication technology published with the Court’s Order at 32 Pa.B. 2591 (May 25, 2002).

Final Report explaining the October 19, 2005 amendments regarding anticipatory search warrants published with the Court’s Order at 35 Pa.B. 6088 (November 5, 2005).

Final Report explaining the October 22, 2013 amendments regarding the original search warrants published with the Court’s Order at 43 Pa.B. 6652 (November 9, 2013).

Final Report explaining the November 9, 2017 amendments regarding electronic technology for swearing affidavits published with the Court’s Order at 47 Pa.B. 7180 (November 25, 2017).

The provisions of this Rule 203 amended October 19, 2005, effective February 1, 2006, 35 Pa.B. 6087; amended October 22, 2013, effective January 1, 2014, 43 Pa.B. 6649; amended November 9, 2017, effective January 1, 2018, 47 Pa.B. 7177. Immediately preceding text appears at serial pages (369634) and (388179) to (388180).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 204 Person to Serve Warrant. {#sec-rule-204 omnilex-key=us-pa-regs-official--title-234--Rule 204}

A search warrant shall be served by a law enforcement officer.

No specific person need be designated in the warrant. However, only a law enforcement officer can properly serve a search warrant.

For the requirements when a law enforcement officer executes a search warrant beyond the territorial limits of the officer’s primary jurisdiction, see Section 8953 of the Judicial Code, 42 Pa.C.S. § 8953. See also Commonwealth v. Mason, 490 A.2d 421 (Pa. 1985).

Official Note

Rule 2004 adopted March 28, 1973, effective 60 days hence; Comment revised August 9, 1994, effective January 1, 1995 ; renumbered Rule 204 and Comment revised March 1, 2000, effective April 1, 2001.

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).

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).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 205 Contents of Search Warrant. {#sec-rule-205 omnilex-key=us-pa-regs-official--title-234--Rule 205}

(a) Each search warrant shall be signed by the issuing authority and shall:

(1) specify the date and time of issuance;

(2) identify specifically the property or person to be seized;

(3) name or describe with particularity the person or place to be searched;

(4) direct that the search be executed either;

(i) within a specified period of time, not to exceed 2 days from the time of issuance, or;

(ii) when the warrant is issued for a prospective event, only after the specified event has occurred;

(5) direct that the warrant be served in the daytime unless otherwise authorized on the warrant, provided that, for purposes of the rules of Chapter 200, Part A, the term ‘‘daytime’’ shall be used to mean the hours of 6 a.m. to 10 p.m.;

(6) designate by title the judicial officer to whom the warrant shall be returned;

(7) certify that the issuing authority has found probable cause based upon the facts sworn to or affirmed before the issuing authority by written affidavit attached to the warrant; and

(8) when applicable, certify on the face of the warrant that for good cause shown the affidavit is sealed pursuant to Rule 211 and state the length of time the affidavit will be sealed.

(b) A warrant under subdivision (a) may authorize the seizure of electronic storage media or of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in subdivision (a)(4)(i) refers to the seizure of the media or information, and not to any later off-site copying or review.

Subdivisions (a)(2) and (a)(3) are intended to proscribe general or exploratory searches by requiring that searches be directed only towards the specific items, persons, or places set forth in the warrant. Such warrants should, however, be read in a common sense fashion and should not be invalidated by hypertechnical interpretations. This may mean, for instance, that when an exact description of a particular item is not possible, a generic description may suffice. See Commonwealth v. Matthews, 285 A.2d 510, 513-14 (Pa. 1971).

Subdivision (a)(2) reflects the provision of Rule 201(d) that provides that a person may be the subject of a search warrant when the person is also the subject of a bench or arrest warrant. In such circumstances, the search warrant is to effectuate the arrest by permitting the search of a premises other than the residence of the subject of the bench or arrest warrant. The search warrant does not take the place of the underlying bench or arrest warrant.

Subdivision (a)(4) is included pursuant to the Court’s supervisory powers over judicial procedure to supplement Commonwealth v. McCants, 299 A.2d 283 (Pa. 1973), holding that an unreasonable delay between the issuance and service of a search warrant jeopardizes its validity. Subdivision (a)(4) sets an outer limit on reasonableness. A warrant could, in a particular case, grow stale in less than two days. If the issuing authority believes that only a particular period which is less than two days is reasonable, he or she must specify such period in the warrant.

Subdivision (a)(4)(ii) provides for anticipatory search warrants. These types of warrants are defined in Commonwealth v. Glass, 754 A.2d 655 (Pa. 2000), as ‘‘a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.’’

Subdivision (a)(5) supplements the requirement of Rule 203(E) that special reasonable cause must be shown to justify a nighttime search. A warrant allowing a nighttime search may also be served in the daytime.

Subdivision (a)(6) anticipates that the warrant will list the correct judicial officer to whom the warrant should be returned. There may be some instances in which the judicial officer who issues the warrant may not be the one to whom the warrant will be returned. For example, it is a common practice in many judicial districts to have an ‘‘on-call’’ magisterial district judge. This ‘‘on-call’’ judge would have the authority to issue search warrants anywhere in the judicial district but may not be assigned to the area in which the search warrant would be executed. There may be cases when the warrant is incorrectly returned to the judge who originally issued the warrant. In such cases, the issuing judge should forward the returned search warrant to the correct judicial officer. Thereafter, that judicial officer should administer the search warrant and supporting documents as provided for in these rules, including the Rule 210 requirement to file the search warrant and supporting documents with the clerk of courts.

Subdivision (a)(8) implements the notice requirement in Rule 211(C). When the affidavit is sealed pursuant to Rule 211, the justice or judge issuing the warrant must certify on the face of the warrant that there is good cause shown for sealing the affidavit and must also state how long the affidavit will be sealed.

For purposes of this rule, the term ‘‘electronically stored information’’ includes writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained. This definition is intended to cover all current types of computer-based information and to encompass future changes and developments.

For purposes of this rule, the term ‘‘seizure’’ includes the copying of material or information that is subject to the search warrant. This includes the copying of electronically stored information for later analysis.

For the procedures for motions for return of property, see Rule 588.

The provisions of this Rule 205 amended October 19, 2005, effective February 1, 2006, 35 Pa.B. 6087; amended October 22, 2013, effective January 1, 2014, 43 Pa.B. 6649; amended July 31, 2017, effective October 1, 2017, 47 Pa.B. 4680; amended May 2, 2024, effective October 1, 2024, 54 Pa.B. 2743. Immediately preceding text appears at serial pages (389108) and (392741) to (392742).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 206 Contents of Application for Search Warrant. {#sec-rule-206 omnilex-key=us-pa-regs-official--title-234--Rule 206}

Each application for a search warrant shall be supported by a written affidavit signed and sworn to or affirmed before an issuing authority, which affidavit shall:

(a) state the name and department, agency, or address of the affiant;

(b) identify specifically the items, property, or person to be searched for and seized;

(c) name or describe with particularity the person or place to be searched;

(d) identify the owner, occupant, or possessor of the place to be searched;

(e) specify or describe the crime which has been or is being committed;

(f) set forth specifically the facts and circumstances which form the basis for the affiant’s conclusion that there is probable cause to believe that the items, property, or person identified are evidence or the fruit of a crime, or are contraband, or are expected to be otherwise unlawfully possessed or subject to seizure, and that these items or property are or are expected to be located on the particular person, or that these items, property, or persons are or are expected to be located at the particular place described;

(g) if a ‘‘nighttime’’ search is requested (i.e., 10 p.m. to 6 a.m.), state additional reasonable cause for seeking permission to search in nighttime;

(h) when the attorney for the Commonwealth is requesting that the affidavit(s) be sealed pursuant to Rule 211, state the facts and circumstances which are alleged to establish good cause for the sealing of the affidavit(s); and

(i) a certification that the application complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania regarding confidential information and documents.

For the contents of the search warrant, see Rule 205.

Subdivisions (b) and (f) reflect the provision of Rule 201(d) that provides that a person may be the subject of a search warrant when the person is also the subject of a bench or arrest warrant. In such circumstances, the search warrant is to effectuate the arrest by permitting the search of a premises other than the residence of the subject of the bench or arrest warrant. The search warrant does not take the place of the underlying bench or arrest warrant.

Subdivision (f) recognizes anticipatory search warrants. To satisfy the requirements of subdivision (f) when the warrant being requested is for a prospective event, the application for the search warrant also must include a statement explaining how the affiant knows that the items to be seized on a later occasion will be at the place specified. See Commonwealth v. Coleman, 830 A.2d 554 (Pa. 2003); Commonwealth v. Glass, 754 A.2d 655 (Pa. 2000).

When the attorney for the Commonwealth is requesting that the search warrant affidavit be sealed, the affidavit in support of the search warrant must set forth the facts and circumstances the attorney for the Commonwealth alleges establish that there is good cause to seal the affidavit. See also Pa.R.Crim.P. 211(B)(2). Pursuant to Rule 211(B)(1), when the attorney for the Commonwealth requests that the search warrant affidavit be sealed, the application for the search warrant must be made to a judge of the court of common pleas or to an appellate court justice or judge, who would be the issuing authority for purposes of this rule. For the procedures for sealing search warrant affidavit, see Rule 211.

See Rule 113.1 regarding the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania and the requirements regarding filings and documents that contain confidential information.

The provisions of this Rule 206 amended October 19, 2005, effective February 1, 2006, 35 Pa.B. 6087; amended June 1, 2018, effective July 1, 2018, 48 Pa.B. 3575; amended May 2, 2024, effective October 1, 2024, 54 Pa.B. 2743. Immediately preceding text appears at serial pages (392742) to (392743).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 207 Manner of Entry Into Premises. {#sec-rule-207 omnilex-key=us-pa-regs-official--title-234--Rule 207}

(A) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of the officer’s identity, authority, and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require the officer’s immediate forcible entry.

(B) Such officer shall await a response for a reasonable period of time after this announcement of identity, authority, and purpose, unless exigent circumstances require the officer’s immediate forcible entry.

(C) If the officer is not admitted after such reasonable period, the officer may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute the search.

See generally Commonwealth v. DeMichel, 277 A.2d 159 (Pa. 1971) with regard to paragraphs (A) and (B). Concerning paragraph (C), see Commonwealth v. Newman, 240 A.2d 795 (Pa. 1968).

Official Note

Rule 2007 adopted October 17, 1973, effective 60 days hence; renumbered Rule 207 and amended March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 208 Copy of Warrant; Receipt for Seized Property. {#sec-rule-208 omnilex-key=us-pa-regs-official--title-234--Rule 208}

(a) A law enforcement officer, upon taking property or person pursuant to a search warrant, shall leave with the person from whom or from whose premises the property or person was taken a copy of the warrant and affidavit in support thereof, and a receipt for the property seized. A copy of the warrant and affidavit must be left whether or not any property or person is seized.

(b) If no one is present on the premises when the warrant is executed, the officer shall leave the documents specified in subdivision (a) at a conspicuous location in the said premises. A copy of the warrant and affidavit must be left whether or not any property or person is seized.

(c) Notwithstanding the requirements in subdivisions (a) and (b), the officer shall not leave a copy of an affidavit that has been sealed pursuant to Rule 211.

Subdivisions (a) and (b) include the provision of Rule 201(d) that provides that a person may be the subject of a search warrant when the person is also the subject of a bench or arrest warrant. In such circumstances, the search warrant is to effectuate the arrest by permitting the search of a premises other than the residence of the subject of the bench or arrest warrant. The search warrant does not take the place of the underlying bench or arrest warrant.

The provisions of this Rule 208 amended May 2, 2024, effective October 1, 2024, 54 Pa.B. 2743. Immediately preceding text appears at serial page (392744).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 209 Return With Inventory. {#sec-rule-209 omnilex-key=us-pa-regs-official--title-234--Rule 209}

(A) The law enforcement officer executing the search warrant shall return the search warrant promptly after the search is completed, along with any inventory required under paragraph (C), to the issuing authority.

(B) Unexecuted warrants shall be returned promptly to the issuing authority once the period of time authorized for execution of the warrant has expired. The affiant shall retain a copy of the returned unexecuted search.

(C) An inventory of items seized shall be made by the law enforcement officer serving a search warrant. The inventory shall be made in the presence of the person from whose possession or premises the property was taken, when feasible, or otherwise in the presence of at least one witness. The officer shall sign a statement on the inventory that it is a true and correct listing of all items seized, and that the signer is subject to the penalties and provisions of 18 Pa.C.S. § 4904(b)—Unsworn Falsification To Authorities. The inventory shall be returned to and filed with the issuing authority.

(D) The judicial officer to whom the return was made shall, upon request, cause a copy of the inventory to be delivered to the applicant for the warrant and to the person from whom, or from whose premises, the property was taken.

(E) When the search warrant affidavit(s) is sealed pursuant to Rule 211, the return shall be made to the justice or judge who issued the warrant.

The inventory is required to ensure that all items seized are accounted for in the return to the issuing authority. It thus differs from the receipt required by Rule 208, which is for the personal records of those from whose possession or from whose premises property was taken. In some cases, however, the list in the receipt may be sufficiently detailed so as to also be sufficient for use in the inventory. The inventory need not be sworn to before the issuing authority; however, the officer is subject to statutory penalties for unsworn falsification.

The rule was amended in 2013 specifically to require that the executed warrant be returned to the issuing authority. This amendment reflects a procedure with a long-standing practice but one that had not been codified in the rules.

See Rule 205(a)(6) regarding the circumstances under which the issuing authority to whom the warrant is returned may differ from the one that issued the warrant.

As provided in Rule 205(a)(4), search warrants generally authorize execution within a period not to exceed two days. Paragraph (B) requires that an unexecuted warrant be returned to the issuing authority upon expiration of this period.

Unexecuted search warrants are not public records, see Rule 212(B), and therefore are not to be included in the criminal case file nor are they to be docketed.

For the obligation of the Commonwealth to disclose exculpatory evidence, see Rule 573 and its Comment.

Official Note

Rule 2009 adopted October 17, 1973, effective 60 days hence; amended April 26, 1979, effective July 1, 1979; amended September 3, 1993, effective January 1, 1994; renumbered Rule 209 and amended March 1, 2000, effective April 1, 2001; amended October 22, 2013, effective January 1, 2014; Comment revised July 31, 2017, effective October 1, 2017.

Committee Explanatory Reports:

Report explaining the September 3, 1993 amendments published at 21 Pa.B. 3681 (August 17, 1991).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the October 22, 2013 amendments related to the return of the search warrant published with the Court’s Order at 43 Pa.B. 6652 (November 9, 2013).

Final Report explaining the July 31, 2017 comment revisions correcting a cross-reference to Rule 205 published with the Court’s Order at 47 Pa.B. 4681 (August 12, 2017).

The provisions of this Rule 209 amended October 22, 2013, effective January 1, 2014, 43 Pa.B. 6649; amended July 31, 2017, effective October 1, 2017, 47 Pa.B. 4680; amended May 2, 2024, effective October 1, 2024, 54 Pa.B. 2743. Immediately preceding text appears at serial pages (392744) and (415771).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 210 Return of Papers to Clerk. {#sec-rule-210 omnilex-key=us-pa-regs-official--title-234--Rule 210}

The judicial officer to whom the warrant was returned shall file the search warrant, all supporting affidavits, and the inventory with the clerk of the court of common pleas of the judicial district in which the property was seized.

See Rule 211 for the procedures when the search warrant affidavit(s) has been sealed.

Unexecuted search warrants are not public records, see Rule 212(B), and therefore are not to be included in the criminal case file nor are they to be docketed.

Official Note

Rule 2010 adopted October 17, 1973, effective 60 days hence; amended September 3, 1993, effective January 1, 1994; renumbered Rule 210 and Comment revised March 1, 2000, effective April 1, 2001; amended October 22, 2013, effective January 1, 2014.

Committee Explanatory Reports:

Report explaining the September 3, 1993 amendments published at 21 Pa.B. 3681 (August 17, 1991).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the October 22, 2013 revisions to the Comment regarding unexecuted search warrants published with the Court’s Order at 43 Pa.B. 6652 (November 9, 2013).

The provisions of this Rule 210 amended October 22, 2013, effective January 1, 2014, 43 Pa.B. 6649. Immediately preceding text appears at serial page (264149).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 211 Sealing Search Warrant Affidavits. {#sec-rule-211 omnilex-key=us-pa-regs-official--title-234--Rule 211}

(A) At the request of the attorney for the Commonwealth, a search warrant affidavit may be sealed upon good cause shown.

(B) When the attorney for the Commonwealth intends to request that the search warrant affidavit(s) be sealed,

(1) the application for the search warrant shall be presented by the attorney for the Commonwealth to a judge of the court of common pleas or an appellate court justice or judge, and

(2) the affidavit(s) for the search warrant shall include the facts and circumstances which are alleged to establish good cause for the sealing of the search warrant affidavit(s).

(C) When the justice or judge issues the search warrant and seals the search warrant affidavit(s), he or she shall also certify on the face of the warrant that for good cause shown the affidavit(s) is sealed and shall state the length of time the affidavit(s) will be sealed.

(D) When the search warrant is issued, the sealed affidavit(s) shall be filed with the clerk of courts in the judicial district in which the search warrant is to be executed, unless otherwise ordered by the justice or judge.

(E) The affidavit shall be sealed for a period of not more than 60 days, unless the time period is extended as provided in paragraph (F) or paragraph (H).

(F) Upon motion of the attorney for the Commonwealth for good cause shown, the justice or judge who issued the search warrant may extend the period of time that the affidavit(s) will remain sealed. If the justice or judge is unavailable, another justice or judge shall be assigned to decide the motion.

(G) Upon motion for good cause shown, the justice or judge may grant an unlimited number of extensions of the time that the affidavit(s) shall remain sealed. Each extension shall be for a period of not more than 30 days.

(H) When criminal proceedings are instituted as a result of the search,

(1) A copy of the sealed affidavit(s) shall be given to the defendant at or before the preliminary hearing unless otherwise ordered as provided in paragraph (H)(2).

(2) Upon motion of the attorney for the Commonwealth, the justice or judge who issued the warrant, for good cause shown, may delay giving the defendant a copy of the sealed affidavit(s) for periods of not more than 30 days. In no case shall the delay extend beyond the date of the court arraignment.

(3) If the justice or judge is unavailable, another justice or judge shall be assigned to decide the motion.

(I) If the motion requesting any extension pursuant to paragraphs (F) or (H) is granted, the motion and any record of the hearing on the motion shall be sealed and transmitted with the extension order to the clerk of courts.

(J) When the order sealing the affidavit(s) and any extensions thereof expires, the clerk of courts shall make the affidavit(s) available for public inspection.

This rule establishes procedures for temporarily sealing the affidavit(s) supporting a search warrant. Ordinarily these procedures would be limited to cases in which an ongoing investigation using, for example, electronic surveillance (18 Pa.C.S. § 5701 et seq.) or an undercover agent, would be jeopardized by revealing the information necessary to support probable cause to obtain a search warrant. Therefore, when determining whether good cause exists to seal the affidavit(s), the justice or judge should consider, for example, whether revealing the information in the affidavit(s) would defeat an ongoing investigation or endanger an undercover agent or informant.

District justices, arraignment court magistrates, and municipal court judges do not have authority to seal an affidavit(s). In cases in which it is believed that there is good cause to seal the affidavit(s), the application for the search warrant must be presented to a judge of the court of common pleas or a justice or judge of an appellate court. See also Pa.R.Crim.P. 206(h).

When a search warrant affidavit(s) is to be sealed, the application and affidavit(s) should be prepared as separate documents, rather than on the preprinted search warrant form. See Rules 206 and 208.

Paragraph (C) requires that the justice or judge issuing the warrant certify on the face of the warrant that for good cause shown the affidavit(s) was sealed and state the length of time the affidavit will be sealed, thereby giving notice of the sealing to the person who was searched or whose premises were searched and the defendant, if any. See Rules 205 and 206.

Unless the justice or judge orders otherwise, paragraph (D) requires that when the search warrant is issued the sealed affidavit(s) must be filed with the clerk of courts in the judicial district in which the search is expected to be conducted. There may be cases in which the justice or judge might determine, for example, that it is better to retain the sealed affidavit(s) in his or her office until a later time, such as when the return is made, and would therefore not file the sealed affidavit(s) until after this occurs, or that the affidavit(s) should be filed with a clerk in a different judicial district.

When determining whether there is good cause to extend the time that the affidavit(s) is to remain sealed or the time before a copy of the affidavit(s) is given to the defendant, in addition to examining the Commonwealth’s or the defendant’s need to have the affidavit sealed, the justice or judge should consider any pertinent information about the case, such as whether any items were seized, whether there were any arrests, and whether any motions were filed. The justice or judge should also consider the defendant’s need to have the affidavit(s) to prepare his or her case, especially the right to file motions, including a motion to suppress or a motion for return of property (see, e.g., Rules 578, 579, 581, and 588).

Although the initial request to have the affidavit(s) sealed is made ex parte by the attorney for the Commonwealth as part of the search warrant application process, once the affidavit(s) is sealed and the warrant is executed, thereby giving the person who was searched or whose premises were searched and the defendant, if any, notice of the sealing, that person may, of course, request by motion that the affidavit(s) be made available to him or her, or that the order sealing the affidavit(s) be rescinded.

Paragraphs (F) and (G) provide the procedures for extending the time that the affidavit(s) is sealed, except in cases in which criminal proceedings are instituted as a result of the search. The attorney for the Commonwealth may request that the time period be extended, but each extension may not be for more than 30 days and may only be granted upon motion for good cause shown.

Once criminal proceedings are instituted as a result of the search, the defendant in the case has a need to have the information in the affidavit(s) to be able to prepare his or her case. Paragraph (H) requires that a copy of the sealed affidavit(s) be given to the defendant at or before the time of the preliminary hearing, unless the attorney for the Commonwealth establishes by motion that there is good cause to delay giving the defendant a copy.

When the justice or judge finds good cause to delay giving a copy of the sealed affidavit(s) to the defendant, the justice or judge, as provided in paragraph (G), may only grant an extension for up to 30 days, after which the attorney for the Commonwealth must request another extension. Under no circumstances may the time be extended beyond the time for arraignment.

When a sealed copy of the affidavit(s) has been given to the defendant, nothing in this rule is intended to preclude the attorney for the Commonwealth from requesting that the justice or judge issue a protective order to prevent or restrict the defendant from disclosing the contents of the affidavit. See Rule 573(F).

When the order sealing the affidavit(s) expires, the clerk of courts must make the affidavit(s) available for public inspection.

Official Note

Rule 2011 adopted September 3, 1993, effective January 1, 1994; renumbered Rule 211 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Report explaining the provisions of the new rule published at 21 Pa.B. 3681 (August 17, 1991).

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).

The provisions of this Rule 211 amended May 2, 2024, effective October 1, 2024, 54 Pa.B. 2743. Immediately preceding text appears at serial pages (415772) and (369643) to (369644).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 212 Dissemination of Search Warrant Information. {#sec-rule-212 omnilex-key=us-pa-regs-official--title-234--Rule 212}

(A) The issuing authority shall not make any search warrants and any affidavit(s) of probable cause available for public inspection or dissemination until the warrant has been executed.

(B) Unexecuted warrants and the associated affidavits of probable cause are not public records and upon return to the issuing authority the unexecuted warrants and affidavit(s) shall be destroyed by the issuing authority.

Execution of search warrants carries the potential risk of hazard and premature dissemination of the intention to execute a warrant may greatly increase that risk. For this reason, this rule was adopted in 2008 to delay the dissemination of search warrant information to the general public until after execution. This rule does not deny disclosure of any search warrant information to which the public is entitled, but rather, temporarily delays the dissemination of that information in order to protect public safety.

Once the warrant is executed, the information may be disseminated unless sealed pursuant to Rule 211.

The rule was amended in 2013 to clarify that unexecuted search warrants are not public records. This change recognizes that often search warrants may be issued that are never executed. This non-execution may arise from many factors, including a discovery that the information that formed the basis of the original issuance of the search warrant was inaccurate. Given the potential harm to the subject of a search warrant as well as potential disruption to public safety and investigations, information related to such expired warrants must remain confidential. See PG Publishing Co. v. Commonwealth, 532 Pa. 1, 614 A.2d 1106 (1992) (‘‘The ex parte application for the issuance of a search warrant and the issuing authority’s consideration of the application are not subject to public scrutiny. The need for secrecy will ordinarily expire once the search warrant has been executed.’’).

Official Note

Rule 212 adopted June 23, 2008, effective August 1, 2008; amended October 22, 2013, effective January 1, 2014.

Committee Explanatory Reports:

Final Report explaining new Rule 212 providing for the limitations in dissemination of search warrant information published with the Court’s Order at 38 Pa.B. 3651 (July 5, 2008).

Final Report explaining the October 22, 2013 amendment providing that expired unexecuted warrants are not public records published with the Court’s Order at 43 Pa.B. 6652 (November 9, 2013).

The provisions of this Rule 212 adopted June 23, 2008, effective August 1, 2008, 38 Pa.B. 3651; amended October 22, 2013, effective January 1, 2014, 43 Pa.B. 6649. Immediately preceding text appears at serial pages (335389) to (335390).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 220 Motion and Order for Investigating Grand Jury. {#sec-rule-220 omnilex-key=us-pa-regs-official--title-234--Rule 220}

A motion for an investigating grand jury shall be presented to the president judge of the judicial district or to such other judge as the president judge shall designate.

Official Note

Rule 251 adopted June 26, 1978, effective January 9, 1979; renumbered Rule 220 and amended March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 221 Summoning Investigating Grand Jury. {#sec-rule-221 omnilex-key=us-pa-regs-official--title-234--Rule 221}

(A) After issuing an order summoning an investigating grand jury, the court shall order the officials designated by law to summon prospective jurors to summon not less than 38 persons eligible by law to serve as grand jurors.

(B) The summons shall be made returnable on such date as is ordered by the court.

See 42 Pa.C.S. § § 4521—4524 for the Judicial Code provisions on the selection of prospective jurors.

The number of persons initially summoned for an investigating grand jury has been fixed at no less than 38 to accommodate the requirements for a maximum of 15 alternates as specified in Rule 222. See also 42 Pa.C.S. § 4545(a) (investigating grand jury shall have a minimum of 7 and not more than 15 alternates).

Official Note

Rule 252 adopted June 26, 1978, effective January 9, 1979; amended January 28, 1983, effective July 1, 1983; amended August 12, 1993, effective September 1, 1993; renumbered Rule 221 and amended March 1, 2000, effective April 1, 2001; amended October 17, 2002, effective January 1, 2003.

Committee Explanatory Reports:

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

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 October 17, 2002 amendments concerning the number of alternate grand juror published with the Court’s Order at 32 Pa.B. 5407 (November 2, 2002).

The provisions of this Rule 221 amended October 17, 2002, effective January 1, 2003, 32 Pa.B. 5406. Immediately preceding text appears at serial page (264152).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 222 Composition and Organization of the Investigating Grand Jury. {#sec-rule-222 omnilex-key=us-pa-regs-official--title-234--Rule 222}

(A) There shall be impaneled initially to serve on an investigating grand jury 23 legally qualified jurors and a minimum of 7 and not more than 15 legally qualified alternates. During its term, the investigating grand jury shall consist, as provided hereinafter, of not less than 15 nor more than 23 legally qualified jurors, and the remaining alternates.

(B) When an investigating grand jury is to be impaneled and more than 30 persons attend for service and qualify, the judge in charge of the grand jury shall excuse a sufficient number of persons to reduce the panel to not more than 23 persons plus the minimum of 7 but not more than 15 alternates. After prospective grand jurors have been excused for cause, the reduction to the minimum of 30 or maximum of 38 shall take place by random drawing in the following manner: 30 to 38 jurors shall be selected by random drawing, of which the first 23 jurors so selected shall be designated permanent grand jurors and the next 7 to 15 jurors shall be designated alternate jurors 1, 2, 3, and so on to a minimum of 15.

(C) Alternate jurors shall attend sessions of the grand jury but they may not participate in the preparation of any reports or presentments, nor in the deliberations and voting, until such time as they may be appointed as permanent grand jurors as provided in paragraph (D).

(D) The court shall have the power to permanently excuse a permanent or alternate grand juror for cause at any time during the term of the investigating grand jury. For each such excused permanent grand juror, the court shall appoint a new permanent grand juror from among the available alternates.

(E) Fifteen permanent members of the grand jury shall constitute a quorum, but an affirmative vote of 12 permanent members of the grand jury shall be required to adopt a report or issue a presentment.

(F) Whenever the number of permanent grand jurors, including alternates who have been appointed to replace permanent grand jurors, becomes less than 15, the term of the investigating grand jury shall be considered at an end.

(G) The court shall appoint one of the grand jurors as foreman. The grand jury shall select one of its members as a secretary to assist the foreman in keeping a record of the action of the grand jury.

The initial number of jurors impaneled should be at least 30, but no more than 38, to accommodate the minimum of 7 and maximum of 15 alternate jurors. See 42 Pa.C.S. § 4545(a) (investigating grand jury shall have a minimum of 7 and not more than 15 alternates).

The alternate jurors are impaneled with the permanent grand jurors and hear all testimony, but are excluded from taking part in or from being present at deliberations, votes, or preparation of presentments or reports.

If, prior to the impaneling of the investigating grand jury, the number of prospective grand jurors initially summoned falls below the minimum needed to seat permanent and alternate grand jurors by reason of excuses for cause, additional prospective grand jurors are to be summoned in the manner provided in these rules. See Rule 221. Any grand jurors already selected to serve on the investigating grand jury must remain.

The term ‘‘permanent grand juror’’ is used to distinguish grand jurors with the power to vote from alternate grand jurors. The purpose of providing a built-in system of alternates is to assure the smooth functioning of the grand jury throughout its term and to provide that alternates, when made permanent grand jurors, will be fully cognizant of all the proceedings before the grand jury. This provision provides the authority for substitution that was found lacking in Commonwealth v. Levinson, 389 A.2d 1062 (Pa. 1978).

It is intended that no alternate may be appointed as a temporary substitute for a permanent grand juror, and that the court will excuse permanent grand jurors only when necessary and in the interests of justice. However, whenever a permanent juror is excused for cause and an alternate is available to become a permanent grand juror, the court must substitute an alternate for the excused permanent grand juror. It is intended that such substitution be made in the order of the alternate jurors’ numerical designation.

Official Note

Rule 253 adopted June 26, 1978, effective January 9, 1979; amended October 22, 1981, effective January 1, 1982; amended August 12, 1993, effective September 1, 1993; renumbered Rule 222 and amended March 1, 2000, effective April 1, 2001; amended October 17, 2002, effective January 1, 2003.

Committee Explanatory Reports:

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

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 October 17, 2002 amendments concerning the number of alternate grand jurors published with the Court’s Order at 32 Pa.B. 5407 (November 2, 2002).

The provisions of this Rule 222 amended October 17, 2002, effective January 1, 2003, 32 Pa.B. 5406. Immediately preceding text appears at serial pages (264152) to (264156).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 223 Administering Oath of Stenographer. {#sec-rule-223 omnilex-key=us-pa-regs-official--title-234--Rule 223}

In addition to the oath specified in Rule 224, stenographers who record the proceedings before the investigating grand jury shall, before commencing their duties, be sworn by the court to faithfully report the proceedings.

Official Note

Rule 255 adopted June 26, 1978, effective January 9, 1979; renumbered Rule 223 and amended March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 224 Administering Oath of Court Personnel. {#sec-rule-224 omnilex-key=us-pa-regs-official--title-234--Rule 224}

All court personnel who are to be present during any portion of the grand jury proceedings, and all others who assist in the proceedings, shall be sworn to secrecy by the court prior to their participation.

Official Note

Rule 256 adopted June 26, 1978, effective January 9, 1979; renumbered Rule 224 March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 225 Administering Oath to Grand Jury and Foreman. {#sec-rule-225 omnilex-key=us-pa-regs-official--title-234--Rule 225}

(A) After the selection of the members of the investigating grand jury, the court shall administer the oath to the grand jury and then separately to the foreman.

(B) The court shall administer the oath to the investigating grand jury in substantially the following form:

‘‘You, as grand jurors, do solemnly swear that your will make diligent inquiry with regard to all matters brought before you as well as such things as may come to your knowledge in the course of your duties; that you will keep secret all that transpires in the jury room, except as authorized by law; that you will not present any person for hatred, envy, or malice, or refuse to present any person for love, fear, favor, or any reward or hope thereof; and that you will present all things truly to the court as they come to your knowledge and understanding.’’

(C) The court shall administer the oath to the foreman in substantially the following form:

‘‘You, as foreman, do solemnly swear that you will make diligent inquiry with regard to all matters as shall be given you in charge; that you will keep secret all that transpires in the jury room, except as authorized by law; that you will not present any person for hatred, envy, or malice, or refuse to present any person for love, fear, favor, or any reward or hope thereof; and that you will present all things truly to the court as they come to your knowledge and understanding.’’

It is intended that all grand jurors, including the alternate grand jurors, will be sworn at this time.

Official Note

Rule 257 adopted June 26, 1978, effective January 9, 1979; amended October 22, 1981, effective January 1, 1982; renumbered Rule 225 and amended March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 226 Charge to Investigating Grand Jury. {#sec-rule-226 omnilex-key=us-pa-regs-official--title-234--Rule 226}

After the investigating grand jury is sworn, the court shall charge the grand jury in open court.

The charge of the court to the grand jury should define the duties of the grand jurors. However, section (7)(c) of The Investigating Grand Jury Act, 42 Pa.C.S. § § 4541—4553, provides that: ‘‘The jurisdiction, powers and activities of an investigating grand jury shall not, of otherwise lawful, be limited in any way by the charge of the court.’’

Official Note

Rule 258 adopted June 26, 1978, effective January 9, 1979; Comment revised October 22, 1981, effective January 1, 1982; renumbered Rule 226 and Comment revised March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 227 Administering Oath to Witness. {#sec-rule-227 omnilex-key=us-pa-regs-official--title-234--Rule 227}

Each witness to be heard by the investigating grand jury shall be sworn before testifying. The witness may elect to be sworn in camera or in open court.

Should the witness fail to exercise any election, it is intended that the court will determine whether the witness is to be sworn in camera or in open court.

When it is necessary to give constitutional warnings to a witness, the warnings and the oath must be administered by the court. As to warnings that the court may have to give to the witness when the witness is sworn, see, e.g., Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764 (Pa. 1971).

Official Note

Rule 259 adopted June 26, 1978, effective January 9, 1979; renumbered Rule 227 and Comment revised March 1, 2000, effective April 1, 2001; amended September 30, 2005, effective February 1, 2006.

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. 1478 (March 18, 2000).

Final Report explaining the September 30, 2005 amendments concerning administration of the oath published with the Court’s Order at 35 Pa.B. 5679 (October 15, 2005).

The provisions of this Rule 227 amended September 30, 2005, effective February 1, 2006, 35 Pa.B. 5678. Immediately preceding text appears at serial pages (264155) to (264156).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 228 Recording of Proceedings Before Investigating Grand Jury. {#sec-rule-228 omnilex-key=us-pa-regs-official--title-234--Rule 228}

Proceedings before an investigating grand jury, other than the deliberations and voting of the grand jury, shall be stenographically recorded and a transcript made.

Official Note

Rule 260 adopted June 26, 1978, effective January 9, 1979; renumbered Rule 228 March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 229 Control of Investigating Grand Jury Transcript/Evidence. {#sec-rule-229 omnilex-key=us-pa-regs-official--title-234--Rule 229}

Except as otherwise set forth in these rules, the court shall control the original and all copies of the transcript and shall maintain their secrecy. When physical evidence is presented before the investigating grand jury, the court shall establish procedures for supervising custody.

This rule requires that the court retain control over the transcript of the investigating grand jury proceedings and all copies thereof, as the record is transcribed, until such time as the transcript is released as provided in these rules.

Reference to the court in this rule and in Rule 230 is intended to be to the supervising judge of the grand jury.

Official Note

Rule 261 adopted June 26, 1978, effective January 9, 1979; Comment revised October 22, 1981, effective January 1, 1982; renumbered Rule 229 and amended March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 230 Disclosure of Testimony Before Investigating Grand Jury. {#sec-rule-230 omnilex-key=us-pa-regs-official--title-234--Rule 230}

(A) Attorney for the Commonwealth:

Upon receipt of the certified transcript of the proceedings before the investigating grand jury, the court shall furnish a copy of the transcript to the attorney for the Commonwealth for use in the performance of official duties.

(B) Defendant in a Criminal Case:

(1) When a defendant in a criminal case has testified before an investigating grand jury concerning the subject matter of the charges against him or her, upon application of such defendant the court shall order that the defendant be furnished with a copy of the transcript of such testimony.

(2) When a witness in a criminal case has previously testified before an investigating grand jury concerning the subject matter of the charges against the defendant, upon application of such defendant the court shall order that the defendant be furnished with a copy of the transcript of such testimony; however, such testimony may be made available only after the direct testimony of that witness at trial.

(3) Upon appropriate motion of a defendant in a criminal case, the court shall order that the transcript of any testimony before an investigating grand jury that is exculpatory to the defendant, or any physical evidence presented to the grand jury that is exculpatory to the defendant, be made available to such defendant.

(C) Other Disclosures:

Upon appropriate motion, and after a hearing into relevancy, the court may order that a transcript of testimony before an investigating grand jury, or physical evidence before the investigating grand jury, may be released to another investigative agency, under such other conditions as the court may impose.

It is intended that the ‘‘official duties’’ of the attorney for the Commonwealth may include reviewing investigating grand jury testimony with a prospective witness in a criminal case stemming from the investigation, when such testimony relates to the subject matter of the criminal case. It is not intended that a copy of such testimony be released to the prospective witness.

Subparagraph (B)(3) is intended to reflect the line of cases beginning with Brady v. Maryland, 373 U. S. 83 (1963), and the refinements of the Brady standards embodied in subsequent judicial decisions.

Official Note

Rule 263 adopted June 26, 1978, effective January 9, 1979; renumbered Rule 230 and amended March 1, 2000, effective April 1, 2001; amended September 21, 2012, effective November 1, 2012.

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. 1478 (March 18, 2000).

Final Report explaining the September 21, 2012 correction of a typographical error in paragraph (B)(1) published with the Court’s Order at 42 Pa.B. 6251 (October 6, 2012).

The provisions of this Rule 230 amended September 21, 2012, effective November 1, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (314387) and (264157).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 231 Who May be Present During Session of an Investigating Grand Jury. {#sec-rule-231 omnilex-key=us-pa-regs-official--title-234--Rule 231}

(A) The attorney for the Commonwealth, the alternate grand jurors, the witness under examination, and a stenographer may be present while the investigating grand jury is in session. Counsel for the witness under examination may be present as provided by law.

(B) The supervising judge, upon the request of the attorney for the Commonwealth or the grand jury, may order that an interpreter, security officers, and such other persons as the judge may determine are necessary to the presentation of the evidence may be present while the investigating grand jury is in session.

(C) All persons who are to be present while the grand jury is in session shall be identified in the record, shall be sworn to secrecy as provided in these rules, and shall not disclose any information pertaining to the grand jury except as provided by law.

(D) No person other than the permanent grand jurors may be present during the deliberations or voting of the grand jury.

As used in this rule, the term ‘‘witness’’ includes both juveniles and adults.

The 1987 amendment provides that either the attorney for the Commonwealth, or a majority of the grand jury, through their foreperson, may request that certain, specified individuals, in addition to those referred to in paragraph (A), be present in the grand jury room while the grand jury is in session. As provided in paragraph (B), the additional people would be limited to an interpreter or interpreters the supervising judge determines are needed to assist the grand jury in understanding the testimony of a witness; a security officer or security officers the supervising judge determines are needed to escort witnesses who are in custody or to protect the members of the grand jury and the other people present during a session of the grand jury; and any individuals the supervising judge determines are required to assist the grand jurors with the presentation of evidence. This would include such people as the case agent (lead investigator), who would assist the attorney for the Commonwealth with questions for witnesses; experts, who would assist the grand jury with interpreting difficult, complex technical evidence; or technicians to run such equipment as tape recorders, videomachines, etc.

It is intended in paragraph (B) that when the supervising judge authorizes a certain individual to be present during a session of the investigating grand jury, the person may remain in the grand jury room only as long as is necessary for that person to assist the grand jurors.

Paragraph (C), added in 1987, generally prohibits the disclosure of any information related to testimony before the grand jury. There are, however, some exceptions to this prohibition enumerated in Section 4549 of the Judicial Code, 42 Pa.C.S. § 4549.

Official Note

Rule 264 adopted June 26, 1978, effective January 9, 1979; amended June 5, 1987, effective July 1, 1987; renumbered Rule 231 and amended March 1, 2000, effective April 1, 2001; Comment revised January 18, 2013, effective May 1, 2013.

Committee Explanatory Reports:

Report explaining the June 5, 1987 amendments adding paragraphs (B)—(D) published at 17 Pa.B. 167 (January 10, 1987).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the January 18, 2013 Comment revision concerning definition of witness as used in this rule published at 43 Pa.B. 653 (February 2, 2013).

The provisions of this Rule 231 amended January 18, 2013, effective May 1, 2013, 43 Pa.B. 652. Immediately preceding text appears at serial pages (363808) to (363809).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 240 Applicability of Investigating Grand Jury Rules. {#sec-rule-240 omnilex-key=us-pa-regs-official--title-234--Rule 240}

The procedure governing investigating grand juries as set forth in Part B(1) (Investigating Grand Juries) of this Chapter, shall, with the exception of Rule 220 (Motion and Order For Investigating Grand Jury) and Rule 221 (Summoning Investigating Grand Jurors), be applicable to multi-county investigating grand juries.

The Investigating Grand Jury Act, 42 Pa.C.S. § § 4541—4553, establishes the authority for ‘‘multi-county’’ (that is, both statewide and regional) grand juries.

Official Note

Rule 270 adopted July 1, 1980, effective August 1, 1980; Comment revised October 22, 1981, effective January 1, 1982; amended August 12, 1993, effective September 1, 1993; renumbered Rule 240 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

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

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).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 241 Summoning Jurors for Statewide or Regional Investigating Grand Juries. {#sec-rule-241 omnilex-key=us-pa-regs-official--title-234--Rule 241}

(A) Grand Jury Having Statewide Jurisdiction:

(1) Upon receipt of an application to convene an investigating grand jury having statewide jurisdiction, the Court shall cause the Court Administrator of Pennsylvania to draw 6 counties at random from the district where the grand jury will be located, which are to be weighted on the basis of their approximate relative populations. The 6 counties so drawn plus the county or counties to be designated as locations of the investigating grand jury, shall together supply jurors for the investigating grand jury. The Court Administrator of Pennsylvania shall establish the number of names of persons to be forwarded from each county, as provided in (A)(2), based on the approximate relative populations of the respective counties involved. The Court Administrator of Pennsylvania shall then submit this information to the Court.

(2) Upon receipt of the order convening an investigating grand jury, the Court Administrator of Pennsylvania shall request from the president judge of each of the counties supplying jurors the names and addresses of persons residing in the county who are eligible by law to serve as grand jurors and who have been screened as provided by Rule 242.

(3) The total of such names of prospective jurors to be collected shall be 200, of which 50 shall be selected at random and summoned by the Court Administrator of Pennsylvania to the designated location of the investigating grand jury. The supervising judge shall impanel the investigating grand jury from this panel of 50 prospective jurors. If the summoning of additional prospective jurors becomes necessary, they shall be summoned by the supervising judge from among the remaining 150 prospective jurors.

(B) Grand Jury Having Regional Jurisdiction:

(1) Upon receipt of an application to convene an regional investigating grand jury, the Court shall cause the Court Administrator of Pennsylvania to establish the number of names of persons to be forwarded from each county, as provided in (B)(2), based on the approximate relative populations of the respective counties involved. The Court Administrator of Pennsylvania shall submit the information to the Court.

(2) Upon receipt of the order convening a regional investigating grand jury, the Court Administrator of Pennsylvania shall request from the president judge of each of the counties specified in the convening order the names and addresses of persons residing in the county who are eligible by law to serve as grand jurors and who have been screened as provided in Rule 242.

(3) The total of such names of prospective jurors to be collected shall be 200, of which 50 shall be selected at random and summoned by the Court Administrator of Pennsylvania to the designated location of the investigating grand jury. The supervising judge shall impanel the investigating grand jury from this panel of 50 prospective jurors. If the summoning of additional prospective jurors becomes necessary, they shall be summoned by the supervising judge from among the remaining 150 prospective jurors.

(C) Definitions:

(1) ‘‘District’’ means the Eastern District, Middle District, and Western District.

(2) ‘‘Eastern District’’ consists of Berks, Bucks, Carbon, Chester, Delaware, Lackawanna, Lehigh, Luzerne, Monroe, Montgomery, Northampton, Philadelphia, Pike, Susquehanna, Wayne, and Wyoming counties.

(3) ‘‘Middle District’’ consists of Adams, Bradford, Cameron, Centre, Clinton, Columbia, Cumberland, Dauphin, Franklin, Fulton, Huntingdon, Juniata, Lancaster, Lebanon, Lycoming, Mifflin, Montour, Northumberland, Perry, Potter, Schuylkill, Snyder, Sullivan, Tioga, Union, and York counties.

(4) ‘‘Western District’’ consists of Allegheny, Armstrong, Beaver, Bedford, Blair, Butler, Cambria, Clarion, Clearfield, Crawford, Elk, Erie, Fayette, Forest, Greene, Indiana, Jefferson, Lawrence, McKean, Mercer, Somerset, Venango, Warren, Washington, and Westmoreland counties.

If the 200 prospective jurors prove to be insufficient for the impaneling of the statewide or regional investigating grand jury, it is expected that additional prospective jurors may be summoned as provided by law.

Official Note

Rule 241 adopted July 1, 1980, effective August 1, 1980; amended October 21, 1983, effective January 1, 1984 ; renumbered Rule 241 and amended March 1, 2000, effective April 1, 2001; amended June 7, 2006, effective immediately.

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. 1478 (March 18, 2000).

The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 242 Providing Prospective Jurors for Statewide or Regional Investigating Grand Juries. {#sec-rule-242 omnilex-key=us-pa-regs-official--title-234--Rule 242}

The following procedure shall be applicable in each county that under these rules, is to supply prospective jurors for a statewide or regional investigating grand jury:

(1) Such prospective jurors shall be drawn and summoned in the same manner as provided by law for other juries.

(2) The voir dire of such prospective jurors shall be conducted by the supervising judge of the investigating grand jury, or the supervising judge may request that the president judge of the county, conduct the voir dire, or that the president judge designate another judge of the county to conduct the voir dire.

(3) The names of any such prospective jurors forwarded to the Court Administrator of Pennsylvania shall include only those prospective jurors who have undergone such voir dire.

It is intended that, as to prospective jurors for a statewide or regional investigating grand jury, the voir dire take place as follows: (1) the voir dire would be conducted in each county which is to supply jurors by the supervising judge of the investigating grand jury, the president judge, or another judge of that county designated by the president judge; and (2) any necessary additional voir dire would thereafter be conducted by the supervising judge of the investigating grand jury at the designated location of the investigating grand jury. See Rule 240.

Official Note

Rule 272 adopted July 1, 1980, effective August 1, 1980; amended November 9, 1984, effective January 2, 1985; renumbered Rule 242 and amended March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 243 Location of Statewide or Regional Investigating Grand Juries. {#sec-rule-243 omnilex-key=us-pa-regs-official--title-234--Rule 243}

(A) The location or locations of an investigating grand jury having statewide jurisdiction shall be designated in the order convening the investigating grand jury.

(B) Investigating grand juries having multi-county jurisdiction over specified counties shall be located within any county of its jurisdiction.

Included among the many factors that may be taken into account in designating the location of the statewide or regional investigating grand jury are: ease of access of location; the expected geographical focus of the investigation; and availability of facilities.

Official Note

Rule 273 adopted July 1, 1980, effective August 1, 1980; renumbered Rule 243 and amended March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

234 Pa. Code Rule 244 Venue. {#sec-rule-244 omnilex-key=us-pa-regs-official--title-234--Rule 244}

Any presentment by a statewide or regional investigating grand jury shall be returned to the supervising judge who shall, by order, designate the county for filing the presentment and for further proceedings.

Although venue ordinarily lies in a county where the offense is alleged to have occurred, there are several variations on this principle. See Commonwealth v. Simeone, 294 A.2d 921 (Pa. Super. 1972); Commonwealth v. Marino, 245 A.2d 868 (Pa. Super. 1968); aff’d., 253 A.2d 911, cert. denied, 395 U. S. 983 (1969).

Official Note

Rule 274 adopted July 1, 1980, effective August 1, 1980; renumbered Rule 244 and Comment revised March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 241 amended June 7, 2006, effective immediately. Immediately preceding text appears at serial pages (264159) to (264160).

Chapter 3 ACCELERATED REHABILITATIVE DISPOSITION (ARD)

234 Pa. Code Rule 300 Accelerated Rehabilitative Disposition in Summary Cases. {#sec-rule-300 omnilex-key=us-pa-regs-official--title-234--Rule 300}

(A) Unless the district attorney has elected, pursuant to paragraph(B)(1), that ARD in summary cases proceed in the court of common pleas, ARD in summary cases shall proceed in the office of the proper issuing authority as provided in Rule 301.

(B) The district attorney, by filing a certification with the president judge, may:

(1) elect that ARD in summary cases proceed in the court of common pleas pursuant to Rule 302; and/or

(2) designate certain classes of offenses or offenders, in addition to those statutorily excluded, that shall not be considered for summary case ARD.

(C) When a certification has been filed by the district attorney pursuant to this rule, the president judge shall promulgate a local rule in substantially the following form:

RULE. SUMMARY CASE ARD.

The District Attorney of County has filed a certification pursuant to Pa.R.Crim.P. 300, and:

(1)

has elected that ARD in summary cases shall proceed in the court of common pleas pursuant to the procedures in Pa.R.Crim.P. 302; and/or

(2)

has designated the following classes of offenses and/or offenders, in addition to those which are statutorily excluded, as ineligible for summary case ARD:

(D) The president judge of each judicial district shall formulate local procedures to provide uniformity within the judicial district for ARD in summary cases before the minor judiciary under Rule 301, and in the court of common pleas under Rule 302.

(1) The locally formulated procedures shall be in writing, filed with the clerk of courts, and served upon all judges handling summary case ARD in the court of common pleas and upon all issuing authorities within the judicial district.

(2) The local procedures shall, at a minimum, establish:

(a) costs and administrative expenses taxable for summary case ARD;

(b) procedures for restitution;

(c) conditions of the program;

(d) record checking, record keeping, and reporting requirements;

(e) procedures requiring each issuing authority to submit a monthly report on the disposition of all the cases eligible for ARD to the official designated by the president judge to compile such reports and monitor the cases; and

(f) procedures for completion or termination of the program.

Recognizing the minor nature of summary offenses, this rule provides the general, statewide procedural framework for implementing ARD in summary cases. It is intended that the president judge of each judicial district will establish procedures under paragraph (D) that are specific to summary case ARD within the judicial district consistent with this rule and with Rules 301 and 302. These procedures should encourage the prompt processing and disposition of summary cases considered for ARD.

The district attorney is responsible for designating which classes of offenses or offenders may not be considered for ARD in summary cases. This is accomplished, pursuant to paragraph (B)(2), by the district attorney’s filing a certification with the president judge. In addition, there may be classes of offenses or offenders that are statutorily excluded. See, e.g., Section 1520(a) of the Judicial Code, 42 Pa.C.S. § 1520(a), which excludes cases charging offenses under Titles 34 and 75 from being considered for or included in the summary case adjudication alternative authorized by the statute.

Paragraph (A) provides that ordinarily summary case ARD will proceed before the minor judiciary. See Rule 301 for the general procedures in such cases. As an alternative local option, Rule 300 also authorizes the district attorney to elect that ARD in summary cases be removed to the court of common pleas for processing and disposition, and paragraph (B)(1) requires that the district attorney file a certification with the president judge to implement this election. See Rule 302 for the general procedures when this local option has been elected.

When a certification is filed, the president judge must promulgate the effectuating local rule. The local rule mechanism has the advantage of notice, publication, and recordation, which are inherent in the local rule process.

The district attorney (or a successor district attorney) may withdraw the election to move summary ARD consideration to the court of common pleas, and/or change the designation of classes of offenses or offenders that are not eligible for ARD, by filing a new certification. When a new certification is filed, the president judge must rescind or modify the local rule.

The president judge in each judicial district must formulate local procedures pursuant to paragraph (D) for the actual implementation of the summary case ARD programs in the court of common pleas or before the minor judiciary within his or her judicial district, thereby providing county-wide uniformity. These locally formulated procedures may include procedures that are in addition to those required by the Rules of Criminal Procedure to take into account the special nature and the special dispositional and administrative requirements of summary cases generally and specifically within the judicial district. For example, the costs imposed on a defendant who is admitted into a summary case ARD program should not be the same as the costs imposed on a defendant for ARD in a court case, but rather should be adjusted downward and kept minimal to reflect the minor nature of the summary case. The president judge, however, must implement without change the district attorney’s elections made pursuant to paragraph (B). See Commonwealth v. Lutz, 495 A.2d 928 (Pa. 1985).

This rule should not be construed as mandating new programs. Rather, summary case ARD programs may be established within the parameters of existing programs, and should be adapted to meet the needs of the defendants in summary cases. See, e.g., 42 Pa.C.S. § 1520(b).

Official Note

Previous Rule 160 adopted April 10, 1989, effective July 1, 1989; rescinded January 31, 1991, effective July 1, 1991, and replaced by Rules 300, 301, and 302. Present Rule 160 adopted January 31, 1991, effective July 1, 1991; renumbered Rule 300 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa. B. 621 (February 16, 1991).

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).

History

• Source: The provisions of this Rule 320 amended March 14, 2011, effective April 1, 2011, 41 Pa.B. 1759; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial page (414642).

234 Pa. Code Rule 301 Procedures for Accelerated Rehabilitative Disposition in Summary Cases Before the Minor Judiciary. {#sec-rule-301 omnilex-key=us-pa-regs-official--title-234--Rule 301}

(A) Unless the district attorney has elected that ARD in summary cases proceed in the court of common pleas pursuant to Rule 300(B)(1), if the defendant is eligible for inclusion in an ARD program, the issuing authority may admit the defendant into an ARD program subject to the local procedures formulated by the president judge pursuant to Rule 300(D). If the issuing authority does not admit a defendant who is eligible for ARD, the issuing authority shall include in the monthly report required by Rule 300(D)(2)(e) a written statement of the reasons for not admitting the defendant.

(B) If the defendant declines to accept or fails to complete the program, or if the issuing authority does not admit the case for ARD, the case shall proceed to trial as provided in Chapter 4.

This rule provides the general procedures for summary case ARD before the minor judiciary. Working within the procedural framework of this rule and Rule 300, the president judge is responsible for establishing the specific local procedures which will govern ARD in summary cases before the minor judiciary in the judicial district as required in Rule 300(D).

Official Note

Rule 161 adopted January 31, 1991, effective July 1, 1991; renumbered Rule 301 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).

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).

History

• Source: The provisions of this Rule 320 amended March 14, 2011, effective April 1, 2011, 41 Pa.B. 1759; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial page (414642).

234 Pa. Code Rule 302 Procedures for Accelerated Rehabilitative Disposition in Summary Cases in the Court of Common Pleas—Local Option. {#sec-rule-302 omnilex-key=us-pa-regs-official--title-234--Rule 302}

(A) When the district attorney has filed a certification to proceed by local option under Rule 300, after institution of criminal proceedings in a summary case, the issuing authority, the defendant, the defendant’s attorney, or any other interested person may request that the district attorney consider the defendant’s case for inclusion in the Accelerated Rehabilitative Disposition Program.

(B) If the district attorney decides to move for the defendant’s inclusion in an ARD program, the case shall proceed as provided in Rules 311—320, subject to the local procedures formulated by the president judge pursuant to Rule 300(D).

(C) If the district attorney decides not to move for the defendant’s inclusion in an ARD program, or if the defendant declines to accept or fails to complete the program, or if the judge does not accept the case for ARD, the case shall be referred to the proper issuing authority and shall proceed as provided in Chapter 4.

This rule provides the general procedures for ARD in a summary case that has been removed to the court of common pleas by the filing of a certification by the district attorney pursuant to Rule 300(B)(1). Working within the procedural framework of this rule, the president judge has the responsibility of establishing for the judicial district the specific local procedures which will govern ARD in summary cases in the court of common pleas as required in Rule 300(D).

Unless provided otherwise in the local procedures formulated by the president judge, when the district attorney decides to move for the defendant’s inclusion in an ARD program pursuant to paragraph (B), the issuing authority must be notified of that decision. Thereafter, the issuing authority should immediately file the transcript of any proceedings, the original complaint or citation, the summons or warrant of arrest, if any, and the bail bond, if any, with the officer of the court of common pleas designated to receive such papers.

As used in paragraph (A), ‘‘any other interested person’’ would include, for example, the parent of a juvenile charged with a summary offense, the law enforcement officer who instituted the proceedings, or a representative from the community service program or the probation department.

Official Note

Rule 162 adopted January 31, 1991, effective July 1, 1991; renumbered Rule 302 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).

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).

History

• Source: The provisions of this Rule 320 amended March 14, 2011, effective April 1, 2011, 41 Pa.B. 1759; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial page (414642).

234 Pa. Code Rule 310 Motion for Accelerated Rehabilitative Disposition. {#sec-rule-310 omnilex-key=us-pa-regs-official--title-234--Rule 310}

After criminal proceedings in a court case have been instituted, the attorney for the Commonwealth may move, before a judge empowered to try court cases, that the case be considered for accelerated rehabilitative disposition.

A request for inclusion into the program may be made to the district attorney by the defendant, the defendant’s attorney, or an interested agency or institution.

See Rule 300 with regard to accelerated rehabilitative disposition in summary cases.

Official Note

Rule 176 approved May 24, 1972, effective immediately; amended February 15, 1974, effective immediately; amended April 10, 1989, effective July 1, 1989; renumbered Rule 310 and Comment revised March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 320 amended March 14, 2011, effective April 1, 2011, 41 Pa.B. 1759; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial page (414642).

234 Pa. Code Rule 311 Application Process and Notice of Motion by Attorney for the Commonwealth. {#sec-rule-311 omnilex-key=us-pa-regs-official--title-234--Rule 311}

(A) When accelerated rehabilitative disposition proceedings are initiated, the attorney for the Commonwealth shall advise the defendant and the defendant’s attorney of the attorney for the Commonwealth’s intention to present the case to an appropriate judge. Notice of the proceedings shall be given also to any victim or victims of the offense charged.

(B) Information or statements supplied by the defendant to the attorney for the Commonwealth in an ARD application shall not be used against the defendant for any purpose in any criminal proceedings except a prosecution based on the falsity of the information or statement supplied.

No particular form of ARD application or application procedure is required.

Official Note

Rule 177 approved May 24, 1972, effective immediately; amended April 10, 1989, effective July 1, 1989; amended January 31, 1991, effective July 1, 1991; renumbered Rule 311 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 320 amended March 14, 2011, effective April 1, 2011, 41 Pa.B. 1759; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial page (414642).

234 Pa. Code Rule 312 Hearing, Explanation of Program. {#sec-rule-312 omnilex-key=us-pa-regs-official--title-234--Rule 312}

Hearing on a motion for accelerated rehabilitative disposition shall be in open court in the presence of the defendant, the defendant’s attorney, the attorney for the Commonwealth, and any victims who attend. At such hearing, it shall be ascertained on the record whether the defendant understands that:

(1) acceptance into and satisfactory completion of the accelerated rehabilitative disposition program offers the defendant an opportunity to earn a dismissal of the pending charges;

(2) should the defendant fail to complete the program, the defendant waives the appropriate statute of limitations and the defendant’s right to a speedy trial under any applicable Federal or State constitutional provisions, statutes or rules of court during the period of enrollment in the program.

Although acceptance into an ARD program is not intended to constitute a conviction under these rules, it may be statutorily construed as a conviction for purposes of computing sentences on subsequent convictions. See, e.g., 75 Pa.C.S. § 3806(a).

In addition to requesting that the defendant waive Rule 600 for the period of enrollment in the ARD program, the attorney for the Commonwealth may request that the defendant waive Rule 600 for the period of time spent in processing and considering the defendant’s inclusion into the ARD program. See Rule 311.

Official Note

Rule 178 approved May 24, 1972; effective immediately; amended February 15, 1974, effective immediately; amended April 10, 1989, effective July 1, 1989; renumbered Rule 312 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised October 1, 2012, effective July 1, 2013.

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. 1478 (March 18, 2000).

Final Report explaining the October 1, 2012 Comment revision concerning waiver of Rule 600 published with the Court’s Order at 42 Pa.B. 6629 (October 20, 2012).

The provisions of this Rule 312 amended October 1, 2012, effective July 1, 2013, 42 Pa.B. 6622. Immediately preceding text appears at serial page (318605).

History

• Source: The provisions of this Rule 320 amended March 14, 2011, effective April 1, 2011, 41 Pa.B. 1759; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial page (414642).

234 Pa. Code Rule 313 Hearing, Manner of Proceeding. {#sec-rule-313 omnilex-key=us-pa-regs-official--title-234--Rule 313}

(A) When the defendant, with the advice and agreement of the defendant’s attorney, indicates understanding of these proceedings, requests acceptance into the program, and agrees to the terms set forth in Rule 312, the stenographer shall close the record.

(B) The judge thereupon shall hear the facts of the case as presented by the attorney for the Commonwealth, and such information as the defendant or the defendant’s attorney may present, and shall hear from any victim present. No statement presented by the defendant shall be used against the defendant for any purpose in any criminal proceeding except a prosecution based on the falsity of the information or statement supplied.

(C) After hearing the facts of the case, if the judge believes that it warrants accelerated rehabilitative disposition, the judge shall order the stenographer to reopen the record and shall state to the parties the conditions of the program. If the judge does not accept the case for accelerated rehabilitative disposition, the judge shall order that the case proceed on the charges as provided by law. No appeal shall be allowed from such order.

(D) After the stenographer reopens the record, the defendant shall thereupon state to the judge whether the defendant accepts the conditions and agrees to comply. If the statement is in the affirmative, the judge may grant the motion for accelerated rehabilitative disposition and shall enter an appropriate order as set forth in Rules 314 and 315. If the defendant answers in the negative, the judge shall proceed as set forth in Rule 317.

(E) Upon the judge’s granting of the motion for accelerated rehabilitative disposition, bail shall be terminated, and any money or other form of security deposited shall be returned in accordance with the rules pertaining to bail.

The phrase ‘‘or civil’’ was deleted from paragraph (B) in the 1989 general revision of the ARD rules. Whether a defendant’s statement may be used in a noncriminal proceeding is a matter of substantive law.

In any case in which a summary offense has been joined with the misdemeanor or felony charges that have been disposed of by the defendant’s acceptance into an ARD program, if the summary offense has not been disposed of prior to the ARD hearing, the trial judge may not remand the summary offense to the issuing authority for disposition, but must dispose of the summary offense at the ARD hearing. The Crimes Code § 110, 18 Pa.C.S. § 110, Commonwealth v. Caufman, 541 Pa. 299, 662 A.2d 1050 (1995), and Commonwealth v. Campana, 455 Pa. 622, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808 (1973), on remand, 454 Pa. 233, 314 A.2d 854 (1974), may require in a particular case that the trial judge have the defendant execute a ‘‘Campana’’ waiver prior to disposing of the summary offense at the ARD hearing.

When bail is terminated upon acceptance of the defendant into the ARD program, such action constitutes a ‘‘full and final disposition’’ for purposes of Rule 534 (Duration of Obligation) and Rule 535 (Receipt of Deposit; Return of Deposit).

Official Note

Rule 179 approved May 24, 1972, effective immediately; amended April 10, 1989, effective July 1, 1989; 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; renumbered 313 and amended March 1, 2000, effective April 1, 2001; Comment revised March 9, 2006, effective September 1, 2006.

Committee Explanatory Reports:

Final Report explaining the September 13, 1995 amendments published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 3, 2006 Comment revision concerning joinder of summary offenses with misdemeanor or felony charges published with the Court’s Order at 36 Pa.B. 1392 (March 25, 2006).

The provisions of this Rule 313 amended March 9, 2006, effective September 1, 2006, 36 Pa.B. 1385. Immediately preceding text appears at serial pages (264169) to (264170).

History

• Source: The provisions of this Rule 320 amended March 14, 2011, effective April 1, 2011, 41 Pa.B. 1759; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial page (414642).

234 Pa. Code Rule 314 Deferring Action Upon Admission to Program Before Information. {#sec-rule-314 omnilex-key=us-pa-regs-official--title-234--Rule 314}

When a defendant is accepted into the program of accelerated rehabilitative disposition before the filing of an information, the judge shall order that no information shall be filed with the court on the charges contained in the transcript during the term of the program.

Official Note

Rule 180 adopted May 24, 1972, effective immediately; amended February 15, 1974, effective immediately; amended June 19, 1996, effective July 1, 1996; renumbered Rule 314 March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the June 19, 1996 amendments published with the Court’s Order at 26 Pa.B. 3128 (July 6, 1996).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 320 amended March 14, 2011, effective April 1, 2011, 41 Pa.B. 1759; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial page (414642).

234 Pa. Code Rule 315 Deferring Adjudication of the Charges Upon Admission to Program After Information. {#sec-rule-315 omnilex-key=us-pa-regs-official--title-234--Rule 315}

When a defendant is accepted into the program of accelerated rehabilitative disposition after the filing of an information, the judge shall order that further proceedings on the charges shall be postponed during the term of the program.

Official Note

Rule 181 adopted May 24, 1972, effective immediately; amended February 15, 1974, effective immediately; amended June 19, 1996, effective July 1, 1996; renumbered Rule 315 March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the June 19, 1996 amendments published with the Court’s Order at 26 Pa.B. 3128 (July 6, 1996).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 320 amended March 14, 2011, effective April 1, 2011, 41 Pa.B. 1759; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial page (414642).

234 Pa. Code Rule 316 Conditions of the Program. {#sec-rule-316 omnilex-key=us-pa-regs-official--title-234--Rule 316}

(a) The conditions of the program may include:

(1) those imposed with respect to probation after conviction of a crime, including restitution, except that a fine may not be imposed;

(2) the imposition of costs and a reasonable charge relating to the expense of administering the program; and

(3) such other conditions as may be agreed to by the parties.

(b) The period of such program for any defendant shall not exceed two years.

Subdivision (a) makes it clear that reasonable charges for the expense of administering the program may be imposed on defendants. It is intended that these charges may be imposed on those admitted into the program and that no separate fees be required for application for admission into the program.

The practice has been to permit qualified individuals who are indigent to participate in the ARD program without payment of costs or charges. The 1983 amendment is not intended to change this practice; rather, it is intended that such practice will continue.

Concerning restitution, see 42 Pa.C.S. § 9728 (Collection of restitution, reparation, fees, costs, fines, and penalties).

A defendant may be required to accept conditions of the program as provided by statute. See, e.g., 75 Pa.C.S. § 3807 (Accelerated Rehabilitative Disposition).

The provisions of this Rule 316 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247; amended April 21, 2026, effective November 1, 2026, 56 Pa.B. 2555. Immediately preceding text appears at serial page (364096).

History

• Source: The provisions of this Rule 320 amended March 14, 2011, effective April 1, 2011, 41 Pa.B. 1759; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial page (414642).

234 Pa. Code Rule 317 Procedure Upon Refusal to Accept the Conditions. {#sec-rule-317 omnilex-key=us-pa-regs-official--title-234--Rule 317}

If a defendant refuses to accept the conditions required by the judge, the judge shall deny the motion for accelerated rehabilitative disposition. In such event, the case shall proceed in the same manner as if these proceedings had not taken place.

Official Note

Rule 183 approved May 24, 1972, effective immediately; renumbered Rule 317 March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 320 amended March 14, 2011, effective April 1, 2011, 41 Pa.B. 1759; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial page (414642).

234 Pa. Code Rule 318 Procedure on Charge of Violation of Conditions. {#sec-rule-318 omnilex-key=us-pa-regs-official--title-234--Rule 318}

(A) If the attorney for the Commonwealth files a motion alleging that the defendant during the period of the program has violated a condition thereof, or objects to the defendant’s request for an order of discharge, the judge who entered the order for ARD may issue such process as is necessary to bring the defendant before the court.

(B) A motion alleging such violation filed pursuant to paragraph (A) must be filed during the period of the program or, if filed thereafter, must be filed within a reasonable time after the alleged violation was committed.

(C) When the defendant is brought before the court, the judge shall afford the defendant an opportunity to be heard. If the judge finds that the defendant has committed a violation of a condition of the program, the judge may order, when appropriate, that the program be terminated, and that the attorney for the Commonwealth shall proceed on the charges as provided by law. No appeal shall be allowed from such order.

See Rules 600(A)(2)(c) and 1013(I) and Comments for the time within which to commence trial following a termination order.

Official Note

Rule 184 approved May 24, 1972, effective immediately; amended September 3, 1993, effective January 1, 1994; renumbered Rule 318 and amended March 1, 2000, effective April 1, 2001; Comment revised October 1, 2012, effective July 1, 2013.

Committee Explanatory Reports:

Report explaining the September 3, 1993 amendments published with the Court’s Order at 23 Pa.B. 4492 (September 25, 1993).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the October 1, 2012 Comment revision changing the Rule 600 reference published with the Court’s Order at 42 Pa.B. 6629 (October 20, 2012).

The provisions of this Rule 318 amended October 1, 2012, effective July 1, 2013, 42 Pa.B. 6622. Immediately preceding text appears at serial pages (264172) and (356531).

History

• Source: The provisions of this Rule 320 amended March 14, 2011, effective April 1, 2011, 41 Pa.B. 1759; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial page (414642).

234 Pa. Code Rule 319 Procedure for Obtaining Order for Dismissal Upon Successful Completion of the Program. {#sec-rule-319 omnilex-key=us-pa-regs-official--title-234--Rule 319}

When the defendant shall have completed satisfactorily the program prescribed and complied with its conditions, the defendant may move the court for an order dismissing the charges. This motion shall be supported by affidavit of the defendant and by certification of the agency or person charged with supervising the defendant’s program, if any. A copy of the motion shall be served on the attorney for the Commonwealth who shall within 30 days after service advise the judge of any objections to the motion, serving a copy of such objections on the defendant or the defendant’s attorney. If there are no objections filed within the 30-day period, the judge shall thereafter dismiss the charges against the defendant. If there are objections filed with regard to the dismissal of charges, the judge shall proceed as set forth in Rule 318.

In some counties, court agencies or the district attorney’s office have procedures for initiating the dismissal of the charges upon the defendant’s successful completion of the program. This rule is not intended to preclude these procedures.

For the procedures for expungement when there is a dismissal, see Rule 320.

Official Note

Rule 185 approved May 24, 1972, effective immediately; amended April 10, 1989, effective July 1, 1989; renumbered Rule 319 and amended March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 320 amended March 14, 2011, effective April 1, 2011, 41 Pa.B. 1759; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial page (414642).

234 Pa. Code Rule 320 Procedure for Expungement Upon Successful Completion of ARD Program. {#sec-rule-320 omnilex-key=us-pa-regs-official--title-234--Rule 320}

(A) When the judge orders the dismissal of the charges against the defendant, the judge also shall order the expungement of the defendant’s arrest record, subject to the provisions of paragraph (B). The expungement order shall contain the same information that is required in Rule 490(C) in summary cases and Rule 790(C) in court cases.

(B) If the attorney for the Commonwealth objects to the automatic expungement, the objections shall be filed with the judge, together with the objections to dismissal, if any, within 30 days after service of a motion for dismissal under Rule 319, and copies of the objections shall be served on the defendant or the defendant’s attorney.

(C) If the objections are filed, the judge shall hold a hearing on the objections, affording all parties an opportunity to be heard.

The cases have held that a defendant’s arrest record shall be expunged upon successful completion of an ARD program, unless the Commonwealth presents compelling reasons why the arrest record should be retained. See, e.g., Commonwealth v. Armstrong, 495 Pa. 506, 434 A.2d 1205 (1981). Cf., Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981). For processes and limitations with regard to expungement generally, see Section 9122 of the Criminal History Record Information Act, 18 Pa.C.S. § 9122. See also, Vehicle Code, § § 1534(b) and 3807, added by 75 Pa.C.S. § § 1534(b) and 3807.

Official Note

Rule 186 adopted April 10, 1989, effective July 1, 1989; renumbered Rule 320 and amended March 1, 2000, effective April 1, 2001; amended March 14, 2011, effective April 1, 2011.

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. 1478 (March 18, 2000).

Final Report explaining the March 14, 2011 amendments to paragraph (A) adding the cross reference to Rules 490 and 790 published with the Court’s Order at 41 Pa.B. 1760 (April 2, 2011).

The provisions of this Rule 320 amended March 14, 2011, effective April 1, 2011, 41 Pa.B. 1759; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial page (414642).

History

• Source: The provisions of this Rule 320 amended March 14, 2011, effective April 1, 2011, 41 Pa.B. 1759; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial page (414642).

Chapter 4 PROCEDURES IN SUMMARY CASES

234 Pa. Code Rule 400 Means of Instituting Proceedings in Summary Cases. {#sec-rule-400 omnilex-key=us-pa-regs-official--title-234--Rule 400}

Criminal proceedings in summary cases shall be instituted either by:

(1) issuing a citation to the defendant; or

(2) filing a citation; or

(3) filing a complaint; or

(4) arresting without a warrant when arrest is specifically authorized by law.

This rule establishes the means of instituting criminal proceedings in summary cases. For general citation procedures, see Chapter 4 Part B, Rules 402 and 403.

For the procedures when a citation is issued to a defendant pursuant to paragraph (1) of this rule, see Chapter 4 Part B(1), Rules 405, 406, 407, 408, and 409.

Electronically transmitting the citation information or parking ticket information to the issuing authority would institute proceedings by filing pursuant to paragraph (2) of this rule.

For the procedures when a citation is filed pursuant to paragraph (2), see Chapter 4 Part B(2), Rules 410, 411, 412, 413, and 414.

For the procedures when a complaint is filed pursuant to paragraph (3), see Chapter 4 Part C, Rules 420, 421, 422, 423, and 424.

For the procedures when there is an arrest without a warrant pursuant to paragraph (4) see Chapter 4 Part D(2), Rules 440 and 441.

For the procedures regarding the use of arrest warrants in summary cases, see Chapter 4 Part D(1), Rules 430 and 431.

For general procedures applicable in all summary cases, see Chapter 4 Part E, Rules 451, 452, 453, 454, 455, 456, 457, and 458.

For the procedures for appealing to the court of common pleas for a trial de novo, see Chapter 4 Part F, Rules 460, 461, and 462.

For the procedures in summary cases charging parking violations, see Chapter 4 Part A, Rule 401. Although a criminal proceeding may be instituted in these cases by issuing a citation either by handing it to a defendant or placing it on a vehicle windshield, it is expected that many parking cases will be disposed of without a criminal proceeding under these rules. A parking ticket, which is not a citation, is used by a political subdivision and the defendant pays the amount specified on the ticket within the time specified.

Summary cases are cases in which all the offenses charged are either summary offenses, as defined in the Crimes Code, 18 Pa.C.S. § 106(c), or violations of ordinances for which imprisonment may be imposed upon conviction or upon failure to pay a fine or penalty. See Rule 103. Criminal proceedings in summary cases are to be brought under this chapter of the rules. If one or more of the offenses charged is a misdemeanor, felony, or murder, the case is a court case (see Rule 103) and proceeds under Chapter 5 of the rules. Ordinarily, any summary offenses in such a case, if known at the time, must be charged in the same complaint as the higher offenses and must be disposed of as part of the court case. See Commonwealth v. Campana, 455 Pa. 622, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808 (1973), on remand, 454 Pa. 233, 314 A.2d 854 (1974) (compulsory joinder rule) and Crimes Code § 110, 18 Pa.C.S. § 110. See also Commonwealth v. Caufman, 541 Pa. 299, 662 A.2d 1050 (1995).

In judicial districts in which there is a traffic court established pursuant to 42 Pa.C.S. § § 1301—1342, when a summary motor vehicle offense within the jurisdiction of the traffic court arises in the same criminal episode as another summary offense or a misdemeanor, felony, or murder offense, see 42 Pa.C.S. § 1302 and Commonwealth v. Masterson, 275 Pa. Super. 166, 418 A.2d 664 (1980).

The summary case rules are not intended to prohibit or to suspend any acknowledgment of guilt procedures that may be specifically authorized by statute. See, e.g., Section 926 of the Game and Wildlife Code, 34 Pa.C.S. § 926, and Section 925 of the Fish and Boat Code, 30 Pa.C.S. § 925. Furthermore, the use of a field acknowledgment of guilt pursuant to 34 Pa.C.S. § 926 or 30 Pa.C.S. § 925 should not be construed as the issuance of a citation for the purpose of instituting a summary case under these rules. See Rules 405 and 410.

The Rules of Criminal Procedure generally do not apply to juvenile proceedings. But see the Rules of Juvenile Court Procedure 105 (Search Warrants) and 396 (Bail). The Criminal Rules do apply to proceedings in summary cases involving defendants under 18 years of age to the extent that the Juvenile Act does not apply to such proceedings. See, e.g., Juvenile Act, 42 Pa.C.S. § § 6302, 6303, and 6326, Vehicle Code, 75 Pa.C.S. § 6303. See also 42 Pa.C.S. § § 1515(a)(1) and 6303(a)(5) concerning jurisdiction of summary offenses arising out of the same episode or transaction involving a delinquent act for which a petition alleging delinquency is filed.

See Section 1522 of the Judicial Code, 42 Pa.C.S. § 1522, concerning parental notification in certain summary cases involving defendants under 18 years of age.

Official Note

Previous Rule 51 adopted January 23, 1975, effective September 1, 1975; Comment revised January 28, 1983, effective July 1, 1983; Comment revised December 15, 1983, effective January 1, 1984; rescinded July 12, 1985, effective January 1, 1986; and replaced by present Rules 3, 51, 52, 55, 60, 65, 70, 75, and 95. Present Rule 51 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; Comment revised February 1, 1989, effective July 1, 1989; Comment revised January 31, 1991, effective July 1, 1991; Comment revised January 16, 1996, effective immediately; Comment revised June 6, 1997, effective immediately; renumbered Rule 400 and amended March 1, 2000, effective April 1, 2001; Comment revised February 6, 2003, effective July 1, 2003; Comment revised August 7, 2003, effective July 1, 2004; Comment revised April 1, 2005, effective October 1, 2005; Comment revised March 9, 2006, effective September 1, 2006.

Committee Explantory Reports:

Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).

Report explaining the January 16, 1996 Comment revisions published with the Court’s Order at 26 Pa.B. 437 (February 3, 1996).

Report explaining the June 6, 1997 Comment revision published with the Court’s Order at 25 Pa.B. 2923 (June 21, 1997).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the February 6, 2003 Comment revision concerning electronic transmission of citations published with the Court’s Order at 33 Pa.B. 973 (February 22, 2003).

Final Report explaining the August 7, 2003 changes to the last two paragraphs of the Comment concerning the Juvenile Act and the rules published with the Court’s Order at 33 Pa.B. 4293 (August 30, 2003).

Final Report explaining the April 1, 2005 Comment revision concerning Rules of Juvenile Court Procedure published with the Court’s Order at 35 Pa.B. 2213 (April 16, 2005).

Final Report explaining the March 3, 2006 Comment revision concerning summary motor vehicle offenses published with the Court’s Order at 36 Pa.B. 1392 (March 25, 2006).

The provisions of this Rule 400 amended February 6, 2003, effective July 1, 2003, 33 Pa.B. 969; amended August 11, 2003, effective July 1, 2003, 33 Pa.B. 4289; amended April 1, 2005, effective October 1, 2005, 35 Pa.B. 2210; amended March 9, 2006, effective September 1, 2006, 36 Pa.B. 1385. Immediately preceding text appears at serial pages (310523) to (310525).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 401 Means of Instituting Proceedings in Summary Cases Charging Parking Violations. {#sec-rule-401 omnilex-key=us-pa-regs-official--title-234--Rule 401}

(A) Political subdivisions may use parking tickets to inform defendants of parking violations and to offer defendants an opportunity to avoid criminal proceedings by paying an amount specified on the ticket within the time specified on the ticket.

(1) When a political subdivision does use parking tickets and a ticket has been handed to a defendant or placed on a vehicle windshield, a criminal proceeding shall be instituted only if the defendant fails to respond as requested on the ticket.

(2) When a defendant fails to respond to a parking ticket, the criminal proceeding shall be instituted either

(a) by a law enforcement officer filing a citation with the proper issuing authority, or

(b) by having the parking violation information electronically transmitted to the proper issuing authority.

Upon receipt of the citation or the electronically transmitted information, the issuing authority shall proceed as provided in Rule 411, and the case shall proceed in accordance with Rules 411—414.

(B) When a parking ticket has not been used, a criminal proceeding in a summary case charging a parking violation shall be instituted by a law enforcement officer issuing a citation either by handing it to a defendant or by placing it on a vehicle windshield.

(1) Upon the issuance of a citation, the case ordinarily shall proceed in the same manner as other summary cases instituted by issuing a citation to the defendant, in accordance with Rules 405—409.

(2) If the defendant fails to respond to the citation, the issuing authority shall issue a summons and the case shall then proceed in accordance with Rules 411—414 as if the proceedings were instituted by filing a citation, unless the issuing authority has reasonable grounds to believe that the defendant will not obey a summons, in which case an arrest warrant shall be issued and the case shall proceed in accordance with Rule 431.

Many political subdivisions use parking tickets and, therefore, many parking cases are disposed of without instituting a criminal proceeding under the procedures of these rules. A parking ticket is a device of convenience to the local government and the defendant. It is not a citation and does not constitute the instituting of a summary proceeding; no enforcement of penalty can be based upon a ticket alone.

The amount specified on a parking ticket cannot exceed the fine authorized for the parking violation alleged. There is no specific time that must be specified on the ticket, although, of course, it is advisable that such time be well within the applicable statute of limitations.

If the defendant pays the amount specified on the parking ticket within the time specified on the ticket, the case will be concluded without the institution of a criminal proceeding. If the defendant makes no response within the suggested time, or if the defendant indicates a desire to plead not guilty, and the subdivision desires to proceed with the case, a law enforcement officer must determine the identity of the vehicle owner from the Department of Transportation and then institute a criminal proceeding by either filing a citation directly with the proper issuing authority, or having the parking violation information electronically transmitted under paragraph (A) of this rule.

Although this rule and Rule 411 do not require that a citation be prepared when the parking violation information is transmitted electronically, a municipality, of course, may continue to have its officers prepare citations as provided in paragraph (A)(2)(a), and also electronically transmit the parking violation information.

When a parking ticket is not used and a criminal proceeding is instituted under paragraph (B) of this rule by issuing a citation to a defendant, if the defendant does not properly respond to the citation, the issuing authority must notify the law enforcement officer, who should obtain from the Department of Transportation the name of the owner of the vehicle. The law enforcement officer should immediately furnish this information to the issuing authority, who must then issue a summons or a warrant.

See Rule 130 for the ‘‘proper’’ issuing authority as used in these rules.

Official Note

Rule 95 adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended July 17, 1996, effective January 1, 1997; renumbered Rule 401 and amended March 1, 2000, effective April 1, 2001; amended February 6, 2003, effective July 1, 2003.

Committee Explanatory Reports:

Final Report explaining the July 17, 1996 amendments published with the Court’s Order at 26 Pa.B. 3629 (August 3, 1996).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the February 6, 2003 amendments clarifying the procedures for electronically transmitting parking violation information published with the Court’s Order at 33 Pa.B. 973 (February 22, 2003).

The provisions of this Rule 401 amended February 6, 2003, effective July 1, 2003, 33 Pa.B. 969. Immediately preceding text appears at serial pages (264179) to (264180).

This rule cited in 17 Pa. Code § 21.111 (relating to parking).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 402 Persons Who Shall Use Citations. {#sec-rule-402 omnilex-key=us-pa-regs-official--title-234--Rule 402}

Law enforcement officers shall ordinarily institute summary proceedings by citation.

It is intended that a wide variety of officials will have the authority to issue citations and shall do so as provided in these rules. Such authority is, of course, limited by the extent of the enforcement power given by law to such officials. ‘‘Law enforcement officer’’ includes ‘‘police officer.’’ See Rule 103.

Official Note

Previous rule, originally numbered Rule 132, adopted January 31, 1970, effective May 1, 1970; amended and renumbered Rule 52 September 18, 1973, effective January 1, 1974; amended January 23, 1975, effective September 1, 1975; Comment revised April 8, 1982, effective July 1, 1982; rescinded July 12, 1985, effective January 1, 1986 and replaced by present Rule 403. Present Rule 52 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; renumbered Rule 402 and Comment revised March 1, 2000. effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 403 Contents of Citation. {#sec-rule-403 omnilex-key=us-pa-regs-official--title-234--Rule 403}

(A) Every citation shall contain:

(1) the name and address of the organization, and badge number, if any, of the law enforcement officer;

(2) the name and address of the defendant;

(3) a notation if the defendant is under 18 years of age and whether the parents or guardians have been notified of the charge(s);

(4) the date and time when the offense is alleged to have been committed, provided however, if the day of the week is an essential element of the offense charged, such day must be specifically set forth;

(5) the place where the offense is alleged to have been committed;

(6) a citation of the specific section and subsection of the statute or ordinance allegedly violated, together with a summary of the facts sufficient to advise the defendant of the nature of the offense charged;

(7) the date of issuance;

(8) a notation if criminal laboratory services are requested in the case;

(9) a verification by the law enforcement officer that the facts set forth in the citation are true and correct to the officer’s personal knowledge, or information and belief, and that any false statements therein are made subject to the penalties of the Crimes Code, 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities; and

(10) a certification that the citation complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania regarding confidential information and documents.

(B) The copy delivered to the defendant shall also contain a notice to the defendant:

(1) that the original copy of the citation will be filed before the issuing authority of the magisterial district designated in the citation, the address and number of which shall be contained in the citation; and

(2) that the defendant shall, within 10 days after issuance of the citation:

(a) plead not guilty by:

(i) notifying the proper issuing authority in writing of the plea and forwarding as collateral for appearance at trial an amount equal to the fine and costs specified in the citation, plus any additional fee required by law. If the amount is not specified, the defendant shall forward the sum of $50 as collateral for appearance at trial; or

(ii) appearing before the proper issuing authority, entering the plea, and depositing such collateral for appearance at trial as the issuing authority shall require. If the defendant cannot afford to pay the collateral specified in the citation or the $50, the defendant must appear before the issuing authority to enter a plea; or

(b) plead guilty by:

(i) notifying the proper issuing authority in writing of the plea and forwarding an amount equal to the fine and costs when specified in the statute or ordinance, the amount of which shall be set forth in the citation; or

(ii) appearing before the proper issuing authority for the entry of the plea and imposition of sentence, when the fine and costs are not specified in the citation or when required to appear pursuant to Rules 409(B)(3), 414(B)(3), or 424(B)(3); or

(c) appear before the proper issuing authority to request consideration for inclusion in an accelerated rehabilitative disposition program;

(3) that all checks forwarded for the fine and costs or for collateral shall be made payable to the magisterial district number set forth on the citation;

(4) that failure to respond to the citation as provided above within the time specified:

(a) shall result in the issuance of a summons when a violation of an ordinance or any parking offense is charged, or when the defendant is under 18 years of age, and in all other cases shall result in the issuance of a warrant for the arrest of the defendant; and

(b) shall result in the suspension of the defendant’s driver’s license when a violation of the Vehicle Code is charged;

(5) that failure to indicate a plea when forwarding an amount equal to the fine and costs specified on the citation shall result in a guilty plea being recorded; and

(6) that, if the defendant is convicted or has pleaded guilty, the defendant may appeal within 30 days for a trial de novo.

A law enforcement officer may prepare, verify, and transmit a citation electronically. The law enforcement officer contemporaneously must give the defendant a paper copy of the citation containing all the information required by this rule. Nothing in this rule is intended to require the defendant to sign the citation.

See Rule 113.1 regarding the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania and the requirements regarding filings and documents that contain confidential information.

Paragraph (A)(3) requires the law enforcement officer who issues a citation to indicate on the citation if the defendant is a juvenile and, if so, whether the juvenile’s parents were notified. See the Judicial Code, 42 Pa.C.S. § 1522, concerning parental notification in certain summary cases involving juveniles.

Paragraph (A)(8) requires the law enforcement officer who issues a citation to indicate on the citation whether criminal laboratory services are requested in the case. This information is necessary to inform the magisterial district judge that, in addition to any fines, restitution, or costs, the magisterial district judge may be required to sentence the defendant to pay a criminal laboratory user fee. See 42 Pa.C.S. § 1725.3 which requires that a defendant be sentenced to pay a criminal laboratory user fee in certain specified cases when laboratory services are required to prosecute the case.

As provided in paragraph (B)(2)(b)(i), the defendant may plead guilty by mail only when the fine and costs are set forth in the citation. The law enforcement officer may specify the fine and costs in the citation only when the penalty provided by law does not include a possible sentence of imprisonment and the statute or ordinance fixes the specific amount for the fine.

Paragraph (B)(4)(a) provides for notice to the defendant who is under 18 years of age that a summons will be issued if the defendant fails to respond to the citation.

Paragraph (B)(4)(b) provides notice to the defendant that his or her license will be suspended if the defendant fails to respond to the citation or summons within the time specified in the rules. See 75 Pa.C.S. § 1533.

Paragraph (B)(5) provides a uniform procedure for handling cases in which a defendant returns the fine and costs but fails to sign the citation and, therefore, does not indicate a plea. See Rule 407.

Paragraph (B)(6) was amended in 2000 to make it clear in a summary criminal case that the defendant may file an appeal for a trial de novo following the entry of a guilty plea. See Rule 460 (Notice of Appeal).

It is intended that the notice to the defendant, required by paragraph (B) to be on the copy of the citation delivered to the defendant, shall be simply worded so the plain meaning of the notice is easily understandable.

For consequences of defects in a citation, see Rule 109.

With regard to the ‘‘proper’’ issuing authority as used in these rules, see Rule 130.

See Rule 401 for procedures for instituting cases in which there is a parking violation. When the parking violation information is electronically transmitted as permitted by Rule 401(A), only a summons is issued as provided in Rule 411.

Official Note

Previous rule, originally numbered Rule 133(a) and Rule 133(b), adopted January 31, 1970, effective May 1, 1970; renumbered Rule 53(a) and 53(b) September 18, 1973, effective January 1, 1974; amended January 23, 1975, effective September 1, 1975; Comment revised January 28, 1983, effective July 1, 1983; rescinded July 12, 1985, effective January 1, 1986, and not replaced in these rules. Present Rule 53 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended February 1, 1989, effective as to cases instituted on or after July 1, 1989; amended January 31, 1991, effective July 1, 1991; amended June 3, 1993, effective as to new citations printed on or after July 1, 1994; amended July 25, 1994, effective January 1, 1995; renumbered Rule 403 and Comment revised March 1, 2000, effective April 1, 2001; amended March 3, 2000, effective July 1, 2000; Comment revised February 6, 2003, effective July 1, 2003; amended August 7, 2003, effective July 1, 2004; amended January 26, 2007, effective February 1, 2008; amended June 1, 2018, effective July 1, 2018.

Committee Explanatory Reports:

Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).

Report explaining the June 3, 1993 amendments published with the Court’s Order at 23 Pa.B. 2809 (June 19, 1993).

Report explaining the July 25, 1994 amendments published with Court’s Order at 24 Pa.B. 4068 (August 13, 1994).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 3, 2000 amendments concerning appeals from guilty pleas published with the Court’s Order at 30 Pa.B. 1509 (March 18, 2000).

Final Report explaining the February 6, 2003 Comment revisions cross-referencing Rule 401 concerning electronic transmission of parking citations published with the Court’s Order at 33 Pa.B. 973 (February 22, 2003).

Final Report explaining the August 7, 2003 amendments to paragraph (B)(4)(a) concerning juveniles published with the Court’s Order at 33 Pa.B. 4293 (August 30, 2003).

Final Report explaining the January 26, 2007 amendments to paragraph (B)(2)(b)(ii) and revisions to the Comment published with the Court’s Order at 37 Pa.B. 760 (February 17, 2007).

Amendments regarding the Court’s public access policy published with the Court’s Order at 48 Pa.B. 3575 (June 16, 2018).

The provisions of this Rule 403 amended March 3, 2000, effective July 1, 2000, 30 Pa.B. 1508; amended February 6, 2003, effective July 1, 2003, 33 Pa.B. 969; amended August 11, 2003, effective July 1, 2004, 33 Pa.B. 4289; amended January 16, 2007, effective February 1, 2008, 37 Pa.B. 752; amended June 1, 2018, effective July 1, 2018, 48 Pa.B. 3575. Immediately preceding text appears at serial pages (378301) to (378302) and (326471) to (326472).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 405 Issuance of Citation. {#sec-rule-405 omnilex-key=us-pa-regs-official--title-234--Rule 405}

When a criminal proceeding in a summary case is instituted by issuing a citation to the defendant:

(1) the law enforcement officer who issues the citation shall exhibit an official sign of the officer’s authority; and

(2) the law enforcement officer contemporaneously shall give the defendant a paper copy of the citation containing all the information required by Rule 403.

A law enforcement officer may prepare, verify, and transmit a citation electronically.

A law enforcement officer may issue a citation based upon information that the defendant has committed a summary violation, which information may be received from a personal observation of the commission of the offense; a witness; another police officer; investigation; or speed-timing equipment, including radar. Contrast Commonwealth v. Hatfield, 453 A.2d 671 (Pa. Super. 1982), decided before the adoption of previous Rule 70 (Defects in Form, Content, or Procedure—Summary Cases) and the 1983 revision of the previous Comment.

It is preferable that a law enforcement officer making a stop for a traffic violation be in uniform.

The use of a field acknowledgment of guilt pursuant to Section 926 of the Game and Wildlife Code, 34 Pa.C.S. § 926, and Section 925 of the Fish and Boat Code, 30 Pa.C.S. § 925, should not be construed as the issuance of a citation for the purpose of instituting a summary case under these rules. See Rule 410.

Official Note

Previous rule, originally numbered Rule 135, adopted January 31, 1970, effective May 1, 1970; renumbered Rule 55 September 18, 1973, effective January 1, 1974; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule 58. Present Rule 55 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates are all extended to July 1, 1986; Comment revised February 11, 1989, effective July 1, 1989; Comment revised January 16, 1996, effective immediately; renumbered Rule 405 and Comment revised March 1, 2000, effective April 1, 2001; amended February 6, 2003, effective July 1, 2003.

Committee Explanatory Reports:

Report explaining the January 16, 1996 Comment revisions published with the Court’s Order at 26 Pa.B. 437 (February 3, 1996).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the February 6, 2003 amendments concerning issuance of citations published with the Court’s Order at 33 Pa.B. 973 (February 22, 2003).

The provisions of this Rule 405 amended February 6, 2003, effective July 1, 2003, 33 Pa.B. 969. Immediately preceding text appears at serial pages (264183) to (264184).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 406 Procedure Following Issuance of Citation. {#sec-rule-406 omnilex-key=us-pa-regs-official--title-234--Rule 406}

Within 5 days after a citation is issued to the defendant, the citation shall be filed with the proper issuing authority.

To satisfy the requirements of this rule, the law enforcement officer may prepare, verify, and transmit the citation information electronically.

These rules are not intended to require the law enforcement officer who issued the citation to personally file the citation.

It is intended that the citation be filed as soon as is practical so the issuing authority may process the case. However, failure to comply with the 5-day limit is not intended to be grounds for dismissal, unless the defendant is prejudiced by the delay. See Rule 109.

With regard to the ‘‘proper’’ issuing authority as used in these rules, see Rule 130.

Official Note

Previous rule, originally numbered Rule 137, adopted January 31, 1970, effective May 1, 1970; renumbered Rule 56 and paragraph (d) amended September 18, 1973, effective January 1, 1974; rescinded July 12, 1985, effective January 1, 1986; and replaced by present Rule 59. Present Rule 56 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; renumbered Rule 406 and amended March 1, 2000, effective April 1, 2001; amended February 6, 2003, effective July 1, 2003.

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 6, 2003 changes concerning the electronic preparation, verification, and transmission of citations published with the Court’s Order at 33 Pa.B. 973 (February 22, 2003).

The provisions of this Rule 406 amended February 6, 2003, effective July 1, 2003, 33 Pa.B. 969. Immediately preceding text appears at serial page (264184).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 407 Pleas in Response to Citation. {#sec-rule-407 omnilex-key=us-pa-regs-official--title-234--Rule 407}

Within 10 days after issuance of a citation, the defendant shall notify the issuing authority by mail or in person that the defendant either pleads not guilty or pleads guilty.

For the consequences of failure to respond as provided in this rule, see Rules 430 and 431.

To notify the issuing authority of the plea, the defendant should sign and return the citation. When a defendant fails to sign the citation to indicate the plea, the issuing authority should record the unsigned citation as a guilty plea. See Rule 403(B)(5).

Official Note

Previous Rule 57 adopted September 18, 1973, effective January 1, 1974; title of rule amended January 23, 1975, effective September 1, 1975; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rules 411—414 and 421—424. Present Rule 57 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended February 1, 1989, effective as to cases instituted on or after July 1, 1989; renumbered Rule 407 and amended March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 408 Not Guilty Pleas—Notice of Trial. {#sec-rule-408 omnilex-key=us-pa-regs-official--title-234--Rule 408}

(A) A defendant may plead not guilty by:

(1) appearing before the issuing authority, entering the plea, and depositing such collateral for appearance at trial as the issuing authority shall require; or

(2) notifying the issuing authority in writing of the plea and forwarding as collateral for appearance at trial an amount equal to the fine and costs specified in the citation, plus any additional fee required by law. If the fine and costs are not specified, the defendant shall forward the sum of $50 as collateral for appearance at trial.

(B) The issuing authority, upon receiving a plea of not guilty, shall:

(1) fix a date and hour for trial;

(2) notify the defendant and the law enforcement officer of the date and hour fixed for trial; and

(3) advise the defendant that failure to appear for trial shall constitute consent to trial in the defendant’s absence and if the defendant is found guilty, the collateral deposited shall be forfeited and applied toward the fine, costs, and restitution, and the defendant shall have the right to appeal within 30 days for a trial de novo.

It is intended that the defendant will appear in person before the issuing authority to plead not guilty when the defendant cannot afford to deposit the amount of collateral specified in the citation or the $50 when no amount is specified. A plea entered by mail must be accompanied by the full amount of collateral. See Rule 452. All checks deposited as collateral shall be made payable to the magisterial district number set forth on the citation.

When fixing the date and hour for trial, the issuing authority should determine whether the trial must be delayed because the defendant’s criminal record must be ascertained prior to trial as specifically required by statute for purposes of grading the offense charged.

Paragraph (B)(3) was amended in 2016 to clarify that collateral may be forfeited for the payment of restitution as well as for the fine and costs that have been assessed by an issuing authority. See 18 Pa.C.S. § 1106(d) for the authority of a magisterial district judge to impose restitution on a defendant.

Official Note

Previous Rule 58, adopted September 18, 1973, effective January 1, 1974; amended to correct printing error June 28, 1976, effective immediately; rescinded July 12, 1985, effective January 1, 1986, and not replaced in the present rules. Present Rule 58 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; renumbered Rule 408 and amended March 1, 2000, effective April 1, 2001; amended June 10, 2016, effective August 1, 2016.

Committee Explanatory Reports:

Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the June 10, 2016 amendments clarifying that forfeited collateral may be applied to restitution published with the Court’s Order at 46 Pa.B. 3238 (June 25, 2016).

The provisions of this Rule 408 amended June 10, 2016, effective August 1, 2016, 46 Pa.B. 3235. Immediately preceding text appears at serial pages (326474) and (380191).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 409 Guilty Pleas. {#sec-rule-409 omnilex-key=us-pa-regs-official--title-234--Rule 409}

(A) A defendant may plead guilty by:

(1) notifying the issuing authority in writing of the plea and forwarding to the issuing authority an amount equal to the fine and costs specified in the citation; or

(2) appearing before the issuing authority for the entry of the plea and imposition of sentence when the fine and costs are not specified in the citation or after receipt of notice that a guilty plea by mail has not been accepted by the issuing authority pursuant to paragraph (B)(3).

(B) When the defendant pleads guilty pursuant to paragraph (A)(1):

(1) The defendant must sign the guilty plea acknowledging that the plea is entered voluntarily and understandingly.

(2) The issuing authority may issue a warrant for the arrest of the defendant as provided in Rules 430 and 431 if the amount forwarded with the plea is less than the amount of the fine and costs specified in the citation.

(3) Restrictions on the acceptance of guilty plea by mail:

(a) The issuing authority shall not accept a guilty plea that is submitted by mail when the offense carries a mandatory sentence of imprisonment.

(b) In those cases in which the charge carries a possible sentence of imprisonment, the issuing authority may accept a guilty plea submitted by mail.

(c) In any case in which the issuing authority does not accept a guilty plea submitted by mail, the issuing authority shall notify the defendant (1) that the guilty plea has not been accepted, (2) to appear personally before the issuing authority on a date and time certain, and (3) of the right to counsel. Notice of the rejection of the guilty plea by mail also shall be provided to the affiant.

(C) When the defendant is required to personally appear before the issuing authority to plead guilty pursuant to paragraph (A)(2), the issuing authority shall:

(1) advise the defendant of the right to counsel when there is a likelihood of imprisonment and give the defendant, upon request, a reasonable opportunity to secure counsel;

(2) determine by inquiring of the defendant that the plea is voluntarily and understandingly entered;

(3) have the defendant sign the plea form with a representation that the plea is entered voluntarily and understandingly;

(4) impose sentence, or, in cases in which the defendant may be sentenced to intermediate punishment, the issuing authority may delay the proceedings pending confirmation of the defendant’s eligibility for intermediate punishment; and

(5) provide for installment payments when a defendant who is sentenced to pay a fine and costs is without the financial means immediately to pay the fine and costs.

The rule was amended in 2007 to make it clear (1) that a defendant may not enter a guilty plea by mail to an offense that carries a mandatory sentence of imprisonment, and (2) in those cases in which the offense carries a possible sentence of imprisonment, the issuing authority has the discretion whether or not to accept a guilty plea submitted by mail.

Nothing in this rule is intended to require that an issuing authority should proceed as provided in paragraph (C) when the defendant returns the written guilty plea and the fine and costs in person to the issuing authority’s office pursuant to paragraphs (A)(1) and (B). The issuing authority’s staff should record receipt of the plea and monies in the same manner as those received by mail.

Paragraph (C)(4) was added in 2007 to permit an issuing authority to delay imposition of sentence in order to investigate a defendant’s eligibility for intermediate punishment. For example, under 42 Pa.C.S. § 9763 and § 9804, defendants may be sentenced to intermediate punishment for certain offenses, including summary violations of 75 Pa.C.S. § 1543(b) (driving while license is under a DUI-related suspension) but only if they meet certain eligibility requirements, such as undergoing a drug and alcohol assessment. Often this information will not be available to the issuing authority at the time of sentencing, especially when the defendant appears personally to enter a guilty plea.

When the defendant was under 18 years of age at the time of the offense and is charged with a summary offense that would otherwise carry a mandatory sentence of imprisonment as prescribed by statute, the issuing authority is required to conduct the summary trial but may not sentence the defendant to a term of imprisonment. See 42 Pa.C.S. § § 6302 and 6303 and 75 Pa.C.S. § 6303(b).

See Rule 454(F) for the information that must be included in the sentencing order when restitution is included in the sentence.

For the procedure upon default in payment of the fine or costs, see Rule 456.

For appeal procedures in summary cases, see Rules 460, 461, and 462.

For procedures regarding arrest warrants, see Rules 430 and 431.

Concerning the appointment or waiver of counsel, see Rules 121 and 122.

Official Note

Previous Rule 59 adopted September 18, 1973, effective January 1, 1974; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule 75. Present Rule 59 adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986. The January 1, 1986 effective dates are all extended to July 1, 1986; amended May 28, 1987, effective July 1, 1987; amended January 31, 1991, effective July 1, 1991; renumbered Rule 409 and amended March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; amended January 26, 2007, effective February 1, 2008; Comment revised July 17, 2013, effective August 17, 2013; Comment revised March 9, 2016, effective July 1, 2016.

Committee Explanatory Reports:

Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the August 7, 2003 new Comment language concerning defendants under the age of 18 published with the Court’s Order at 33 Pa.B. 4293 (August 30, 2003).

Final Report explaining the January 26, 2007 amendments to paragraphs (A)(2), (B)(3), and (C)(4) published with the Court’s Order at 37 Pa.B. 760 (February 17, 2007).

Final Report explaining the July 17, 2013 Comment revision concerning mandatory incarceration offenses and juveniles published with the Court’s Order at 43 Pa.B. 4325 (August 3, 2013).

Final Report explaining the March 9, 2016 Comment revision concerning the Rule 454 restitution procedures published with the Court’s Order at 46 Pa.B. 1540 (March 26, 2016).

The provisions of this Rule 409 amended August 7, 2003, effective July 1, 2004, 33 Pa.B. 4289; amended January 16, 2007, effective February 1, 2008, 37 Pa.B. 752; amended July 17, 2013, effective August 17, 2013, 43 Pa.B. 4323; amended March 9, 2016, effective July 1, 2016, 46 Pa.B. 1532. Immediately preceding text appears at serial pages (326475) to (326476) and (368071) to (368072).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 410 Filing of Citation. {#sec-rule-410 omnilex-key=us-pa-regs-official--title-234--Rule 410}

When it is not feasible to issue the citation to the defendant or when evidence is discovered after the issuance of a citation that gives rise to additional summary charges against the defendant resulting from the same incident, a law enforcement officer shall institute a criminal proceeding in a summary case by filing a citation with the proper issuing authority.

Filing as used in this rule includes electronically transmitting the citation or parking ticket information.

A law enforcement officer should file a citation with the issuing authority when, due to the circumstances of the case, the law enforcement officer is unable to issue the citation directly to the defendant at the time of the offense. Examples of situations when the law enforcement officer would be unable to issue a citation include, but are not limited to, when the officer receives information that the defendant has committed a summary violation from a witness but the defendant is not then present; when a witness is not present at the scene and the officer wants to question the witness before completing the investigation; or when the officer is summoned to another case that requires prompt action. See Section 902 of the Game and Wildlife Code, 34 Pa.C.S. § 902, which provides, inter alia, that ‘‘Deputy Wildlife Conservation Officers shall not be authorized to issue citations . . . and shall provide the information to the Wildlife Conservation Officer.’’ Under this statute, it would not be feasible for the Deputy Wildlife Conservation Officer to issue the citation, and, therefore, pursuant to this rule, the citation would be filed.

When a defendant acknowledges guilt pursuant to Section 926 of the Game and Wildlife Code, 34 Pa.C.S. § § 926, or Section 925 of the Fish and Boat Code, 30 Pa.C.S. § 925, but does not pay the fine and costs or the check issued for the fine and costs cannot be cashed, the officer of the commission should file a citation with the issuing authority to institute a summary criminal proceeding.

When determining whether the filing of a citation was the correct procedure under the rules, the courts have considered whether there was a reasonable basis for filing, whether there were compelling reasons to prevent issuing the citation, and whether the defendant was prejudiced by the filing. See, e.g., Commonwealth v. Odle, 16 D.&C. 3d 750 (Cambria County 1980); Commonwealth v. Lombardo, 4 D.&C. 3d 106 (Clearfield County 1977). See also Rule 109 that permits discharge or dismissal when the institution of proceedings by incorrect means is prejudicial to the rights of the defendant.

When evidence is discovered after the issuance of a citation that gives rise to additional charges against the defendant resulting from the same incident, the law enforcement officer must file with the issuing authority an additional citation alleging such additional summary offenses, or a complaint when the additional charges include a misdemeanor or felony. For proceedings on such charges when a complaint is filed, see Chapter 5 of these rules.

With regard to the ‘‘proper’’ issuing authority as used in these rules, see Rule 130.

Official Note

Previous rule, originally adopted as Rule 116 June 30, 1964, effective January 1, 1965; suspended effective May 1, 1970; readopted January 31, 1970, effective May 1, 1970, renumbered as Rule 60 and amended to apply only to summary cases September 18, 1973, effective January 1, 1974; amended April 26, 1979, effective July 1, 1979; amended January 28, 1983, effective July 1, 1983; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule 76. Present Rule 60 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates are all extended to July 1, 1986; Comment revised February 1, 1989, effective July 1, 1989; Comment revised August 13, 1999, effective immediately; renumbered Rule 410 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised February 6, 2003, effective July 1, 2003.

Committee Explanatory Reports:

Final Report explaining the August 13, 1999 revision of the Comment concerning 34 Pa.C.S. § 902 published with the Court’s Order at 29 Pa.B. 4543 (August 28, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the February 6, 2003 Comment revision concerning filing published with the Court’s Order at 33 Pa.B. 973 (February 22, 2003).

The provisions of this Rule 410 amended February 6, 2003, effective July 1, 2003, 33 Pa.B. 969. Immediately preceding text appears at serial pages (264187) to (264188).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 411 Procedures Following Filing of Citation—Issuance of Summons. {#sec-rule-411 omnilex-key=us-pa-regs-official--title-234--Rule 411}

(A) Upon the filing of the citation, including receipt of electronically transmitted citation or parking violation information, the issuing authority shall issue a summons commanding the defendant to respond within 10 days of receipt of the summons, unless the issuing authority has reasonable grounds to believe that the defendant will not obey a summons in which case an arrest warrant shall be issued. The summons shall be served as provided in these rules.

(B) A copy of the citation shall be served with the summons, except in cases charging parking violations when the parking violation information is electronically filed.

(C) In cases charging parking violations in which the parking violation information is electronically filed, the summons also shall include:

(1) the date, time, and location of the parking violation;

(2) a description of the vehicle and the license number; and

(3) a description of the parking violation.

No fine or costs should be specified in the summons in cases in which the issuing authority determines that there is a likelihood of imprisonment.

This rule facilitates the electronic transmission of parking violation information by (1) eliminating the requirement that a copy of the citation be served with the summons in cases in which the parking violation information is electronically filed pursuant to Rule 401(A), and (2) requiring additional information be added to the summons. See Rule 401 (Proceedings in Summary Cases Charging Parking Violations). However, nothing in this rule or Rule 401 is intended to preclude a municipality from continuing to have its officers prepare a citation in addition to electronically transmitting the parking violation information.

Official Note

Previous Rule 117, adopted June 30, 1964, effective January 1, 1965; suspended effective May 1, 1970; revised January 31, 1970, effective May 1, 1970; renumbered and amended to apply only to summary cases September 18, 1973, effective January 1, 1974;amended April 26, 1979, effective July 1, 1979; amended January 28, 1983, effective July 1, 1983; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule 76. Present Rule 61 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended July 17, 1996, effective January 1, 1997; renumbered Rule 411 and Comment revised March 1, 2000, effective April 1, 2001; amended February 6, 2003, effective July 1, 2003.

Committee Explanatory Reports:

Final Report explaining the July 17, 1996 amendments published with the Court’s Order at 26 Pa.B. 3629 (August 3, 1996).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the February 6, 2003 amendments concerning electronic transmission of citation and parking violation information published with the Court’s Order at 33 Pa.B. 973 (February 22, 2003).

The provisions of this Rule 411 amended February 6, 2003, effective July 1, 2003, 33 Pa.B. 969. Immediately preceding text appears at serial pages (264188) to (264189).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 412 Pleas in Response to Summons. {#sec-rule-412 omnilex-key=us-pa-regs-official--title-234--Rule 412}

Within 10 days after receipt of a summons, the defendant shall notify the issuing authority by mail or in person that the defendant either pleads not guilty or pleads guilty.

To notify the issuing authority of the plea, the defendant should sign and return the summons. When a defendant fails to sign the summons to indicate the plea, the issuing authority should record the unsigned summons as a guilty plea. See Rule 403(B)(5).

For the consequences of failure to respond as provided in this rule, see Rule 430(A).

Official Note

Previous rule, originally numbered Rule 118 and 118(b), adopted June 30, 1964, effective January 1, 1965; suspended effective May 1, 1970; revised January 31, 1970, effective May 1, 1970; renumbered as Rule 62 and amended to apply only to summary cases September 18, 1973, effective January 1, 1974; amended April 26, 1979, effective July 1, 1979; amended April 24, 1981, effective July 1, 1981; amended January 28, 1983, effective July 1, 1983; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule 441. Present Rule 62 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended February 1, 1989, effective as to cases instituted on or after July 1, 1989; renumbered Rule 412 and amended March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 413 Not Guilty Pleas—Notice of Trial. {#sec-rule-413 omnilex-key=us-pa-regs-official--title-234--Rule 413}

(A) A defendant may plead not guilty by:

(1) appearing before the issuing authority, entering the plea, and depositing such collateral for appearance at trial as the issuing authority shall require; or

(2) notifying the issuing authority in writing of the plea and forwarding as collateral for appearance at trial an amount equal to the fine and costs specified in the summons, plus any additional fee required by law. If the fine and costs are not specified, the defendant shall forward the sum of $50 as collateral for appearance at trial.

(B) The issuing authority, upon receiving a plea of not guilty, shall:

(1) fix a date and hour for trial;

(2) notify the defendant and the law enforcement officer of the date and hour fixed for the trial; and

(3) advise the defendant that failure to appear for trial shall constitute consent to trial in the defendant’s absence and if the defendant is found guilty, the collateral deposited shall be forfeited and applied toward the fine, costs, and restitution, and the defendant shall have the right to appeal within 30 days for a trial de novo.

It is intended that the defendant will appear in person before the issuing authority to plead not guilty when the defendant cannot afford to deposit the amount of collateral specified in the summons or the $50 when no amount is specified. A plea entered by mail must be accompanied by the full amount of collateral. See Rule 452. All checks for collateral shall be made payable to the magisterial district number set forth on the summons.

When fixing the date and hour for trial, the issuing authority should determine whether the trial must be delayed because the defendant’s criminal record must be ascertained prior to trial as specifically required by statute for purposes of grading the offense charged.

Paragraph (B)(3) was amended in 2016 to clarify that collateral may be forfeited for the payment of restitution as well as for the fine and costs that have been assessed by an issuing authority. See 18 Pa.C.S. § 1106(d) for the authority of a magisterial district judge to impose restitution on a defendant.

Official Note

Previous rule, originally numbered Rules 141 and 142, adopted January 31, 1970, effective May 1, 1970; combined, and renumbered Rule 63, and amended September 18, 1973, effective January 1, 1974; amended April 26, 1979, effective July 1, 1979; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule 454. Present Rule 63 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; renumbered Rule 413 and amended March 1, 2000, effective April 1, 2001; amended June 10, 2016, effective August 1, 2016.

Committee Explanatory Reports:

Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. (February 16, 1991).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the June 10, 2016 amendments clarifying that forfeited collateral may be applied to restitution published with the Court’s Order at 46 Pa.B. 3238 (June 25, 2016).

The provisions of this Rule 413 amended June 10, 2016, effective August 1, 2016, 46 Pa.B. 3235. Immediately preceding text appears at serial pages (326480) and (380195).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 414 Guilty Pleas. {#sec-rule-414 omnilex-key=us-pa-regs-official--title-234--Rule 414}

(A) A defendant may plead guilty by:

(1) notifying the issuing authority in writing of the plea and forwarding to the issuing authority an amount equal to the fine and costs specified in the summons; or

(2) appearing before the issuing authority for the entry of the plea and imposition of sentence when the fine and costs are not specified in the summons or after receipt of notice that a guilty plea by mail has not been accepted by the issuing authority pursuant to paragraph (B)(3).

(B) When the defendant pleads guilty pursuant to paragraph (A)(1):

(1) The defendant must sign the guilty plea acknowledging that the plea is entered voluntarily and understandingly.

(2) The issuing authority may issue a warrant for the arrest of the defendant as provided in Rules 430 and 431 if the amount forwarded with the plea is less than the amount of the fine and costs specified in the summons.

(3) Restrictions on the acceptance of guilty plea by mail:

(a) The issuing authority shall not accept a guilty plea that is submitted by mail when the offense carries a mandatory sentence of imprisonment.

(b) In those cases in which the charge carries a possible sentence of imprisonment, the issuing authority may accept a guilty plea submitted by mail.

(c) In any case in which the issuing authority does not accept a guilty plea submitted by mail, the issuing authority shall notify the defendant (1) that the guilty plea has not been accepted, (2) to appear personally before the issuing authority on a date and time certain, and (3) of the right to counsel. Notice of the rejection of the guilty plea by mail also shall be provided to the affiant.

(C) When the defendant is required to personally appear before the issuing authority to plead guilty pursuant to paragraph (A)(2) the issuing authority shall:

(1) advise the defendant of the right to counsel when there is a likelihood of imprisonment and give the defendant, upon request, a reasonable opportunity to secure counsel;

(2) determine by inquiring of the defendant that the plea is voluntarily and understandingly entered;

(3) have the defendant sign the plea form with a representation that the plea is entered voluntarily and understandingly;

(4) impose sentence, or, in cases in which the defendant may be sentenced to intermediate punishment, the issuing authority may delay the proceedings pending confirmation of the defendant’s eligibility for intermediate punishment; and

(5) provide for installment payments when a defendant who is sentenced to pay a fine and costs is without the financial means immediately to pay the fine and costs.

The rule was amended in 2007 to make it clear (1) that a defendant may not enter a guilty plea by mail to an offense that carries a mandatory sentence of imprisonment, and (2) in those cases in which the offense carries a possible sentence of imprisonment, the issuing authority has the discretion whether or not to accept a guilty plea submitted by mail.

Nothing in this rule is intended to require that an issuing authority should proceed as provided in paragraph (C) when the defendant returns the written guilty plea and the fine and costs in person to the issuing authority’s office pursuant to paragraphs (A)(1) and (B). The issuing authority’s staff should record receipt of the plea and monies in the same manner as those received by mail.

Paragraph (C)(4) was added in 2007 to permit an issuing authority to delay imposition of sentence in order to investigate a defendant’s eligibility for intermediate punishment. For example, under 42 Pa.C.S. § 9763 and § 9804, defendants may be sentenced to intermediate punishment for certain offenses, including summary violations of 75 Pa.C.S. § 1543(b) (driving while license is under a DUI-related suspension) but only if they meet certain eligibility requirements, such as undergoing a drug and alcohol assessment. Often this information will not be available to the issuing authority at the time of sentencing, especially when the defendant appears personally to enter a guilty plea.

When the defendant was under 18 years of age at the time of the offense and is charged with a summary offense that would otherwise carry a mandatory sentence of imprisonment as prescribed by statute, the issuing authority is required to conduct the summary trial but may not sentence the defendant to a term of imprisonment. See 42 Pa.C.S. § § 6302 and 6303 and 75 Pa.C.S. § 6303(b).

See Rule 454(F) for the information that must be included in the sentencing order when restitution is included in the sentence.

For the procedure upon default in payment of the fine or costs, see Rule 456.

For appeal procedures in summary cases, see Rules 460, 461, and 462.

For arrest warrant procedures, see Rules 430 and 431.

Concerning the appointment or waiver of counsel, see Rules 121 and 122.

Official Note

Previous rule, originally numbered Rule 136, adopted January 31, 1970, effective May 1, 1970; renumbered Rule 64 September 18, 1973, effective January 1, 1974; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule 84. Present Rule 64 adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended May 28, 1987, effective July 1, 1987; amended January 31, 1991, effective July 1, 1991; renumbered Rule 414 and amended March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; amended January 26, 2007, effective February 1, 2008; Comment revised July 17, 2013, effective August 17, 2013; Comment revised March 9, 2016, effective July 1, 2016.

Committee Explanatory Reports:

Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the August 7, 2002 new Comment language concerning defendants under the age of 18 published with the Court’s Order at 33 Pa.B. 4293 (August 30, 2003).

Final Report explaining the January 26, 2007 amendments to paragraphs (A)(2), (B)(3), and (C)(4) published with the Court’s Order at 37 Pa.B. 760 (February 17, 2007).

Final Report explaining the July 17, 2013 Comment revision concerning mandatory incarceration offenses and juveniles published with the Court’s Order at 43 Pa.B. 4325 (August 3, 2013).

Final Report explaining the March 9, 2016 Comment revision concerning the Rule 454 restitution procedures published with the Court’s Order at 46 Pa.B. 1540 (March 26, 2016).

The provisions of this Rule 414 amended August 11, 2003, effective July 1, 2004, 33 Pa.B. 4289; amended January 16, 2007, effective February 1, 2008, 37 Pa.B. 752; amended July 17, 2013, effective August 17, 2013, 43 Pa.B. 4323; amended March 9, 2016, effective July 1, 2016, 46 Pa.B. 1532. Immediately preceding text appears at serial pages (326481) to (326482) and (368073) to (368074).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 420 Filing of Complaint. {#sec-rule-420 omnilex-key=us-pa-regs-official--title-234--Rule 420}

When the affiant is not a law enforcement officer, the affiant shall institute a criminal proceeding in a summary case by filing a complaint with the proper issuing authority.

With regard to the ‘‘proper’’ issuing authority as used in these rules, see Rule 130.

Complaints filed pursuant to this rule are public records. However, in addition to restrictions placed by law and rule on the disclosure of confidential information, the filings required by this rule are subject to the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania and may require further precautions, such as placing certain types of information in a ‘‘Confidential Information Form’’. See Rule 113.1.

The provisions of this Rule 420 amended June 1, 2018, effective July 1, 2018, 48 Pa.B. 3575; amended December 1, 2021, effective January 2022, 51 Pa.B. 7622. Immediately preceding text appears at serial page (392750).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 421 Procedure Following Filing of Complaint—Issuance of Summons. {#sec-rule-421 omnilex-key=us-pa-regs-official--title-234--Rule 421}

Upon filing of a complaint, the issuing authority shall decide whether to issue process. If the issuing authority decides to issue process, a summons shall be issued, unless the issuing authority has reasonable grounds to believe that the defendant will not obey a summons, in which case an arrest warrant shall be issued. The summons shall be served as provided in these rules. A copy of the complaint shall be served with the summons.

The district attorney may in the district attorney’s discretion require review of any summary complaint prior to its being submitted to the issuing authority. The district attorney must undertake such review in court cases under Rule 506.

No fine or costs should be specified in the summons in cases in which the issuing authority determines that there is a likelihood of imprisonment.

Official Note

Previous rule, originally numbered Rule 139, adopted January 31, 1970, effective May 1, 1970; renumbered Rule 66 September 18, 1973, effective January 1, 1974; rescinded July 12, 1985, effective January 1, 1986, and not replaced in the present rules. Present Rule 66 adopted July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; Comment revised February 1, 1989, effective July 1, 1989; Comment revised August 9, 1994, effective January 1, 1995; renumbered Rule 421 and Comment revised March 1, 2000, effective April 1, 2001.

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).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 422 Pleas in Response to Summons. {#sec-rule-422 omnilex-key=us-pa-regs-official--title-234--Rule 422}

Within 10 days after receipt of a summons, the defendant shall notify the issuing authority by mail or in person that the defendant either pleads not guilty or pleads guilty.

To notify the issuing authority of the plea, the defendant should sign and return the summons. When a defendant fails to sign the summons to indicate the plea, the issuing authority should record the unsigned summons as a guilty plea. See Rule 403(B)(5).

For the consequences of failure to respond as provided in this rule, see Rule 430(A).

Official Note

Previous Rule 67, adopted September 18, 1973, effective January 1, 1974; amended May 26, 1977, effective July 1, 1977; amended April 26, 1979, effective July 1, 1979; Comment revised April 24, 1981, effective July 1, 1981; Comment revised January 28, 1983, effective July 1, 1983; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rules 460, 461, and 462. Present Rule 67 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended February 1, 1989, effective as to cases instituted on or after July 1, 1989; renumbered Rule 422 and amended March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 423 Not Guilty Pleas—Notice of Trial. {#sec-rule-423 omnilex-key=us-pa-regs-official--title-234--Rule 423}

(A) A defendant may plead not guilty by:

(1) appearing before the issuing authority, entering the plea, and depositing such collateral for appearance at trial as the issuing authority shall require; or

(2) notifying the issuing authority in writing of the plea and forwarding as collateral for appearance at trial an amount equal to the fine and costs specified in the summons, plus any additional fee required by law. If the fine and costs are not specified, the defendant shall forward the sum of $50 as collateral for appearance at trial.

(B) The issuing authority, upon receiving a plea of not guilty, shall:

(1) fix a date and hour for trial;

(2) notify the defendant and the affiant of the date and hour fixed for the trial; and

(3) advise the defendant that failure to appear for trial shall constitute consent to trial in the defendant’s absence and if the defendant is found guilty, the collateral deposited shall be forfeited and applied toward the fine, costs, and restitution, and the defendant shall have the right to appeal within 30 days for a trial de novo.

It is intended that the defendant will appear in person before the issuing authority to plead not guilty when the defendant cannot afford to deposit the amount of collateral specified in the summons or the $50 when no amount is specified. A plea entered by mail must be accompanied by the full amount of collateral. See Rule 452. All checks for collateral shall be made payable to the magisterial district number set forth on the summons.

When fixing the date and hour for trial, the issuing authority should determine whether the trial must be delayed because the defendant’s criminal record must be ascertained prior to trial as specifically required by statute for purposes of grading the offenses charged.

Paragraph (B)(3) was amended in 2016 to clarify that collateral may be forfeited for the payment of restitution as well as for the fine and costs that have been assessed by an issuing authority. See 18 Pa.C.S. § 1106(d) for the authority of a magisterial district judge to impose restitution on a defendant.

Official Note

Previous Rule 68 adopted September 18, 1973, effective January 1, 1974; rescinded July 12, 1985, effective January 1, 1986, and not replaced in the present rules. Present Rule 68 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; renumbered Rule 423 and amended March 1, 2000, effective April 1, 2001; amended June 10, 2016, effective August 1, 2016.

Committee Explanatory Reports:

Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the June 10, 2016 amendments clarifying that forfeited collateral may be applied to restitution published with the Court’s Order at 46 Pa.B. 3238 (June 25, 2016).

The provisions of this Rule 423 amended June 10, 2016, effective August 1, 2016, 46 Pa.B. 3235. Immediately preceding text appears at serial pages (360843) to (360844).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 424 Guilty Pleas. {#sec-rule-424 omnilex-key=us-pa-regs-official--title-234--Rule 424}

(A) A defendant may plead guilty by:

(1) notifying the issuing authority in writing of the plea and forwarding to the issuing authority an amount equal to the fine and costs specified in the summons; or

(2) appearing before the issuing authority for the entry of the plea and imposition of sentence when the fine and costs are not specified in the summons or after receipt of notice that a guilty plea by mail has not been accepted by the issuing authority pursuant to paragraph (B)(3).

(B) When the defendant pleads guilty pursuant to paragraph (A)(1):

(1) The defendant must sign the guilty plea acknowledging that the plea is entered voluntarily and understandingly.

(2) The issuing authority may issue a warrant for the arrest of the defendant as provided in Rules 430 and 431 if the amount forwarded with the plea is less than the amount of the fine and costs specified in the summons.

(3) Restrictions on the acceptance of guilty plea by mail:

(a) The issuing authority shall not accept a guilty plea that is submitted by mail when the offense carries a mandatory sentence of imprisonment.

(b) In those cases in which the charge carries a possible sentence of imprisonment, the issuing authority may accept a guilty plea submitted by mail.

(c) In any case in which the issuing authority does not accept a guilty plea submitted by mail, the issuing authority shall notify the defendant (1) that the guilty plea has not been accepted, (2) to appear personally before the issuing authority on a date and time certain, and (3) of the right to counsel. Notice of the rejection of the guilty plea by mail also shall be provided to the affiant.

(C) When the defendant is required to personally appear before the issuing authority to plead guilty pursuant to paragraph (A)(2), the issuing authority shall:

(1) advise the defendant of the right to counsel when there is a likelihood of imprisonment and give the defendant, upon request, a reasonable opportunity to secure counsel;

(2) determine by inquiring of the defendant that the plea is voluntarily and understandingly entered;

(3) have the defendant sign the plea form with a representation that the plea is entered voluntarily and understandingly;

(4) impose sentence, or, in cases in which the defendant may be sentenced to intermediate punishment, the issuing authority may delay the proceedings pending confirmation of the defendant’s eligibility for intermediate punishment; and

(5) provide for installment payments when a defendant who is sentenced to pay a fine and costs is without the financial means immediately to pay the fine and costs.

The rule was amended in 2007 to make it clear (1) that a defendant may not enter a guilty plea by mail to an offense that carries a mandatory sentence of imprisonment, and (2) in those cases in which the offense carries a possible sentence of imprisonment, the issuing authority has the discretion whether or not to accept a guilty plea submitted by mail.

Nothing in this rule is intended to require that an issuing authority should proceed as provided in paragraph (C) when the defendant returns the written guilty plea and the fine and costs in person to the issuing authority’s office pursuant to paragraphs (A)(1) and (B). The issuing authority’s staff should record receipt of the plea and monies in the same manner as those received by mail.

Paragraph (C)(4) was added in 2007 to permit an issuing authority to delay imposition of sentence in order to investigate a defendant’s eligibility for intermediate punishment. For example, under 42 Pa.C.S. § 9763 and § 9804, defendants may be sentenced to intermediate punishment for certain offenses, including summary violations of 75 Pa.C.S. § 1543(b) (driving while license is under a DUI-related suspension) but only if they meet certain eligibility requirements, such as undergoing a drug and alcohol assessment. Often this information will not be available to the issuing authority at the time of sentencing, especially when the defendant appears personally to enter a guilty plea.

When the defendant was under 18 years of age at the time of the offense and is charged with a summary offense that would otherwise carry a mandatory sentence of imprisonment as prescribed by statute, the issuing authority is required to conduct the summary trial but may not sentence the defendant to a term of imprisonment. See 42 Pa.C.S. § § 6302 and 6303 and 75 Pa.C.S. § 6303(b).

See Rule 454(F) for the information that must be included in the sentencing order when restitution is included in the sentence.

For the procedure upon default in payment of the fine or costs, see Rule 456.

For appeal procedures in summary cases, see Rules 460, 461, and 462.

For procedures regarding arrest warrants, see Rules 430 and 431.

Concerning the appointment or waiver of counsel, see Rules 121 and 122.

Official Note

Previous rule, originally numbered Rule 140, adopted January 31, 1970, effective May 1, 1970; renumbered Rule 69 September 18, 1973, effective January 1, 1974; Comment revised January 28, 1983, effective July 1, 1983; rescinded July 12, 1985, effective January 1, 1986, and not replaced in these rules. Present Rule 69 adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986. The January 1, 1986 effective dates are all extended to July 1, 1986; amended May 28, 1987, effective July 1, 1987; amended January 31, 1991, effective July 1, 1991; renumbered Rule 424 and amended March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; amended January 26, 2007, effective February 1, 2008; Comment revised July 17, 2013, effective August 17, 2013; Comment revised March 9, 2016, effective July 1, 2016.

Committee Explanatory Reports:

Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the August 7, 2003 new Comment language concerning defendants under the age of 18 published with the Court’s Order at 33 Pa.B. 4293 (August 30, 2003).

Final Report explaining the January 26, 2007 amendments to paragraphs (A)(2), (B)(3), and (C)(4) published with the Court’s Order at 37 Pa.B. 760 (February 17, 2007).

Final Report explaining the July 17, 2013 Comment revision concerning mandatory incarceration offenses and juveniles published with the Court’s Order at 43 Pa.B. 4325 (August 3, 2013).

Final Report explaining the March 9, 2016 Comment revision concerning the Rule 454 restitution procedures published with the Court’s Order at 46 Pa.B. 1540 (March 26, 2016).

The provisions of this Rule 424 amended August 7, 2003, effective July 1, 2004, 33 Pa.B. 4289; amended January 16, 2007, effective February 1, 2008, 37 Pa.B. 752; amended July 17, 2013, effective August 17, 2013, 43 Pa.B. 4323; amended March 9, 2016, effective July 1, 2016, 46 Pa.B. 1532. Immediately preceding text appears at serial pages (360844) and (368075) to (368076).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 430 Issuance of Warrant. {#sec-rule-430 omnilex-key=us-pa-regs-official--title-234--Rule 430}

(A) ARREST WARRANTS INITIATING PROCEEDINGS

A warrant for the arrest of the defendant shall be issued when:

(1) the citation or summons is returned undelivered; or

(2) the issuing authority has reasonable grounds to believe that the defendant will not obey a summons.

(B) BENCH WARRANTS

(1) A bench warrant shall be issued when:

(a) the defendant fails to respond to a citation or summons that was served upon the defendant personally or by certified mail return receipt requested; or

(b) the defendant has failed to appear for the execution of sentence as required in Rule 454(F)(3).

(2) A bench warrant may be issued when a defendant has entered a not guilty plea and fails to appear for the summary trial, if the issuing authority determines, pursuant to Rule 455(A), that the trial should not be conducted in the defendant’s absence.

(3) A bench warrant may be issued when:

(a) the defendant has entered a guilty plea by mail and the money forwarded with the plea is less than the amount of the fine and costs specified in the citation or summons; or

(b) the defendant has been sentenced to pay restitution, a fine, or costs and has defaulted on the payment; or

(c) the issuing authority has, in the defendant’s absence, tried and sentenced the defendant to pay restitution, and/or to pay a fine and costs and the collateral deposited by the defendant is less than the amount of the fine and costs imposed.

(4) No warrant shall issue under paragraph (B)(3) unless the defendant has been given notice in person or by first class mail that failure to pay the amount due or to appear for a hearing may result in the issuance of a bench warrant, and the defendant has not responded to this notice within 10 days. Notice by first class mail shall be considered complete upon mailing to the defendant’s last known address.

Personal service of a citation under paragraph (B)(1) is intended to include the issuing of a citation to a defendant as provided in Rule 400 and the rules of Chapter 4, Part B(1).

When the defendant is under 18 years of age, and the defendant has failed to respond to the citation, the issuing authority must issue a summons as provided in Rule 403(B)(4)(a). If the defendant fails to respond to the summons, the issuing authority should issue a warrant as provided in either paragraph (A)(1) or (B)(1).

A bench warrant may not be issued under paragraph (B)(1) when a defendant fails to respond to a citation or summons that was served by first class mail. See Rule 451.

Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service’s return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

Rule 454 provides that the issuing authority is to direct any defendant who is sentenced to a term of imprisonment to appear for the execution of sentence on a date certain following the expiration of the 30-day stay required by Rule 461. Paragraph (B)(1)(b), formerly paragraph (A)(1)(d), was added in 2003 to make it clear that an issuing authority should issue a warrant for the arrest of any defendant who fails to appear for the execution of sentence.

Ordinarily, pursuant to Rule 455, the issuing authority must conduct a summary trial in the defendant’s absence. However, if the issuing authority determines that there is a likelihood that the sentence will include imprisonment or that there is other good cause not to conduct the summary trial, the issuing authority may issue a bench warrant for the arrest of the defendant pursuant to paragraph (B)(2) in order to bring the defendant before the issuing authority for the summary trial.

The bench warrant issued under paragraph (B)(3) should state the amount required to satisfy the sentence.

When a defendant is arrested pursuant to paragraph (B)(3), the issuing authority must conduct a hearing to determine whether the defendant is able to pay the amount of restitution, fine, and costs that is due. See Rule 456.

Except in cases brought pursuant to the Public School Code of 1949, 24 P.S. § 1-102 et seq., in which the defendant is at least 15 years of age but not yet 17, if the defendant is under 18 years of age and has not paid the fine and costs, the issuing authority must issue the notice required by paragraph (B)(4) to the defendant and the defendant’s parents, guardian, or other custodian informing the defendant and defendant’s parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority will certify notice of the failure to pay to the court of common pleas as required by the Juvenile Act, 42 Pa.C.S. § 6302, definition of ‘‘delinquent act,’’ paragraph (2)(iv). Thereafter, the case will proceed pursuant to the Rules of Juvenile Court Procedure and the Juvenile Act instead of these rules.

If the defendant is charged with a violation of the compulsory attendance requirements of the Public School Code of 1949, 24 P.S. § 1-102, et seq.; has attained the age of 15 but is not yet 17; and has failed to pay the fine, the issuing authority must issue the notice required by paragraph (B)(4) to the defendant and the defendant’s parents, guardian, or other custodian informing the defendant and defendant’s parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority may refer the defendant for commencement of dependency proceedings under 42 Pa.C.S. § 6303(a)(1). See 24 P.S. § 13-1333.3(f)(2) that provides for the adoption of a local policy for the referral of a case where a child has failed to satisfy a fine or costs to a juvenile probation officer for the commencement of dependency proceedings.

If the defendant is 18 years of age or older when the default in payment occurs, the issuing authority must proceed under these rules.

When contempt proceedings are also involved, see Chapter 1 Part D for the issuance of arrest warrants.

See Rule 431 for the procedures when a warrant of arrest is executed.

Official Note

Rule 75 adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; amended April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999; renumbered Rule 430 and amended March 1, 2000, effective April 1, 2001; amended February 28, 2003, effective July 1, 2003; Comment revised August 7, 2003, effective July 1, 2004; Comment revised April 1, 2005, effective October 1, 2005; amended June 30, 2005, effective August 1, 2006; amended January 26, 2007, effective February 1, 2008; Comment revised September 18, 2008, effective February 1, 2009; Comment revised January 17, 2013, effective May 1, 2013; Comment revised December 21, 2018, effective May 1, 2019.

Committee Explanatory Reports:

Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).

Final Report explaining the April 18, 1997 amendments concerning arrest warrants when defendant fails to appear for trial published with the Court’s Order at 27 Pa.B. 2117 (May 3, 1997).

Final Report explaining the October 1, 1997 amendments in paragraph (3) and the provisions of new paragraph (4) published with the Court’s Order at 27 Pa.B. 5414 (October 18, 1997).

Final Report explaining the July 2, 1999 amendments to paragraph (3)(c) and the Comment concerning restitution published with the Court’s Order at 29 Pa.B. 3718 (July 17, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the February 28, 2003 amendments adding paragraph (A)(1)(d) published with the Court’s Order at 33 Pa.B. 1326 (March 15, 2003).

Final Report explaining the August 7, 2003 new Comment language concerning failure to pay fines and costs by juveniles published with the Court’s Order at 33 Pa.B. 4293 (August 30, 2003).

Final Report explaining the April 1, 2005 Comment revision concerning application of the Juvenile Court Prodedural Rules published with the Court’s Order at 35 Pa.B. 2213 (April 16, 2005).

Final Report explaining the June 30, 2005 changes distinguishing between warrants that initiate proceedings and bench warrants in summary cases published with the Court’s Order at 35 Pa.B. 3911 (July 16, 2005).

Final Report explaining the change to the Rule 454 reference in paragraph (B)(1)(b) with the Court’s Order at 37 Pa.B. 760 (February 17, 2007).

Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service’s return receipt electronic option published with the Court’s Order at 38 Pa.B. 5428 (October 4, 2008).

Final Report explaining the January 17, 2013 revision of the Comment concerning the Public School Code of 1949 published with the Court’s Order at 43 Pa.B. 656 (February 2, 2013).

Final Report explaining the December 21, 2018 revision of the Comment concerning commencement of dependency proceedings published with the Court’s Order at 49 Pa.B. 196 (January 12, 2019).

The provisions of this Rule 430 amended February 28, 2003, effective July 1, 2003, 33 Pa.B. 1324; amended August 11, 2003, effective July 1, 2004, 33 Pa.B. 4289; amended April 1, 2005, effective October 1, 2005, 35 Pa.B. 2210; amended June 30, 2005, effective August 1, 2006, 35 Pa.B. 3901; amended February 16, 2007, effective February 1, 2008, 37 Pa.B. 752; amended September 18, 2008, effective February 1, 2009, 38 Pa.B. 5425; amended January 17, 2013, effective May 1, 2013, 43 Pa.B. 654; amended December 21, 2018, effective May 1, 2019, 49 Pa.B. 190. Immediately preceding text appears at serial pages (380200), (365831) to (365832) and (376755).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 431 Procedure When Defendant Arrested With Warrant. {#sec-rule-431 omnilex-key=us-pa-regs-official--title-234--Rule 431}

(A) When a warrant is issued pursuant to Rule 430 in a summary case, the warrant shall be executed by a police officer as defined in Rule 103.

(1) If the warrant is executed between the hours of 6 a.m. and 10 p.m., the police officer shall proceed as provided in paragraphs (B) or (C).

(2) If the warrant is executed outside the hours of 6 a.m. and 10 p.m., unless the time period is extended by the president judge by local rule enacted pursuant to Rule 105, the police officer shall call the proper issuing authority to determine when the issuing authority will be available pursuant to Rule 117.

(B) Arrest Warrants Initiating Proceedings

(1) When an arrest warrant is executed, the police officer shall either:

(a) accept from the defendant a signed guilty plea and the full amount of the fine and costs if stated on the warrant;

(b) accept from the defendant a signed not guilty plea and the full amount of collateral if stated on the warrant; or

(c) if the defendant is unable to pay, cause the defendant to be taken without unnecessary delay before the proper issuing authority.

(2) When the police officer accepts fine and costs, or collateral under paragraphs (B)(1)(a) or (b), the officer shall issue a receipt to the defendant setting forth the amount of fine and costs, or collateral received and return a copy of the receipt, signed by the defendant and the police officer, to the proper issuing authority.

(3) When the defendant is taken before the issuing authority under paragraph (B)(1)(c),

(a) the defendant shall enter a plea; and

(b) if the defendant pleads guilty, the issuing authority shall impose sentence. If the defendant pleads not guilty, the defendant shall be given an immediate trial unless:

(i) the Commonwealth is not ready to proceed, or the defendant requests a postponement or is not capable of proceeding, and in any of these circumstances, the issuing authority shall release the defendant on recognizance unless the issuing authority has reasonable grounds to believe that the defendant will not appear, in which case, the issuing authority may fix the amount of collateral to be deposited to ensure the defendant’s appearance on the new date and hour fixed for trial; or

(ii) the defendant’s criminal record must be ascertained prior to trial as specifically required by statute for purposes of grading the offense charged, in which event the issuing authority shall release the defendant on recognizance unless the issuing authority has reasonable grounds to believe that the defendant will not appear, in which case, the issuing authority may fix the amount of collateral to be deposited to ensure the defendant’s appearance on the new date and hour fixed for trial, which shall be after the issuing authority’s receipt of the required information.

(iii) In determining whether it is necessary to set collateral and what amount of collateral should be set, the issuing authority shall consider the factors listed in Rule 523. The amount of collateral shall not exceed the full amount of the fine and costs.

(iv) If collateral has been set, the issuing authority shall state in writing the reason(s) why any collateral other than release on recognizance has been set and the facts that support a determination that the defendant has the ability to pay monetary collateral.

(v) If collateral is set and the defendant does not post collateral, the defendant shall not be detained without a trial longer than 72 hours or the close of the next business day if the 72 hours expires on a non-business day.

(c) If the defendant is under 18 years of age and cannot be given an immediate trial, the issuing authority promptly shall notify the defendant and defendant’s parents, guardian, or other custodian of the date set for the summary trial, and shall release the defendant on his or her own recognizance.

(C) Bench Warrants

(1) When a bench warrant is executed, the police officer shall either:

(a) accept from the defendant a signed guilty plea and the full amount of the fine and costs if stated on the warrant;

(b) accept from the defendant a signed not guilty plea and the full amount of collateral if stated on the warrant;

(c) accept from the defendant the amount of restitution, fine, and costs due as specified in the warrant if the warrant is for collection of restitution, fine, and costs after a guilty plea or conviction; or

(d) if the defendant is unable to pay, promptly take the defendant for a hearing on the bench warrant as provided in paragraph (C)(3).

(2) When the defendant pays the restitution, fine, and costs, or collateral pursuant to paragraph (C)(1), the police officer shall issue a receipt to the defendant setting forth the amount of restitution, fine, and costs received and return a copy of the receipt, signed by the defendant and the police officer, to the proper issuing authority.

(3) When the defendant does not pay the restitution, fine, and costs, or collateral, the defendant promptly shall be taken before the proper issuing authority when available pursuant to Rule 117 for a bench warrant hearing. The bench warrant hearing may be conducted using two-way simultaneous audio-visual communication.

For the procedure in court cases following arrest with a warrant initiating proceedings, see Rules 516, 517, and 518. See also the Comment to Rule 706 (Fines or Costs) that recognizes the authority of a common pleas court judge to issue a bench warrant for the collection of fines and costs and provides for the execution of the bench warrant as provided in either paragraphs (C)(1)(c) or (C)(1)(d) and (C)(2) of this rule.

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, 490 A.2d 421 (Pa. 1985).

Nothing in paragraph (A) is intended to preclude the issuing authority when issuing a warrant pursuant to Rule 430 from authorizing in writing on the warrant that the police officer may execute the warrant at any time and bring the defendant before that issuing authority for a hearing under these rules.

For what constitutes a ‘‘proper’’ issuing authority, see Rule 130.

Delay of trial under paragraph (B)(3)(b)(ii) is required by statutes such as 18 Pa.C.S. § 3929 (pretrial fingerprinting and record-ascertainment requirements).

Although the defendant’s trial may be delayed under this rule, the requirement that an arrested defendant be taken without unnecessary delay before the proper issuing authority remains unaffected.

When the police must detain a defendant pursuant to this rule, 61 P. S. § 1154 provides that the defendant may be housed for a period not to exceed 48 hours in ‘‘the borough and township lockups and county correctional institutions.’’

In cases in which a defendant who is under 18 years of age has failed to ‘‘comply with a lawful sentence’’ imposed by the issuing authority, the Juvenile Act requires the issuing authority to certify notice of the failure to comply to the court of common pleas. See the definition of ‘‘delinquent act,’’ paragraph (2)(iv), in 42 Pa.C.S. § 6302. Following the certification, the case is to proceed pursuant to the Rules of Juvenile Court Procedure and the Juvenile Act instead of these rules.

If the defendant is 18 years of age or older when the default in payment occurs, the issuing authority must proceed under these rules.

For the procedures required before a bench warrant may issue for a defendant’s failure to pay restitution, a fine, or costs, see Rule 430(B)(4). When contempt proceedings are also involved, see Chapter 1 Part D for the issuance of arrest warrants.

For the procedures when a bench warrant is issued in court cases, see Rule 150.

Concerning an issuing authority’s availability, see Rule 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail). Pursuant to Rule 117(B), when establishing the system of coverage best suited for the judicial district, the president judge may require defendants arrested on summary case bench warrants after hours to be taken to the established night court where the defendant would be given a notice to appear in the proper issuing authority’s office the next business day or be permitted to pay the full amount of fines and costs.

Concerning the appearance or waiver of counsel, see Rules 121 and 122.

For the procedures in summary cases within the jurisdiction of the Philadelphia Municipal Court and the Philadelphia Municipal Court Traffic Division, see Chapter 10.

Official Note

Rule 76 adopted July 12, 1985, effective January 1, 1986; Comment revised September 23, 1985, effective January 1, 1986; January 1, 1986 effective dates extended to July 1, 1986; Comment revised January 31, 1991, effective July 1, 1991; amended August 9, 1994, effective January 1, 1995; amended October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999; renumbered Rule 431 and amended March 1, 2000, effective April 1, 2001; amended August 7, 2003, effective July 1, 2004; Comment revised April 1, 2005, effective October 1, 2005; amended June 30, 2005, effective August 1, 2006; Comment revised March 9, 2006, effective August 1, 2006; Comment revised May 7, 2014, effective immediately; amended April 10, 2015, effective July 10, 2015.

Committee Explanatory Reports:

Report explaining the January 31, 1991 revision published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).

Final Report explaining the August 9, 1994 amendments published with the Court’s Order at 24 Pa.B. 4342 (August 27, 1994).

Final Report explaining the October 1, 1997 amendments published with the Court’s Order at 27 Pa.B. 5414 (October 18, 1997).

Final Report explaining the July 2, 1999 amendments to paragraphs (B)(3) and (C) concerning restitution published with the Court’s Order at 29 Pa.B. 3718 (July 17, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the August 7, 2003 changes to paragraph (D) and Comment concerning defendants under the age of 18 published with the Court’s Order at 33 Pa.B. 4293 (August 30, 2003).

Final Report explaining the April 1, 2005 Comment revision concerning application of the Juvenile Court Procedural Rules published with the Court’s Order at 35 Pa.B. 2213 (April 16, 2005).

Final Report explaining the June 30, 2005 changes distinguishing between procedures for warrants that initiate proceedings and bench warrants procedures in summary cases published with the Court’s Order at 35 Pa.B. 3911 (July 16, 2005).

Final Report explaining the March 9, 2006, Comment revision adding the cross-reference to Rule 706 published with the Court’s Order at 36 Pa.B. 1396 (March 25, 2006).

Final Report explaining the May 7, 2014 Comment revision changing the cross-reference to the Philadelphia Traffic Court to the Traffic Division of the Philadelphia Municipal Court published with the Court’s Order at 44 Pa.B. 3065 (May 24, 2014).

Final Report explaining the April 10, 2015 amendment concerning the setting of collateral pending summary trial published with the Court’s Order at 45 Pa.B. 2045 (April 25, 2015).

The provisions of this Rule 431 amended August 11, 2003, effective July 1, 2004, 33 Pa.B. 4289; amended April 1, 2005, effective October 1, 2005, 35 Pa.B. 2210; amended June 30, 2005, effective August 1, 2006, 35 Pa.B. 3901; amended March 9, 2006, effective August 1, 2006, 36 Pa.B. 1396; amended May 7, 2014, effective immediately, 44 Pa.B. 3056; amended April 10, 2015, effective July 10, 2015, 45 Pa.B. 2040. Immediately preceding text appears at serial pages (372119) to (372122).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 440 Arrest Without Warrant. {#sec-rule-440 omnilex-key=us-pa-regs-official--title-234--Rule 440}

When an arrest without a warrant in a summary case is authorized by law, a police officer who exhibits some sign of authority may institute proceedings by such an arrest.

Only a police officer, as defined in Rule 103, may institute a summary criminal proceeding by arrest. It is intended that these proceedings will be instituted by arrest only in exceptional circumstances such as those involving violence, or the imminent threat of violence, or those involving a danger that the defendant will flee.

The Vehicle Code provides the procedures for arresting a defendant without a warrant for a summary offense under that Code.

It is preferable that the officer making a stop for a traffic violation be in uniform.

Official Note

Previous Rule 70 adopted April 8, 1982, effective July 1, 1982; rescinded July 12, 1985, effective January 1, 1986 and replaced by present Rule 109. Present Rule 70 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates are all extended to July 1, 1986; renumbered Rule 440 and Comment revised March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 441 Procedure Following Arrest Without Warrant. {#sec-rule-441 omnilex-key=us-pa-regs-official--title-234--Rule 441}

(A) When a defendant has been arrested without a warrant, the defendant shall be either released from custody pursuant to paragraph (B) or taken before the proper issuing authority under paragraph (C).

(B) When a defendant has been arrested without a warrant, the arresting officer shall promptly release the defendant from custody when the following conditions have been met:

(1) the defendant poses no threat of immediate physical harm to any other person or to himself or herself; and

(2) the arresting officer has reasonable grounds to believe that the defendant will appear as required.

A citation shall be issued to the defendant at the time of release and thereafter the case shall proceed in accordance with Rules 405—409 as if the proceedings had been instituted by issuing a citation to the defendant.

(C) When the defendant has not been released from custody under paragraph (B),

(1) the defendant shall be taken without unnecessary delay before the issuing authority when available pursuant to Rule 117 where a citation shall be filed against the defendant, and

(a) the defendant shall enter a plea.

(b) If the defendant pleads guilty, the issuing authority shall impose sentence. If the defendant pleads not guilty, the defendant shall be given an immediate trial unless:

(i) the Commonwealth is not ready to proceed, or the defendant requests a postponement or is not capable of proceeding, and in any of these circumstances, the issuing authority shall release the defendant on recognizance unless the issuing authority has reasonable grounds to believe that the defendant will not appear, in which case, the issuing authority may fix the amount of collateral to be deposited to ensure the defendant’s appearance on the new date and hour fixed for trial; or

(ii) the defendant’s criminal record must be ascertained before trial as specifically required by statute for purposes of grading the offense charged, in which event the issuing authority shall release the defendant on recognizance unless the issuing authority has reasonable grounds to believe that the defendant will not appear, in which case, the issuing authority may fix the amount of collateral to be deposited to ensure the defendant’s appearance on the new date and hour fixed for trial, which shall be after the issuing authority’s receipt of the required information.

(iii) In determining whether it is necessary to set collateral and what amount of collateral should be set, the issuing authority shall consider the factors listed in Rule 523. The amount of collateral shall not exceed the full amount of the fine and costs.

(iv) If collateral has been set, the issuing authority shall state in writing the reason(s) why any collateral other than release on recognizance has been set and the facts that support a determination that the defendant has the ability to pay monetary collateral.

(v) If collateral is set and the defendant does not post collateral, the defendant shall not be detained without a trial longer than 72 hours or the close of the next business day if the 72 hours expires on a non-business day.

(2) If the defendant is under 18 years of age and cannot be given an immediate trial, the issuing authority promptly shall notify the defendant and defendant’s parents, guardian, or other custodian of the date set for the summary trial, and shall release the defendant on his or her own recognizance.

This rule was amended in 2005 to require the arresting police officer to promptly arrange for the defendant’s release if the two criteria set forth in paragraph (B) are met.

‘‘Reasonable grounds’’ as used in paragraph (B)(2) would include such things as concerns about the validity of the defendant’s address, the defendant’s prior contacts with the criminal justice system, and the police officer’s personal knowledge of the defendant.

Delay of trial under paragraph (C)(1)(b)(ii) is required by statutes such as 18 Pa.C.S. § 3929 (pretrial fingerprinting and record-ascertainment requirements). Although the defendant’s trial may be delayed under this paragraph, the requirement that the defendant be taken without unnecessary delay before the proper issuing authority remains unaffected. See also Rules 408, 413, and 423.

On the appearance or waiver of counsel, see Rules 121 and 122.

With regard to the ‘‘proper’’ issuing authority as used in these rules, see Rule 130.

For the procedure in court cases initiated by arrest without warrant, see Rule 519.

For the procedures in summary cases within the jurisdiction of the Philadelphia Municipal Court and the Philadelphia Municipal Court Traffic Division, see Chapter 10.

Concerning an issuing authority’s availability, see Rule 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail).

When the police must detain a defendant pursuant to this rule, 61 P. S. § 1154 provides that the defendant may be housed for a period not to exceed 48 hours in ‘‘the borough and township lockups and county correctional institutions.’’

Official Note

Rule 71 adopted July 12, 1985, effective January 1, 1986; Comment revised September 23, 1985, effective January 1, 1986; January 1, 1986 effective dates extended to July 1, 1986; amended August 9, 1994, effective January 1, 1995; amended May 14, 1999, effective July 1, 1999; renumbered Rule 441 and amended March 1, 2000, effective April 1, 2001; amended August 7, 2003, effective July 1, 2004; amended June 30, 2005, effective August 1, 2006; Comment revised May 7, 2014, effective immediately; amended April 10, 2015, effective July 10, 2015.

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).

Final Report explaining the May 14, 1999 amendments to paragraph (C)(1) and the Comment published with the Court’s Order at 29 Pa.B. 2775 (May 29, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the August 7, 2003 changes the Comment concerning defendants under the age of 18 published with the Court’s Order at 33 Pa.B. 4293 (August 30, 2003).

Final Report explaining the June 30, 2005 changes concerning release of defendant following arrest and procedures when defendant is not released published with the Court’s Order at 35 Pa.B. 3911 (July 16, 2005).

Final Report explaining the May 7, 2014 Comment revision changing the cross-reference to the Philadelphia Traffic Court to the Traffic Division of the Philadelphia Municipal Court published with the Court’s Order at 44 Pa.B. 3065 (May 24, 2014).

Final Report explaining the April 10, 2015 amendment concerning the setting of collateral pending summary trial published with the Court’s Order at 45 Pa.B. 2045 (April 25, 2015).

The provisions of this Rule 441 amended August 7, 2003, effective July 1, 2004, 33 Pa.B. 4289; amended June 30, 2005, effective August 1, 2006, 35 Pa.B. 3901; amended May 7, 2014, effective immediately, 44 Pa.B. 3056; amended April 10, 2015, effective July 10, 2015, 45 Pa.B. 2040. Immediately preceding text appears at serial pages (372123) to (372125).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 451 Service. {#sec-rule-451 omnilex-key=us-pa-regs-official--title-234--Rule 451}

(A) Citations, summonses, and trial notices in summary cases may be served either personally upon the defendant or by mail to the defendant’s last known address.

(B) When service of a summons has been made by first class mail and the defendant fails to respond or appear within the time specified by these rules, the issuing authority shall cause service to be made upon the defendant personally or by certified mail, return receipt requested. Thereafter, the case shall proceed as provided in these rules.

This rule provides the procedures for service in summary cases. These procedures are different from those provided by Rule 576 for motions and documents in court cases. See also Rule 114, which sets forth, inter alia, the procedures for providing notice to a defendant of court proceedings requiring the defendant’s presence in court cases and in summary cases on appeal for a trial de novo.

A citation is served personally upon the defendant within the meaning of this rule when the citation is issued to the defendant as provided in Rule 400(A) and the rules of Chapter 4 Part (B1).

Paragraph (B) makes it clear that the issuing authority must only provide additional notice to a defendant by personal service or certified mail when a defendant fails to respond to a summons. It is intended that, when a defendant fails to appear for trial pursuant to a trial notice served by first class mail, the issuing authority need provide no further notice, but should proceed to conduct the trial in the defendant’s absence pursuant to Rule 455.

Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service’s return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

Official Note

Rule 80 adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended February 1, 1989, effective July 1, 1989; Comment revised June 2, 1994, effective September 1, 1994; renumbered Rule 451 and amended March 1, 2000, effective April 1, 2001; Comment revised March 3, 2004, effective July 1, 2004; Comment revised September 18, 2008, effective February 1, 2009.

Committee Explanatory Reports:

Report explaining the June 2, 1994 Comment revision published at 23 Pa.B. 5008 (October 23, 1993).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 3, 2004 Comment revision updating the cross-references correlative to the March 3, 2004 changes to the motions rules published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service’s return receipt electronic option published with the Court’s Order at 38 Pa.B. 5428 (October 4, 2008).

The provisions of this Rule 451 amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended September 18, 2008, effective February 1, 2009, 38 Pa.B. 5425. Immediately preceding text appears at serial page (326497).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 452 Collateral. {#sec-rule-452 omnilex-key=us-pa-regs-official--title-234--Rule 452}

(A) The issuing authority shall release the defendant on recognizance unless the issuing authority has reasonable grounds to believe that the defendant will not appear.

(B) If the issuing authority has reasonable grounds to believe that the defendant will not appear, the issuing authority may fix the amount of collateral to be deposited to ensure a defendant’s appearance at the summary trial, which amount shall not exceed the full amount of the fine and costs.

(C) In determining whether it is necessary to set collateral and what amount of collateral should be set, the issuing authority shall consider the factors listed in Rule 523.

(D) If collateral is set, the issuing authority shall state in writing the reason(s) why any collateral other than release on recognizance has been set and the facts that support a determination that the defendant has the ability to pay monetary collateral.

(E) To be released on recognizance or to request a lower amount of collateral, the defendant must appear personally before the issuing authority to enter a plea, as provided in Rules 408, 413, and 423.

(F) The collateral deposited shall be in United States currency or a cash equivalent.

(G) The collateral deposited may be forfeited after conviction at the summary trial and applied to payment of the fine, costs, and restitution.

The term ‘‘collateral’’ is intended to convey the dual purpose of the amount of money that is deposited. First, the amount deposited is used as bail to secure the defendant’s appearance at the summary trial. Second, the amount deposited is used as security, and may be forfeited in the event of a conviction to satisfy any fine, costs, and restitution.

A defendant may not be penalized or denied a hearing because he or she cannot pay the full amount of the fine and costs as collateral.

For the purpose of paragraph (F), any guaranteed arrest bond certificate issued by an automobile club or association pursuant to 40 P.S. § 837 (1959) would constitute a ‘‘cash equivalent.’’

Paragraph (G) was amended in 2016 to clarify that collateral may be forfeited for the payment of restitution as well as for the fine and costs that have been assessed by an issuing authority. See 18 Pa.C.S. § 1106(d) for the authority of a magisterial district judge to impose restitution on a defendant.

Official Note

Rule 81 adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; Comment revised February 1, 1989, effective July 1, 1989; Comment revised May 14, 1999, effective July 1, 1999; renumbered Rule 452 and Comment revised March 1, 2000, effective April 1, 2001; amended April 10, 2015, effective July 10, 2015; amended June 10, 2016, effective August 1, 2016.

Committee Explanatory Reports:

Final Report explaining the May 14, 1999 Comment revisions published with the Court’s Order at 29 Pa.B. 2775 (May 29, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the April 10, 2015 amendment concerning the setting of collateral published with the Court’s Order at 45 Pa.B. 2045 (April 25, 2015).

Final Report explaining the June 10, 2016 addition of ‘‘restitution’’ to the list of items for which collateral may be forfeited after conviction published with the Court’s Order at 46 Pa.B. 3238 (June 25, 2016).

The provisions of this Rule 452 amended April 10, 2015, effective July 10, 2015, 45 Pa.B. 2040; amended June 10, 2016, effective August 1, 2016, 46 Pa.B. 3235. Immediately preceding text appears at serial pages (376763) to (376764).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 453 Joinder of Offenses and Defendants. {#sec-rule-453 omnilex-key=us-pa-regs-official--title-234--Rule 453}

(A) When more than one person is alleged to have participated in the commission of a summary offense, the issuing authority shall accept one citation or complaint for each person charged. The citations or complaints against such persons may be consolidated for trial.

(B) When more than one summary offense is alleged to have been committed by one person arising from the same incident, the matter shall proceed as a single case and the issuing authority shall receive only one set of costs.

This rule is based upon comparable provisions in Rule 505 that apply in court cases.

Paragraph (A) is intended to make clear that the costs in a summary case in which there are multiple defendants would be assessed against each individual defendant even when the defendants’ cases are consolidated for trial.

Official Note

Rule 82 adopted July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; amended February 1, 1989, effective July 1, 1989; Comment revised August 9, 1994, effective January 1, 1995; renumbered Rule 453 and amended March 1, 2000, effective April 1, 2001.

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).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 454 Trial in Summary Cases. {#sec-rule-454 omnilex-key=us-pa-regs-official--title-234--Rule 454}

(a) Immediately prior to trial in a summary case:

(1) the defendant shall be advised of the charges in the citation or complaint;

(2) if, in the event of a conviction, there is a reasonable likelihood of a sentence of imprisonment or probation, the defendant shall be advised of the right to counsel and

(i) upon request, the defendant shall be given a reasonable opportunity to secure counsel, or

(ii) if the defendant is without financial resources or is otherwise unable to employ counsel, counsel shall be assigned as provided in Rule 122; and

(3) the defendant shall enter a plea.

(b) If the defendant pleads guilty, the issuing authority shall impose sentence. If the defendant pleads not guilty, the issuing authority shall try the case in the same manner as trials in criminal cases are conducted in the courts of common pleas when jury trial has been waived; however, in all summary cases arising under the Vehicle Code or local traffic ordinances, the law enforcement officer observing the defendant’s alleged offense may, but shall not be required to, appear and testify against the defendant. In no event shall the failure of the law enforcement officer to appear, by itself, be a basis for dismissal of the charges against the defendant.

(c) The attorney for the Commonwealth may appear and assume charge of the prosecution. When the violation of an ordinance of a municipality is charged, an attorney representing that municipality, with the consent of the attorney for the Commonwealth, may appear and assume charge of the prosecution. When no attorney appears on behalf of the Commonwealth, the affiant may be permitted to ask questions of any witness who testifies.

(d) The verdict and sentence, if any, shall be announced in open court immediately upon the conclusion of the trial, except as provided in subdivision (e).

(e) If the defendant may be sentenced to intermediate punishment, the issuing authority may delay imposing sentence pending confirmation of the defendant’s eligibility for intermediate punishment.

(f) At the time of sentencing, the issuing authority shall:

(1) if the defendant’s sentence includes restitution, a fine, or costs, state:

(i) the amount of the fine and the obligation to pay costs;

(ii) the amount of restitution ordered, including

(i) the identity of the payee(s),

(ii) to whom the restitution payment shall be made, and

(iii) whether any restitution has been paid and in what amount; and

(iii) the date on which payment is due.

If the defendant is without the financial means to pay the amount in a single remittance, the issuing authority may provide for installment payments and shall state the date on which each installment is due;

(2) advise the defendant of the right to appeal within 30 days for a trial de novo in the court of common pleas, and that if an appeal is filed:

(i) the execution of sentence will be stayed and the issuing authority may set bail or collateral; and

(ii) the defendant must appear for the de novo trial or the appeal may be dismissed;

(3) if a sentence of imprisonment has been imposed, direct the defendant to appear for the execution of sentence on a date certain unless the defendant files a notice of appeal within the 30-day period, and advise that, if the defendant fails to appear on that date, a warrant for the defendant’s arrest will be issued; and

(4) issue a written order imposing sentence, signed by the issuing authority. The order shall include the information specified in subdivisions (f)(1) through (f)(3), and a copy of the order shall be given to the defendant.

(g) Suppression Motion.

(1) A motion to suppress evidence shall be made in the first instance in the court of common pleas on appeal from a summary conviction.

(2) The motion shall comply with Rule 581(C)—(J) and be filed with the clerk of courts within 30 days of the filing of the notice of appeal.

No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 535 U.S. 654 (2002), Scott v. Illinois, 440 U.S. 367 (1979), and Argersinger v. Hamlin, 407 U.S. 25 (1972). See Pa.R.Crim.P. 121 and 122.

The affiant may be permitted to withdraw the charges pending before the issuing authority. See Pa.R.Crim.P. 457 (Withdrawal of Charges in Summary Cases).

Subdivision (f)(2)(ii) is included in the rule in light of North v. Russell, 427 U.S. 328 (1976). For the procedures for taking, perfecting, and handling an appeal, see Rules 460, 461, and 462.

As the judicial officer presiding at the summary trial, the issuing authority controls the conduct of the trial generally. When an attorney appears on behalf of the Commonwealth or on behalf of a municipality pursuant to subdivision (c), the prosecution of the case is under the control of that attorney. When no attorney appears at the summary trial on behalf of the Commonwealth, or a municipality, the issuing authority may ask questions of any witness who testifies, and the affiant may request the issuing authority to ask specific questions. In the appropriate circumstances, the issuing authority may also permit the affiant to question Commonwealth witnesses, cross-examine defense witnesses, and make recommendations about the case to the issuing authority.

Although the scheduling of summary trials is left by the rules to the discretion of the issuing authority, it is intended that trial will be scheduled promptly upon receipt of a defendant’s plea or promptly after a defendant’s arrest. When a defendant is incarcerated pending a summary trial, it is incumbent upon the issuing authority to schedule trial for the earliest possible time.

When the defendant was under 18 years of age at the time of the offense and is charged with a summary offense that would otherwise carry a mandatory sentence of imprisonment as prescribed by statute, the issuing authority is required to conduct the summary trial but may not sentence the defendant to a term of imprisonment. See 42 Pa.C.S. § § 6302 and 6303 and 75 Pa.C.S. § 6303(b).

Under subdivision (f)(2)(i), the issuing authority should explain to the defendant that if an appeal is filed, any sentence, including imprisonment, fines, or restitution, will be stayed.

When setting the specific date for the defendant to appear for execution of a sentence of imprisonment pursuant to subdivision (f)(3), the issuing authority should set the earliest possible date for sentencing after the appeal period expires.

When a defendant has waived the stay of the sentence of imprisonment pursuant to Rule 461, the issuing authority may fix the commencement date of the sentence to be the date of conviction, rather than after the 30-day stay period has expired. The defendant, of course, still would be able to pursue an appeal under Rules 460—462.

For the statutory authority to sentence a defendant to pay a fine, see 42 Pa.C.S. § 9726.

For the statutory authority to sentence a defendant to pay restitution, see 42 Pa.C.S. § 9721(c) and 18 Pa.C.S. § 1106(c). See also 18 Pa.C.S. § 1106(c)(2)(iii) (prohibiting the court from ordering the incarceration of a defendant for failure to pay restitution if the failure results from the defendant’s inability to pay).

Before imposing both a fine and restitution, the issuing authority must determine that the fine will not prevent the defendant from making restitution to the victim. See 42 Pa.C.S. § § 9726(c)(2) and 9730(b)(3).

Certain costs are mandatory and must be imposed. See, e.g., 18 P.S. § 11.1101.

Subdivision (e) permits an issuing authority to delay imposing sentence in summary cases in order to investigate a defendant’s eligibility for intermediate punishment. For example, under 42 Pa.C.S. § 9763 and § 9804, defendants may be sentenced to intermediate punishment for certain offenses, including summary violations of 75 Pa.C.S. § 1543(b) (driving while license is under a DUI-related suspension) but only if they meet certain eligibility requirements, such as undergoing a drug and alcohol assessment. Often this information will not be available to the issuing authority at the time of sentencing.

See Rule 456 for the procedures when a defendant defaults in the payment of restitution, fines, or costs.

For the procedures concerning sentences that include restitution in court cases, see Rule 705.1.

A defendant should be encouraged to seek an adjustment of a payment schedule for restitution, fines, or costs before a default occurs. See Pa.R.Crim.P. 456(A).

The provisions of this Rule 454 amended February 28, 2003, effective July 1, 2003, 33 Pa.B. 1324; amended August 11, 2003, effective July 1, 2004, 33 Pa.B. 4289; amended March 26, 2004, effective July 1, 2004, 34 Pa.B. 1929; amended January 16, 2007, effective February 1, 2008, 37 Pa.B. 752; amended July 17, 2013, effective August 17, 2013, 43 Pa.B. 4323; amended March 9, 2016, effective July 1, 2016, 46 Pa.B. 1532; amended January 8, 2025, effective April 1, 2025, 55 Pa.B. 702. Immediately preceding text appears at serial pages (382190) to (382192) and (395819).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 455 Trial in Defendant’s Absence. {#sec-rule-455 omnilex-key=us-pa-regs-official--title-234--Rule 455}

(A) If the defendant fails to appear for trial in a summary case, the trial shall be conducted in the defendant’s absence, unless the issuing authority determines that there is a likelihood that the sentence will be imprisonment or that there is other good cause not to conduct the trial in the defendant’s absence. If the trial is not conducted in the defendant’s absence, the issuing authority may issue a warrant for the defendant’s arrest.

(B) At trial, the issuing authority shall proceed to determine the facts and render a verdict.

(C) If the defendant is found not guilty, any collateral previously deposited shall be returned.

(D) If the defendant is found guilty, the issuing authority shall impose sentence, and shall give notice by first class mail to the defendant of the conviction and sentence, and of the right to file an appeal within 30 days for a trial de novo. In those cases in which the amount of collateral deposited does not satisfy the fine and costs imposed or the issuing authority imposes a sentence of restitution, the notice shall also state that failure within 10 days of the date on the notice to pay the amount due or to appear for a hearing to determine whether the defendant is financially able to pay the amount due may result in the issuance of an arrest warrant.

(E) Any collateral previously deposited shall be forfeited and applied only to the payment of the fine, costs, and restitution. When the amount of collateral deposited is more than the fine, costs and restitution, the balance shall be returned to the defendant.

(F) If the defendant does not respond within 10 days to the notice in paragraph (D), the issuing authority may issue a warrant for the defendant’s arrest.

In those cases in which the issuing authority determines that there is a likelihood that the sentence will be imprisonment or that there is other good cause not to conduct the trial in the defendant’s absence, the issuing authority may issue a warrant for the arrest of the defendant in order to have the defendant brought before the issuing authority for the summary trial. See Rule 430(B). The trial would then be conducted with the defendant present as provided in these rules. See Rule 454.

When the defendant was under 18 years of age at the time of the offense and is charged with a summary offense that would otherwise carry a mandatory sentence of imprisonment as prescribed by statute, the issuing authority is required to conduct the summary trial but may not sentence the defendant to a term of imprisonment. See 42 Pa.C.S. § § 6302 and 6303 and 75 Pa.C.S. § 6303(b).

Paragraph (D) provides notice to the defendant of conviction and sentence after trial in absentia to alert the defendant that the time for filing an appeal has begun to run. See Rules 408(B)(3), 413(B)(3), and 423(B)(3).

See Rule 454(F) for what information must be included in a sentencing order when restitution is included in the sentence.

Except in cases under the Public School Code of 1949, 24 P.S. § 1-102, et seq., in which the defendant is at least 15 years of age but not yet 17, if the defendant is under 18 years of age, the notice in paragraph (D) must inform the defendant and defendant’s parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority will certify notice of the failure to pay to the court of common pleas as required by the Juvenile Act, 42 Pa.C.S. § 6302, definition of ‘‘delinquent act,’’ paragraph (2)(iv), and the case will proceed pursuant to the Rules of Juvenile Court Procedure and the Juvenile Act instead of these rules.

If the defendant is charged with a violation of the compulsory attendance requirements of the Public School Code of 1949, 24 P.S. § 1-102, et seq.; has attained the age of 15 but is not yet 17; and has failed to pay the fine, the issuing authority must issue the notice required by paragraph (D) to the defendant and the defendant’s parents, guardian, or other custodian informing the defendant and defendant’s parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority may refer the defendant for commencement of dependency proceedings under 42 Pa.C.S. § 6303(a)(1). See 24 P.S. § 13-1333.3(f)(2) that provides for the adoption of a local policy for the referral of a case where a child has failed to satisfy a fine or costs to a juvenile probation officer for the commencement of dependency proceedings.

If the defendant is 18 years of age or older and fails to pay or appear as required in paragraph (D), the issuing authority must proceed under these rules.

Paragraph (E) was amended in 2016 to clarify that collateral may be forfeited for the payment of restitution as well as for the fine and costs that have been assessed by an issuing authority. See 18 Pa.C.S. § 1106(d) for the authority of a magisterial district judge to impose restitution on a defendant.

Concerning the appointment or waiver of counsel, see Rules 121 and 122.

For arrest warrant procedures in summary cases, see Rules 430 and 431.

Official Note

Rule 84 adopted July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; amended February 1, 1989, effective July 1, 1989; amended April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998; renumbered Rule 455 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; Comment revised April 1, 2005, effective October 1, 2005; amended August 15, 2005, effective February 1, 2006; Comment revised January 17, 2013, effective May 1, 2013; Comment revised July 17, 2013, effective August 17, 2013; Comment revised March 9, 2016, effective July 1, 2016; amended June 10, 2016, effective August 1, 2016; Comment revised December 21, 2018, effective May 1, 2019.

Committee Explanatory Reports:

Final Report explaining the April 18, 1997 amendments mandating a summary trial in absentia with certain exceptions published with the Court’s Order at 27 Pa.B. 2117 (May 3, 1997).

Final Report explaining the October 1, 1997 amendments to paragraphs (D) and (E) published with the Court’s Order at 27 Pa.B. 5414 (October 1, 1997).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the August 7, 2003 changes to the Comment concerning failure to pay and juveniles published with the Court’s Order at 33 Pa.B. 4293 (August 30, 2003).

Final Report explaining the April 1, 2005 Comment revision concerning application of the Juvenile Court Procedural Rules published with the Court’s Order at 35 Pa.B. 2213 (April 16, 2005).

Final Report explaining the August 15, 2005 amendments to paragraph (D) concerning notice of right to appeal published with the Court’s Order at 35 Pa.B. 4918 (September 3, 2005).

Final Report explaining the January 17, 2013 revisions of the Comment concerning the Public School Code of 1949 published with the Court’s Order at 43 Pa.B. 656 (February 2, 2013).

Final Report explaining the July 17, 2013 Comment revision concerning mandatory incarceration offenses and juveniles published with the Court’s Order at 43 Pa.B. 4325 (August 3, 2013).

Final Report explaining the March 9, 2016 Comment revision cross-referencing the sentencing provisions in Rule 454(F) published with the Court’s Order at 46 Pa.B. 1540 (March 26, 2016).

Final Report explaining the June 10, 2016 amendments clarifying that forfeited collateral may be applied to restitution published with the Court’s Order at 46 Pa.B. 3238 (June 25, 2016).

Final Report explaining the December 21, 2018 revision of the Comment concerning commencement of dependency proceedings published with the Court’s Order at 49 Pa.B. 196 (January 12, 2019).

The provisions of this Rule 455 amended August 7, 2003, effective July 1, 2004, 33 Pa.B. 4289; amended April 1, 2005, effective October 1, 2005, 35 Pa.B. 2210; amended August 15, 2005, effective February 1, 2006, 35 Pa.B. 4914; amended January 17, 2013, effective May 1, 2013, 43 Pa.B. 654; amended July 17, 2013, effective August 17, 2013, 43 Pa.B. 4323; amended March 9, 2016, effective July 1, 2016, 46 Pa.B. 1532; amended June 10, 2016, effective August 1, 2016, 46 Pa.B. 3235; amended December 21, 2018, effective May 1, 2019, 49 Pa.B. 190. Immediately preceding text appears at serial pages (382193) to (382195).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 456 Default Procedures: Restitution, Fines, and Costs. {#sec-rule-456 omnilex-key=us-pa-regs-official--title-234--Rule 456}

(A) When a defendant advises the issuing authority that a default on a single remittance or installment payment of restitution, fines, or costs is imminent, the issuing authority may schedule a hearing on the defendant’s ability to pay. If a new payment schedule is ordered, the order shall state the date on which each payment is due, and the defendant shall be given a copy of the order.

(B) If a defendant defaults on the payment of fines and costs, or restitution, as ordered, the issuing authority shall notify the defendant in person or by first class mail that, unless within 10 days of the date on the default notice, the defendant pays the amount due as ordered, or appears before the issuing authority to explain why the defendant should not be imprisoned for nonpayment as provided by law, a warrant for the defendant’s arrest may be issued.

(C) If the defendant appears pursuant to the 10-day notice in paragraph (B) or following an arrest for failing to respond to the 10-day notice in paragraph (B), the issuing authority shall conduct a hearing immediately to determine whether the defendant is financially able to pay as ordered.

(1) If the hearing cannot be held immediately, the issuing authority shall release the defendant on recognizance unless the issuing authority has reasonable grounds to believe that the defendant will not appear, in which case, the issuing authority may set collateral as provided in Rule 523.

(2) If collateral is set, the issuing authority shall state in writing the reason(s) why any collateral other than release on recognizance has been set and the facts that support a determination that the defendant has the ability to pay monetary collateral.

(3) If collateral is set and the defendant does not post collateral, the defendant shall not be detained without a hearing longer than 72 hours or the close of the next business day if the 72 hours expires on a non-business day.

(D) When a defendant appears pursuant to the notice in paragraph (B) or pursuant to an arrest warrant issued for failure to respond to the notice as provided in paragraph (C):

(1) upon a determination that the defendant is financially able to pay as ordered, the issuing authority may impose any sanction provided by law.

(2) Upon a determination that the defendant is financially unable to pay as ordered, the issuing authority may order a schedule or reschedule for installment payments, or alter or amend the order as otherwise provided by law.

(3) At the conclusion of the hearing, the issuing authority shall:

(a) if the issuing authority has ordered a schedule of installment payments or a new schedule of installment payments, state the date on which each installment payment is due;

(b) advise the defendant of the right to appeal within 30 days for a hearing de novo in the court of common pleas, and that if an appeal is filed:

(i) the execution of the order will be stayed and the issuing authority may set bail or collateral; and

(ii) the defendant must appear for the hearing de novo in the court of common pleas or the appeal may be dismissed;

(c) if a sentence of imprisonment has been imposed, direct the defendant to appear for the execution of sentence on a date certain unless the defendant files a notice of appeal within the 30-day period; and

(d) issue a written order imposing sentence, signed by the issuing authority. The order shall include the information specified in paragraphs (D)(3)(a) through (D)(3)(c), and a copy of the order shall be given to the defendant.

(E) A defendant may appeal an issuing authority’s determination pursuant to this rule by filing a notice of appeal within 30 days of the issuing authority’s order. The appeal shall proceed as provided in Rules 460, 461, and 462.

The purpose of this rule is to provide the procedures governing defaults in the payment of restitution, fines, and costs.

Although most of this rule concerns the procedures followed by the issuing authority after a default occurs, paragraph (A) makes it clear that a defendant should be encouraged to seek a modification of the payment order when the defendant knows default is likely, but before it happens. For fines and costs, see 42 Pa.C.S. § 9730(b)(3).

An issuing authority may at any time alter or amend an order of restitution. See 18 Pa.C.S. § 1106(c)(2) and (3).

When a defendant defaults on a payment of restitution, fines, or costs, paragraph (B) requires the issuing authority to notify the defendant of the default, and to provide the defendant with an opportunity to pay the amount due or appear within 10 days to explain why the defendant should not be imprisoned for nonpayment. Notice by first class mail is considered complete upon mailing to the defendant’s last known address. See Rule 430(B)(4).

Except in cases under the Public School Code of 1949, 24 P.S. § 1-102, et seq., in which the defendant is at least 15 years of age but not yet 17, if the defendant is under 18 years of age, the notice in paragraph (B) must inform the defendant and defendant’s parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority will certify notice of the failure to pay to the court of common pleas as required by the Juvenile Act, 42 Pa.C.S. § 6302, definition of ‘‘delinquent act,’’ paragraph (2)(iv), and the case will proceed pursuant to the Rules of Juvenile Court Procedure and the Juvenile Act instead of these rules.

If the defendant is charged with a violation of the compulsory attendance requirements of the Public School Code of 1949, 24 P.S. § 1-102, et seq.; has attained the age of 15 but is not yet 17; and has failed to pay the fine, the issuing authority must issue the notice required by paragraph (B) to the defendant and the defendant’s parents, guardian, or other custodian informing the defendant and defendant’s parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority may refer the defendant for commencement of dependency proceedings under 42 Pa.C.S. § 6303(a)(1). See 24 P.S. § 13-1333.3(f)(2) that provides for the adoption of a local policy for the referral of a case where a child has failed to satisfy a fine or costs to a juvenile probation officer for the commencement of dependency proceedings.

If the defendant is 18 years or older when the default in payment occurs, the issuing authority must proceed under these rules.

Pursuant to paragraph (C), the issuing authority must conduct a default hearing when a defendant responds to the 10-day notice as provided in paragraph (B), or when the defendant is arrested for failing to respond to the 10-day notice. If the default hearing cannot be held immediately, the issuing authority may set collateral as provided in Rule 523. However, the issuing authority should only set monetary collateral when he or she has determined that less restrictive conditions of release will not be effective in ensuring the defendant’s appearance.

Under paragraph (D)(1), when the issuing authority determines that a defendant is able to pay as ordered, the issuing authority may, as provided by law, impose imprisonment or other sanctions. In addition, delinquent restitution, fines, or court costs may be turned over to a private collection agency. See 42 Pa.C.S. § § 9730(b)(2) and 9730.1(a).

When a defendant is in default of an installment payment, the issuing authority on his or her own motion or at the request of the defendant or the attorney for the Commonwealth must schedule a rehearing to determine the cause of the default. Before an issuing authority may impose a sentence of imprisonment as provided by law for nonpayment of restitution, fines, or costs, a hearing or rehearing must be held whenever a defendant alleges that his or her ability to pay has been diminished. See 42 Pa.C.S. § 9730(b). No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 535 U.S. 654 (2002) and Scott v. Illinois, 440 U.S. 367 (1979). See also Commonwealth v. Farmer, 466 A.2d 677 (Pa. Super. 1983) (Whenever there is a likelihood in a proceeding that imprisonment will be imposed, counsel must be assigned) and (Commonwealth v. Spontarelli, 791 A.2d 1254 (Pa. Commw. 2002) (defendant is entitled to appointed counsel when tried for violation of municipal ordinance that permits imprisonment upon default of payment of the fine). See also Rules 121 and 122 (dealing with appearance or waiver of counsel).

When a rehearing is held on a payment schedule for fines or costs, the issuing authority may extend or accelerate the payment schedule, leave it unaltered, or sentence the defendant to a period of community service, as the issuing authority finds to be just and practicable under the circumstances. See 42 Pa.C.S. § 9730(b)(3).

This rule contemplates that when there has been an appeal pursuant to paragraph (E), the case would return to the issuing authority who presided at the default hearing for completion of the collection process.

Nothing in this rule is intended to preclude an issuing authority from imposing punishment for indirect criminal contempt when a defendant fails to pay fines and costs in accordance with an installment payment order, 42 Pa.C.S. § § 4137(a)(4), 4138(a)(3), and 4139(a)(3), or fails to pay restitution, 42 Pa.C.S. § 4137(a)(3). Separate Rules of Criminal Procedure govern contempt adjudications. See Chapter 1 Part D.

Official Note

Adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986; January 1, 1986 effective dates extended to July 1, 1986; Comment revised February 1, 1989, effective July 1, 1989; rescinded October 1, 1997, effective October 1, 1998. New Rule 85 adopted October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999; renumbered Rule 456 and amended March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; amended March 3, 2004, effective July 1, 2004; Comment revised April 1, 2005, effective October 1, 2005; Comment revised September 21, 2012, effective November 1, 2012; Comment revised January 17, 2013, effective May 1, 2013; amended April 10, 2015, effective July 10, 2015; Comment revised December 21, 2018, effective May 1, 2019.

Committee Explanatory Reports:

Final Report explaining the new rule published with the Court’s Order at 27 Pa.B. 5414 (October 18, 1997).

Final Report explaining the July 2, 1999 amendments to paragraph (C) published with the Court’s Order at 29 Pa.B. 3718 (July 17, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the August 7, 2003 changes to the Comment concerning failure to pay and juveniles published with the Court’s Order at 33 Pa.B. 4293 (August 30, 2003).

Final Report explaining the March 3, 2004 amendment to paragraph (B) published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

Final Report explaining the April 1, 2005 Comment revision concerning application of the Juvenile Court Procedural Rules published with the Court’s Order at 35 Pa.B. 2213 (April 16, 2005).

Final Report explaining the September 21, 2012 Comment revision correcting the typographical error in the fourth paragraph published with the Court’s Order at 42 Pa.B. 6251 (October 6, 2012).

Final Report explaining the January 17, 2013 revisions of the Comment concerning the Public School Code of 1949 published with the Court’s Order at 43 Pa.B. 656 (February 2, 2013).

Final Report explaining the April 10, 2015 amendments concerning the setting of collateral published with the Court’s Order at 45 Pa.B. 2045 (April 25, 2015).

Final Report explaining the December 21, 2018 revision of the Comment concerning commencement of dependency proceedings published with the Court’s Order at 49 Pa.B. 196 (January 12, 2019).

The provisions of this Rule 456 amended August 7, 2003, effective July 1, 2004, 33 Pa.B. 4289; amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended April 1, 2005, effective October 1, 2005, 35 Pa.B. 2210; amended September 21, 2012, effective November 1, 2012, 42 Pa.B. 6247; amended January 17, 2013, effective May 1, 2013, 43 Pa.B. 654; amended April 10, 2015, effective July 10, 2015, 45 Pa.B. 2040; amended December 21, 2018, effective May 1, 2019, 49 Pa.B. 190. Immediately preceding text appears at serial pages (382195) to (382196) and (376771) to (376772).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 457 Withdrawal of Charges in Summary Cases. {#sec-rule-457 omnilex-key=us-pa-regs-official--title-234--Rule 457}

(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.

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 551.

Official Note

Rule 87 adopted April 18, 1997, effective July 1, 1997; renumbered Rule 457 and Comment revised March 1, 2000, effective April 1, 2001.

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).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 458 Dismissal in Summary Cases Upon Satisfaction or Agreement. {#sec-rule-458 omnilex-key=us-pa-regs-official--title-234--Rule 458}

(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.

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 by agreement in summary cases, as defined in Rule 103, that have been appealed to the court of common pleas, see Rule 463.

For dismissal upon satisfaction or agreement in a court case charging a misdemeanor that is pending before an issuing authority, see Rule 546.

For dismissal upon satisfaction or agreement by a judge of the court of common pleas in court cases, see Rule 586.

Official Note

Rule 88 adopted April 18, 1997, effective July 1, 1997; renumbered Rule 458 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised January 27, 2021, effective June 1, 2021.

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).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the January 27, 2021 Comment revisions regarding dismissal by agreement of summary cases in the common pleas court published with the Court’s Order at 51 Pa.B. 688 (February 6, 2021).

The provisions of this Rule 458 amended January 27, 2021, effective June 1, 2021, 51 Pa.B. 684. Immediately preceding text appears at serial pages (376773) to (376774).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 460 Notice of Appeal; Transmittal of Transcript and Associated Documents. {#sec-rule-460 omnilex-key=us-pa-regs-official--title-234--Rule 460}

(a) When an appeal is authorized by law in a summary proceeding, including an appeal following a prosecution for violation of a municipal ordinance that provides for imprisonment upon conviction or upon failure to pay a fine, an appeal shall be perfected by filing a notice of appeal within 30 days after the entry of the guilty plea, the conviction, or other final order from which the appeal is taken. The notice of appeal shall be filed with the clerk of courts.

(b) The notice of appeal shall contain the following information:

(1) the name and address of the appellant;

(2) the name and address of the issuing authority who accepted the guilty plea or heard the case;

(3) the magisterial district number in which the case was heard;

(4) the name and mailing address of the affiant as shown on the complaint or citation;

(5) the date of the entry of the guilty plea, the conviction, or other final order from which the appeal is taken;

(6) the offense(s) of which convicted or to which a guilty plea was entered, if any;

(7) the sentence imposed, and if the sentence includes a fine, costs, or restitution, whether the amount due has been paid;

(8) the type or amount of bail or collateral, if any, furnished to the issuing authority;

(9) the name and address of the attorney, if any, filing the notice of appeal; and

(10) except when the appeal is from a guilty plea or a conviction, the grounds relied upon for appeal.

(c) Within five days after filing the notice of appeal, a copy shall be served either personally or by mail by the clerk of courts upon the issuing authority, the affiant, and the appellee or appellee’s attorney, if any.

(d) The issuing authority shall, within 20 days after receipt of the notice of appeal, file with the clerk of courts:

(1) the transcript of the proceedings;

(2) the original complaint or citation, or a copy thereof if electronically transmitting the transcript and associated documents, if any;

(3) the summons or warrant of arrest, if any; and

(4) the bail bond, if any.

(e) Electronic Transmission.

(1) The president judge by local rule may require the transcript and any associated documents to be electronically scanned and transmitted to the clerk of courts in digital format in lieu of transmitting the physical paper transcript and associated documents.

(2) The electronically scanned transcript and associated documents shall constitute the original documents for purposes of these rules.

(3) The issuing authority shall retain the physical paper transcript and associated documents as may be required by rule of court or records retention policies.

(f) This rule shall provide the exclusive means of appealing from a summary guilty plea or conviction. Courts of common pleas shall not issue writs of certiorari in such cases.

(g) This rule shall not apply to appeals from contempt adjudications.

This rule is derived from former Rule 86(A), (D), (E), (F), (H), and (I).

This rule applies to appeals in all summary proceedings, including appeals from prosecutions for violations of municipal ordinances that provide for the possibility of imprisonment, and default hearings. The narrow holding in City of Easton v. Marra, 326 A.2d 637 (Pa. Super. 1974), is not in conflict, since the record before the court did not indicate that imprisonment was possible under the ordinance there in question.

Subdivision (a) makes clear that in a summary criminal case the defendant may file an appeal for a trial de novo following the entry of a guilty plea.

Appeals from contempt adjudications are governed by Rule 141.

See Rule 461 for the procedures for executing a sentence of imprisonment when there is a stay.

‘‘Entry,’’ as used in this rule, means the date on which the issuing authority enters or records the guilty plea, the conviction, or other order in the magisterial district judge computer system.

When the only issues on appeal arise solely from an issuing authority’s determination after a default hearing pursuant to Rule 456, the matter must be heard de novo by the appropriate judge of the court of common pleas and only those issues arising from the default hearing are to be considered. It is not intended to reopen other issues not properly preserved for appeal. A determination after a default hearing would be a final order for purposes of these rules.

In electronically transmitted parking violation cases, because there is no original citation, the issuing authority would file the summons with the clerk of courts pursuant to subdivision (d)(3).

Rule 462(D) provides for the dismissal of an appeal when the defendant fails to appear for the trial de novo.

See Rule 462(F) regarding the retention of a case at the court of common pleas when a petition to file an appeal nunc pro tunc has been denied.

Certiorari was abolished by the Criminal Rules in 1973 pursuant to Article V Schedule Section 26 of the Constitution of Pennsylvania, which specifically empowers the Supreme Court of Pennsylvania to do so by rule. This Schedule section is still viable, and the substance of this Schedule section has also been included in the Judicial Code, 42 Pa.C.S. § 934. The abolition of certiorari continues with this rule.

For dismissal upon satisfaction or by agreement in summary cases, as defined in Rule 103, that have been appealed to the court of common pleas, see Rule 463.

The provisions of this Rule 460 amended March 3, 2000, effective July 1, 2000, 30 Pa.B. 1508; amended February 28, 2003, effective July 1, 2003, 33 Pa.B. 969 and 1324; amended December 29, 2017, effective April 1, 2018, 48 Pa.B. 224; amended January 27, 2021, effective June 1, 2021, 51 Pa.B. 684; amended May 2, 2024, effective April 1, 2025, 54 Pa.B. 2738. Immediately preceding text appears at serial pages (404404) to (404407).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 461 Stays. {#sec-rule-461 omnilex-key=us-pa-regs-official--title-234--Rule 461}

(A) In all summary cases in which a sentence of imprisonment has been imposed, execution of sentence shall be stayed until the time for appeal expires.

(B) In any summary case in which a notice of appeal is filed, the execution of sentence shall be stayed.

(C) A defendant who is represented by counsel, or a defendant who has waived counsel as provided in Rule 121, may waive the stay. The waiver must be in writing, signed by the defendant and defendant’s counsel, if any, and made a part of the record.

(D) Whenever the execution of sentence is stayed pursuant to this rule, the issuing authority shall release the defendant on recognizance unless the issuing authority has reasonable grounds to believe that the defendant will not appear, in which case, the issuing authority may set collateral as provided in Rule 523.

(1) In determining whether it is necessary to set collateral and what amount of collateral should be set, the issuing authority shall consider the factors listed in Rule 523 and the length of sentence in relation to the length of the stay.

(2) The issuing authority shall state in writing the reason(s) why any collateral other than release on recognizance has been set and the facts that support a determination that the defendant has the ability to pay monetary collateral.

(3) If the defendant is incarcerated during the period of a stay for failure to post collateral, in no event shall the defendant be incarcerated for a period greater than the period of imprisonment awarded in the original sentence.

(E) During the 30-day appeal period, failure to pay fine and costs, or restitution, shall not be grounds for imprisonment, and shall not be grounds to preclude the taking of an appeal.

This rule is derived from former Rule 86(B) and (C).

The stay of the sentence of imprisonment in summary cases recognizes the limited length of the terms of imprisonment. However, there may be situations when the defendant would want the sentence to begin to run immediately following the conviction, and forego the benefits of the stay. To accommodate these extraordinary cases, this rule was amended in 2003 to permit a defendant who is represented by counsel, or who has waived counsel, to waive the stay of the execution of sentence. The waiver of the stay in no way is to be construed as a waiver of the right to appeal.

When a defendant has waived the stay of execution of sentence under this rule, the issuing authority has discretion to determine the date to set for the beginning of the sentence of imprisonment.

Under paragraph (B), the stay applies to all ‘‘sentences’’ imposed after conviction, including sentences of imprisonment, fines and costs, or restitution, and sentences of imprisonment for defaults in payment pursuant to Rule 456.

Paragraph (D) permits an issuing authority to require the defendant to post collateral during the stay pending appeal. However, given the potentially short sentences in such cases, imprisoning a defendant during the stay period for failure to post collateral is contrary to the intent of the stay provision of this rule.

Official Note

Formerly Rule 86(B) and (C), adopted October 1, 1997, effective October 1, 1998; rescinded March 1, 2000, effective April 1, 2001, and paragraphs (B) and (C) replaced by Rule 461. New Rule 461 adopted March 1, 2000, effective April 1, 2001; amended February 28, 2003, effective July 1, 2003; amended April 10, 2015, effective July 10, 2015.

Committee Explanatory Reports:

FORMER RULE 86(B) AND (C):

Final Report explaining the October 1, 1997 addition of paragraphs (B) and (C) to Rule 86 published with the Court’s Order at 27 Pa.B. 5408 (October 18, 1997).

NEW RULE 461:

Final Report explaining the reorganization and renumbering of the rules and the provisions of Rule 461 published at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the February 28, 2003 amendment concerning the addition of paragraph (C) published with the Court’s Order at 33 Pa.B. 1326 (March 15, 2003).

Final Report explaining the April 10, 2015 amendment concerning the setting of collateral published with the Court’s Order at 45 Pa.B. 2045 (April 25, 2015).

The provisions of this Rule 461 amended February 28, 2003, effective July 1, 2003, 33 Pa.B. 1324; amended April 10, 2015, effective July 10, 2015, 45 Pa.B. 2040. Immediately preceding text appears at serial pages (372130) to (372131).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 462 Trial De Novo. {#sec-rule-462 omnilex-key=us-pa-regs-official--title-234--Rule 462}

(A) When a defendant appeals after the entry of a guilty plea or a conviction by an issuing authority in any summary proceeding, upon the filing of the transcript and other papers by the issuing authority, the case shall be heard de novo by the judge of the court of common pleas sitting without a jury.

(B) The attorney for the Commonwealth may appear and assume charge of the prosecution. When the violation of an ordinance of a municipality is charged, an attorney representing that municipality, with the consent of the attorney for the Commonwealth, may appear and assume charge of the prosecution. When no attorney appears on behalf of the Commonwealth, the affiant may be permitted to ask questions of any witness who testifies.

(C) In appeals from summary proceedings arising under the Vehicle Code or local traffic ordinances, other than parking offenses, the law enforcement officer who observed the alleged offense must appear and testify. The failure of a law enforcement officer to appear and testify shall result in the dismissal of the charges unless:

(1) the defendant waives the presence of the law enforcement officer in open court on the record;

(2) the defendant waives the presence of the law enforcement officer by filing a written waiver signed by the defendant and defense counsel, or the defendant if proceeding pro se, with the clerk of courts; or

(3) the trial judge determines that good cause exists for the law enforcement officer’s unavailability and grants a continuance.

(D) If the defendant fails to appear, the trial judge may dismiss the appeal and enter judgment in the court of common pleas on the judgment of the issuing authority.

(E) If the defendant withdraws the appeal, the trial judge shall enter judgment in the court of common pleas on the judgment of the issuing authority.

(F) If the defendant has petitioned the trial judge to permit the taking of an appeal nunc pro tunc and this petition is denied, the trial judge shall enter judgment in the court of common pleas on the judgment of the issuing authority.

(G) The verdict and sentence, if any, shall be announced in open court immediately upon the conclusion of the trial, or, in cases in which the defendant may be sentenced to intermediate punishment, the trial judge may delay the proceedings pending confirmation of the defendant’s eligibility for intermediate punishment.

(H) At the time of sentencing, the trial judge shall:

(1) if the defendant’s sentence includes restitution, a fine, or costs, state:

(a) the amount of the fine and the obligation to pay costs;

(b) the amount of restitution ordered, including

(i) the identity of the payee(s),

(ii) to whom the restitution payment shall be made, and

(iii) whether any restitution has been paid and in what amount; and

(c) the date on which payment is due.

If the defendant is without the financial means to pay the amount in a single remittance, the trial judge may provide for installment payments and shall state the date on which each installment is due;

(2) advise the defendant of the right to appeal to the Superior Court within 30 days of the imposition of sentence, and that, if an appeal is filed, the execution of sentence will be stayed and the trial judge may set bail;

(3) if a sentence of imprisonment has been imposed, direct the defendant to appear for the execution of sentence on a date certain unless the defendant files a notice of appeal within the 30-day period; and

(4) issue a written order imposing sentence, signed by the trial judge. The order shall include the information specified in paragraphs (H)(1) through (H)(3), and a copy of the order shall be given to the defendant.

(I) After sentence is imposed by the trial judge, the case shall remain in the court of common pleas for the execution of sentence, including the collection of any fine and restitution, and for the collection of any costs.

This rule is derived from former Rule 86(G) and former Rule 1117(c).

This rule was amended in 2000 to make it clear in a summary criminal case that the defendant may file an appeal for a trial de novo following the entry of a guilty plea.

‘‘Entry,’’ as used in paragraph (A) of this rule, means the date on which the issuing authority enters or records the guilty plea, the conviction, or other order in the magisterial district judge computer system.

The procedures for conducting the trial de novo in the court of common pleas set forth in paragraphs (B), (G), and (H) are comparable to the summary case trial procedures in Rule 454 (Trial in Summary Cases).

Pursuant to paragraph (B), the decision whether to appear and assume control of the prosecution of the trial de novo is solely within the discretion of the attorney for the Commonwealth. When no attorney appears at the trial de novo on behalf of the Commonwealth or a municipality, the trial judge may ask questions of any witness who testifies, and the affiant may request the trial judge to ask specific questions. In the appropriate circumstances, the trial judge also may permit the affiant to question Commonwealth witnesses, cross-examine defense witnesses, and make recommendations about the case to the trial judge.

The provisions of paragraph (C) that permit the court to continue the case if there is good cause for the officer’s unavailability were added in response to Commonwealth v. Hightower, 652 A.2d 873 (Pa. Super. 1995).

Paragraph (D) makes it clear that the trial judge may dismiss a summary case appeal when the judge determines that the defendant is absent without cause from the trial de novo. If the appeal is dismissed, the trial judge should enter judgment and order execution of any sentence imposed by the issuing authority.

New paragraph (F) was added in 2017 to clarify that in a case in which a defendant seeks to file an appeal nunc pro tunc, and the common pleas judge denies that petition, the case will remain at the court of common pleas. This is consistent with the long-standing policy under the rules that once a case has moved from the minor judiciary to the court of common pleas, the case remains at common pleas.

Paragraph (G) was amended in 2008 to permit a trial judge to delay imposition of sentence in order to investigate a defendant’s eligibility for intermediate punishment for certain offenses, including summary violations of 75 Pa.C.S. § 1543(b) (driving while license is under a DUI-related suspension), but only if he or she meets certain eligibility requirements, such as undergoing a drug and alcohol assessment. Potentially this information may not be available to the trial judge following a trial de novo at the time of sentencing.

Pursuant to paragraph (H), if the defendant is convicted, the trial judge must impose sentence, and advise the defendant of the payment schedule, if any, and the defendant’s appeal rights. See Rule 704(A)(3) and Rule 720(D). No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 535 U.S. 654 (2002), Scott v. Illinois, 440 U.S. 367 (1979), and Argersinger v. Hamlin, 407 U.S. 25 (1972).

Certain costs are mandatory and must be imposed. See, e.g., Section 1101 of the Crime Victims Act, 18 P.S. § 11.1101.

Once sentence is imposed, paragraph (I) makes it clear that the case is to remain in the court of common pleas for execution of the sentence and collection of any costs, and the case may not be returned to the magisterial district judge. The execution of sentence includes the collection of any fines and restitution.

For the procedure to dismiss upon satisfaction or by agreement a summary case, as defined in Rule 103, that has been appealed to the court of common pleas, see Rule 463.

For the procedures concerning sentences that include restitution in court cases, see Rule 705.1.

For the procedures for appeals from the Philadelphia Municipal Court Traffic Division, see Rule 1037.

Official Note

Former Rule 86 adopted July 12, 1985, effective January 1, 1986; revised September 23, 1985, effective January 1, 1986; the January 1, 1986 effective dates extended to July 1, 1986; amended February 2, 1989, effective March 1, 1989; amended March 22, 1993, effective January 1, 1994; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; amended February 27, 1995, effective July 1, 1995; amended October 1, 1997, effective October 1, 1998; amended May 14, 1999, effective July 1, 1999; rescinded March 1, 2000, effective April 1, 2001, and paragraph (G) replaced by Rule 462. New Rule 462 adopted March 1, 2000, effective April 1, 2001; amended March 3, 2000, effective July 1, 2000; amended February 28, 2003, effective July 1, 2003; Comment revised March 26, 2004, effective July 1, 2004; amended January 18, 2007, effective August 1, 2007; amended December 16, 2008, effective February 1, 2009; Comment revised October 16, 2009, effective February 1, 2010; Comment revised May 7, 2014, effective immediately; amended March 9, 2016, effective July 1, 2016; amended December 29, 2017, effective April 1, 2018; Comment revised January 27, 2021, effective June 1, 2021.

Committee Explanatory Reports:

FORMER RULE 86:

Final Report explaining the March 22, 1993 amendments to former Rule 86 published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).

Final Report explaining the October 28, 1994 amendments to former Rule 86 published with the Court’s Order at 24 Pa.B. 5843 (November 26, 1994).

Final Report explaining the February 27, 1995 amendments to former Rule 86 published with the Court’s Order at 25 Pa.B. 935 (March 18, 1995).

Final Report explaining the October 1, 1997 amendments to former Rule 86 concerning stays published with the Court’s Order at 27 Pa.B. 5413 (October 18, 1997).

Final Report explaining the May 14, 1999 amendments to former Rule 86, paragraph (G), concerning the police officer’s presence published with the Court’s Order at 29 Pa.B. 2776 (May 29, 1999).

NEW RULE 462:

Final Report explaining the reorganization and renumbering of the rules and the provisions of Rule 462 published at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 3, 2000 amendments concerning appeals from guilty pleas published with the Court’s Order at 30 Pa.B. 1508 (March 18, 2000).

Final Report explaining the February 28, 2003 amendments published with the Court’s Order at 33 Pa.B. 1326 (March 15, 2003).

Final Report explaining the March 26, 2004 Comment revision published with the Court’s Order at 34 Pa.B. 1931 (April 10, 2004).

Final Report explaining the January 18, 2007 amendment to paragraph (G)(2) published with the Court’s Order at 37 Pa.B. 526 (February 3, 2007).

Final Report explaining the December 16, 2008 amendments to permit delay in sentencing for determination of intermediate punishment status published with the Court’s Order at 39 Pa.B. 8 (January 3, 2009).

Final Report explaining the October 16, 2009 Comment revision regarding new Rule 1037 and procedures for the appeal from the Philadelphia Traffic Court published with the Court’s Order at 39 Pa.B. 6329 (October 31, 2009).

Final Report explaining the May 7, 2014 Comment revision changing the cross-reference to the Philadelphia Traffic Court to the Traffic Division of the Philadelphia Municipal Court published with the Court’s Order at 44 Pa.B. 3065 (May 24, 2014).

Final Report explaining the March 9, 2016 amendments to paragraph (G) concerning required elements of the sentence published with the Court’s Order at 46 Pa.B. 1540 (March 26, 2016).

Final Report explaining the December 29, 2017 amendments regarding appeals nunc pro tunc published with the Court’s Order at 48 Pa.B. 226 (January 13, 2018).

Final Report explaining the January 27, 2021 Comment revisions regarding dismissal by agreement of summary cases in the common pleas court pursuant to Rule 458 published with the Court’s Order at 51 Pa.B. 688 (February 6, 2021).

The provisions of this Rule 462 amended March 3, 2000, effective July 1, 2000, 30 Pa.B. 1508; amended February 28, 2003, effective July 1, 2003, 33 Pa.B. 1324; amended March 26, 2004, effective July 1, 2004, 34 Pa.B. 1929; amended February 2, 2007, effective August 1, 2007; amended October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B. 3056; amended March 9, 2016, effective July 1, 2016, 46 Pa.B. 1532; amended December 29, 2017, effective April 1, 2018, 48 Pa.B. 224; amended January 27, 2021, effective June 1, 2021, 51 Pa.B. 684. Immediately preceding text appears at serial pages (390246) to (390249).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 463 Dismissal of Summary Cases Upon Satisfaction or by Agreement in the Court of Common Pleas. {#sec-rule-463 omnilex-key=us-pa-regs-official--title-234--Rule 463}

When a defendant is charged in a summary case, as defined in Rule 103, that is before the court of common pleas, the judge of the court of common pleas may dismiss the case upon a showing that:

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

(B) 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;

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

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

This rule permits a judge of the court of common pleas to dismiss a summary case when the provisions of paragraph (A) through (D) are satisfied. This includes the situation when the summary case is before the court of common pleas pursuant to a summary appeal filed pursuant to Rule 462.

The requirement in paragraph (B) 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 judge discretion to dismiss a case under this rule, even when the affiant refuses to consent.

For dismissal upon satisfaction or agreement in a court case charging a misdemeanor that is pending before an issuing authority, see Rule 546.

For dismissal upon satisfaction or agreement by a judge of the court of common pleas in court cases, see Rule 586.

Official Note

New Rule 463 adopted January 27, 2021, effective June 1, 2021.

Committee Explanatory Reports:

Final Report explaining the adoption of new Rule 463 regarding dismissal by agreement of summary cases in the common pleas court published with the Court’s Order at 51 Pa.B. 688 (February 6, 2021).

The provisions of this Rule 463 adopted January 27, 2021, effective June 1, 2021, 51 Pa.B. 684.

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 470 Procedures Related to License Suspension After Failure to Respond to Citation or Summons or Failure to Pay Fine and Costs. {#sec-rule-470 omnilex-key=us-pa-regs-official--title-234--Rule 470}

(A) When a defendant fails to comply with the 10-day response period set forth in Rules 407, 412, 422, and 456, the issuing authority shall notify the defendant in writing that, pursuant to Section 1533 of the Vehicle Code, the defendant’s license will be suspended if the defendant fails to respond to the citation or summons or fails to pay all fines and costs imposed or enter into an agreement to make installment payments for the fines and costs within 15 days of the date of the notice.

(B) Service of the notice required in paragraph (A) shall be by first class mail, and a copy shall be made part of the record.

(C) If the defendant does not respond by the fifteenth day, the issuing authority shall so notify the Pennsylvania Department of Transportation. The notice shall be sent by electronic transmission in the form prescribed by the Pennsylvania Department of Transportation. The issuing authority shall print out and sign a copy of the notice, which shall include the date and time of the transmission, and the signed copy shall be made part of the record.

(D) If the defendant responds to the citation or summons or pays all fines and costs imposed or enters into an agreement to make installment payments for the fines and costs imposed after notice has been sent pursuant to paragraph (C), the issuing authority shall so notify the Pennsylvania Department of Transportation and request the withdrawal of the defendant’s license suspension. The notice and request shall be sent by electronic transmission. The issuing authority shall print out and sign a copy of the notice and request, which shall include the date and time of the transmission, and the signed copy shall be made part of the record.

(E) Upon request of the defendant, the attorney for the Commonwealth, or any other government agency, the issuing authority’s office shall provide a certified copy of any notices or any request form required by this rule.

This rule was adopted in 1993, and amended in 2011, to implement the notice requirements of 75 Pa.C.S. § 1533 and to insure uniform, prompt transmissions to the Department of Transportation. It does not change the other procedural requirements contained in the summary case rules generally. See, e.g, paragraph (B)(1)(a) of Rule 430 (Issuance of Warrant) and Rule 456 (Default Procedures: Restitution, Fines, and Costs).

This rule is not intended to address the admissibility of evidence. See the Pennsylvania Rules of Evidence and 42 Pa.C.S. § 6101 et seq. concerning the Rules of Evidence for documents.

Under paragraph (E), the issuing authority is required to provide a certified copy of the report, but only if the request is made within the period that the issuing authority is required to retain the records.

Electronic transmissions are to be made from the Magisterial District Judge System or other computer system used by issuing authorities.

Official Note

Previous Rule 91, formerly Rule 140, adopted January 31, 1970, effective May 1, 1970; renumbered Rule 69 September 18, 1973, effective January 1, 1974; Comment revised January 28, 1983, effective July 1, 1983; rescinded July 12, 1985, effective January 1, 1986. The January 1, 1986 effective date is extended to July 1, 1986. Readopted and renumbered Rule 91 February 1, 1989, effective July 1, 1989; rescinded June 3, 1993, effective July 1, 1993, and replaced by new Rule 92. New Rule 91 adopted June 3, 1993, effective July 1, 1993; renumbered Rule 470 and amended March 1, 2000, effective April 1, 2001; amended February 18, 2011, effective March 18, 2011.

Committee Explanatory Reports:

Report explaining the provisions of the new rule published with the Court’s Order at 23 Pa.B. 2811 (June 19, 1993).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the February 18, 2011 amendments to paragraphs (A) and (D) adding failure to pay fines and costs published with the Court’s Order at 41 Pa.B. 1168 (March 5, 2011).

The provisions of this Rule 470 amended February 18, 2011, effective March 18, 2011, 41 Pa.B. 1167. Immediately preceding text appears at serial pages (346214) and (353007).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 471 Disposition Report. {#sec-rule-471 omnilex-key=us-pa-regs-official--title-234--Rule 471}

(A) The issuing authority shall report to the Pennsylvania Department of Transportation the disposition of all summary cases arising under the Vehicle Code. The report shall be sent by electronic transmission in the form prescribed by the Department.

(B) The issuing authority shall print out and sign a copy of the report, which shall include the date and time of the transmission, and a certification as to the adjudication, the sentence, if any, and the final disposition. The copy shall be made part of the record.

(C) Upon the request of the defendant, the attorney for the Commonwealth, or any other government agency, the issuing authority’s office shall provide a certified copy of the report required by this rule.

See Rule 1101 for suspension of Acts of Assembly.

This rule does not address the admissibility of evidence. See the Pennsylvania Rules of Evidence and 42 Pa.C.S. § 6101 et seq. concerning the Rules of Evidence for documents.

Under paragraph (C), the issuing authority is required to provide a certified copy of the report, but only if the request is made within the period that the issuing authority is required to retain the records.

Official Note

Rule 92 adopted June 3, 1993, effective July 1, 1993; renumbered Rule 471 and amended March 1, 2000, effective April 1, 2001; Comment revised June 16, 2014, effective July 16, 2014.

Committee Explanatory Reports:

Report explaining the provisions of the new rule published with the Court’s Order at 23 Pa.B. 2811 (June 19, 1993).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the June 16, 2014 Comment revision published with the Court’s Order at 44 Pa.B. 4169 (July 5, 2014).

The provisions of this Rule 471 amended June 16, 2014, effective July 16, 2014, 44 Pa.B. 4168. Immediately preceding text appears at serial pages (356211) to (356212).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 490 Procedure for Obtaining Expungement in Summary Cases; Expungement Order. {#sec-rule-490 omnilex-key=us-pa-regs-official--title-234--Rule 490}

(a) Petition for Expungement.

(1) Except as provided in Rule 320 (Procedure for Expungement Upon Successful Completion of ARD Program) and Rule 490.2 (Procedure for Expungement of Acquittals in Summary Cases; Expungement Order), an individual who satisfies the requirements of 18 Pa.C.S. § 9122 and 18 Pa.C.S. § 9123(a) for expungement of a summary case may request expungement by filing a petition with the clerk of the courts of the judicial district in which the charges were disposed.

(2) The petition shall set forth:

(i) the petitioner’s name and any aliases that the petitioner has used, address, date of birth, and social security number;

(ii) the name and address of the issuing authority who accepted the guilty plea or heard the case;

(iii) the name and mailing address of the affiant as shown on the complaint or citation, if available;

(iv) the magisterial district court number;

(v) the docket number;

(vi) the date on the citation or complaint, or the date of arrest, and, if available, the criminal justice agency that made the arrest;

(vii) the specific charges, as they appear on the charging document, to be expunged;

(viii) the disposition and, if the sentence includes a fine, costs, or restitution, whether the amount due has been paid;

(ix) the reason(s) for expungement; and

(x) a verification by the petitioner that facts set forth in the petition are true and correct to the best of the petitioner’s personal knowledge or information and belief. The verification may be by a sworn affidavit or by an unsworn written statement that the facts are verified subject to the penalties for unsworn falsification to authorities under the Crimes Code § 4904, 18 Pa.C.S. § 4904.

Additional information shall not be required by local rule or practice.

(3) Unless the attorney for the Commonwealth agrees to waive this requirement, a current copy of the petitioner’s Pennsylvania State Police criminal history report shall be attached to the petition. The copy shall be obtained from the Pennsylvania State Police within 60 days before filing the petition. Absent a waiver by the attorney for the Commonwealth, the judge shall not rule upon the petition until the Pennsylvania State Police criminal history report is filed.

(4) A copy of the petition shall be served on the attorney for the Commonwealth concurrently with filing.

(b) Objections; Hearing.

(1) Within 30 days after service of the petition, the attorney for the Commonwealth shall file a consent or objection to the petition or take no action. The attorney for the Commonwealth’s consent or objection shall be filed with the clerk of courts, and copies shall be served on the petitioner’s attorney, or the petitioner if unrepresented.

(2) Upon receipt of the attorney for the Commonwealth’s response, or no later than 14 days after the expiration of the 30-day period in subdivision (b)(1), the judge shall grant or deny the petition or shall schedule a hearing.

(3) At the hearing, if any, the parties shall be afforded an opportunity to be heard. Following the hearing, the judge promptly shall enter an order granting or denying the petition.

(4) If the judge grants the petition for expungement, the judge shall enter an order directing expungement.

(i) The order shall contain the information required in subdivision (c).

(ii) Except when the attorney for the Commonwealth has filed a consent to the petition pursuant to subdivision (b)(1), the order shall be stayed for 30 days pending an appeal. If a timely notice of appeal is filed, the expungement order is stayed pending the disposition of the appeal and further order of court.

(5) If the judge denies the petition for expungement, the judge shall enter an order denying the petition and stating the reasons for the denial.

(c) Order.

(1) Every order for expungement shall include:

(i) the petitioner’s name and any aliases that the petitioner has used, address, date of birth, and social security number;

(ii) the name and address of the issuing authority who accepted the guilty plea or heard the case;

(iii) the name and mailing address of the affiant as shown on the complaint or citation, if available;

(iv) the magisterial district court number;

(v) the docket number;

(vi) the date on the citation or complaint, or the date of arrest, and, if available, the criminal justice agency that made the arrest;

(vii) the specific charges, as they appear on the charging document, to be expunged;

(viii) the disposition and, if the sentence includes a fine, costs, or restitution, whether the amount due has been paid;

(ix) the reason(s) for expungement; and

(x) the criminal justice agencies upon which certified copies of the order shall be served.

Additional information shall not be required by local rule or practice.

(2) The clerk of courts shall serve a certified copy of the order to each criminal justice agency identified in the court’s order and to all other entities required to be notified by statute.

This rule, adopted in 2010, provides the procedures for requesting and ordering expungement in summary cases. Any case in which a summary offense is filed with a misdemeanor, felony, or murder of the first, second, or third degree is a court case (see Rule 103). The petition for expungement of the summary offense in such a case would proceed under Rule 790.

This rule was amended in 2019 to clarify that the procedures under this rule are to be used for summary convictions for offenses committed when the defendant is under 18 years of age. This would include any summary conviction that also has been certified to juvenile court pursuant to Pa.R.J.C.P. 200(3) and 42 Pa.C.S. § 6304.1. In such cases, two expungement petitions would need to be filed: one would be filed pursuant to Pa.R.J.C.P. 170 to expunge the record of the juvenile proceeding and the second would be filed pursuant to Pa.R.Crim.P. 490 to expunge the underlying summary conviction.

See also Rule 320 (Procedure for Expungement Upon Successful Completion of ARD Program); Rule 790 (Procedure for Obtaining Expungement in Court Cases; Expungement Order); Rule 791 (Procedure for Obtaining Order for Limited Access in Court Cases; Order for Limited Access); 35 P.S. § 780-119 for expungement procedures under the Controlled Substance, Drug, Device, and Cosmetic Act; and for expungement procedures in cases satisfying the requirements of 18 Pa.C.S. § 9122(a)(4) regarding complete acquittals, see Rule 490.2 (Procedure for Expungement of Acquittals in Summary Cases; Expungement Order) and Rule 790.2 (Procedure for Expungement of Acquittals in Court Cases; Expungement Order).

This rule sets forth the only information that is to be included in every expungement petition and order.

Subdivision (a)(3) requires the petitioner to attach a copy of his or her criminal history report to the petition. The attorney for the Commonwealth may waive the requirement that the criminal history report be attached to the petition. The Commonwealth’s agreement to the waiver may be made orally or in writing, or averred in the petition.

A form petition and form order of expungement has been created by the Administrative Office of Pennsylvania Courts, in consultation with the Committee, and is available at the following website: http://www.pacourts.us/forms/for-the-public.

‘‘Petition,’’ as used in this rule, is a ‘‘motion’’ for purposes of Rules 575, 576, and 577.

The ‘‘reason for expungement’’ in subdivisions (a)(2)(ix) and (c)(1)(ix) means, for example, acquittal, arrest or prosecution free for five years following the conviction for that summary offense, or age.

For the procedures for filing and service of petitions, see Rule 576.

For the procedures for filing and service of orders, see Rule 114.

For purposes of this rule, ‘‘criminal justice agency’’ includes police departments, county detectives, and other law enforcement agencies. See also 18 Pa.C.S. § 9102.

Subdivision (c)(2) requires the clerk of courts to serve each criminal justice agency identified in the court’s order as well as all other entities required to be notified by statute. See, e.g., 18 Pa.C.S. § 9122(a)(3) (requiring the court to order the expungement of all administrative records of the Department of Transportation relating to a conviction pursuant to 18 Pa.C.S. § 6308 when that conviction is ordered to be expunged).

Concerning standing, see In Re Administrative Order No. 1-MD-2003, 936 A.2d 1 (Pa. 2007); Commonwealth v. J.H., 759 A.2d 1269 (Pa. 2000).

The provisions of this Rule 490 amended November 1, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended March 1, 2019, effective July 1, 2019, 49 Pa.B. 1118; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (396222) to (396225).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 490.1 Procedure for Obtaining Expungement of Truancy Cases; Expungement Order. {#sec-rule-490.1 omnilex-key=us-pa-regs-official--title-234--Rule 490.1}

(A) PETITION FOR EXPUNGEMENT

(1) An individual who satisfies the requirements of 24 P.S. § 13-1333.3(h) for expungement of a summary truancy case may request expungement by filing a petition with the issuing authority by whom the charges were disposed.

(2) The petition shall set forth:

(a) the petitioner’s name and any aliases that the petitioner has used, address, date of birth, and social security number;

(b) the name and address of the issuing authority who accepted the guilty plea or heard the case;

(c) the name and mailing address of the affiant as shown on the complaint or citation, if available;

(d) the magisterial district court number;

(e) the docket number;

(f) the school from which the petitioner had been found to be truant;

(g) the date on the citation or complaint, or the date of arrest, and, if available, and the criminal justice agency that made the arrest;

(h) the specific charges, as they appear on the charging document, to be expunged;

(i) the disposition and, if the sentence includes a fine, costs, or restitution, whether the amount due has been paid;

(j) that the petitioner has satisfied the requirements of 24 P.S. § 13-1333.3(h) for expungement; and

(k) a verification by the petitioner that facts set forth in the petition are true and correct to the best of the petitioner’s personal knowledge or information and belief. The verification may be by a sworn affidavit or by an unsworn written statement that the facts are verified subject to the penalties for unsworn falsification to authorities under the Crimes Code § 4904, 18 Pa.C.S. § 4904.

Additional information shall not be required by local rule or practice.

(3) A copy of the petitioner’s high school diploma, a Commonwealth secondary school diploma or another department of education-approved equivalent, or documentation that the petitioner is subject to an exception to compulsory attendance under 24 P.S. § 13-1330 shall be attached to the petition.

(4) A copy of the petition shall be served on the affiant, the attorney for the Commonwealth and the school from which the petitioner had been found to be truant concurrently with filing.

(B) OBJECTIONS; HEARING

(1) Within 30 days after service of the petition, the school, the affiant, or the attorney for the Commonwealth shall file a consent or objection to the petition or take no action. The school’s, affiant’s, or attorney for the Commonwealth’s consent or objection shall be filed with the issuing authority, and copies shall be served on the petitioner’s attorney, or the petitioner if unrepresented.

(2) Upon receipt of the school, the affiant, or the attorney for the Commonwealth’s response, or no later than 14 days after the expiration of the 30-day period in paragraph (B)(1), the issuing authority shall grant or deny the petition or shall schedule a hearing.

(3) At the hearing, if any, the petitioner, the affiant and the attorney for the Commonwealth and the school from which the petitioner had been found to be truant shall be afforded an opportunity to be heard. Following the hearing, the issuing authority promptly shall enter an order granting or denying the petition.

(4) If the issuing authority grants the petition for expungement, the issuing authority shall enter an order directing expungement.

(a) The order shall contain the information required in paragraph (C).

(b) Except when the school, the affiant, or the attorney for the Commonwealth has filed a consent to the petition pursuant to paragraph (B)(1), the order shall be stayed for 30 days pending an appeal. If a timely notice of appeal is filed, the expungement order is stayed pending the disposition of the appeal and further order of court.

(5) If the issuing authority denies the petition for expungement, the issuing authority shall enter an order denying the petition and stating the reasons for the denial.

(6) The issuing authority shall issue the order granting or denying the petition in writing, with copies to the school, the affiant, or the attorney for the Commonwealth, and shall make the order a part of the docket.

(C) ORDER

(1) Every order for expungement shall include:

(a) the petitioner’s name and any aliases that the petitioner has used, address, date of birth, and social security number;

(b) the name and address of the issuing authority who accepted the guilty plea or heard the case;

(c) the name and mailing address of the affiant as shown on the complaint or citation, if available;

(d) the magisterial district court number;

(e) the docket number;

(f) the school from which the petitioner had been found to be truant;

(g) the date on the citation or complaint, or the date of arrest, and, if available, the criminal justice agency that made the arrest;

(h) the specific charges, as they appear on the charging document, to be expunged;

(i) the disposition and, if the sentence includes a fine, costs, or restitution, whether the amount due has been paid;

(j) a statement that the petitioner has satisfied the requirements of 24 P.S. § 13-1333.3(h) for expungement; and

(k) the criminal justice agencies upon which certified copies of the order shall be served.

Additional information shall not be required by local rule or practice.

(2) The issuing authority shall serve a certified copy of the order to the school from which the petitioner had been found to be truant, the Pennsylvania Department of Transportation and to each criminal justice agency identified in the order.

This rule, adopted in 2018, provides the procedures for requesting and ordering expungement in summary truancy cases as provided in 24 P.S. § 13-1333.3(h). If the issuing authority finds the petitioner has satisfied the statutory conditions, the issuing authority shall grant the petition.

As provided by statute, expungement petitions in truancy cases may be filed in a magisterial district court, a court of common pleas, or the Philadelphia Municipal Court. See 24 P.S. § 13-1333.2. The use of the term ‘‘issuing authority’’ in this rule is intended to encompass all of these courts.

Although magisterial district courts are not courts of record, provisions requiring certain occurrences, such as the entry of the expungement order, to be made ‘‘on the record’’ may be accomplished in the magisterial district court by documentation of these occurrences in the case record and the case docket. See Rule 135.

Paragraph (A)(4) provides for service of the petition upon the affiant, or the attorney for the Commonwealth, and the school from which the petitioner had been found to be truant. This is to provide an opportunity to challenge the petition and the facts supporting the petition.

See Rule 490 for the procedures for expungement of summary cases other than truancy, including those cases in which a summary case has resulted in the filing of a delinquency or dependency petition in juvenile court as a result of a failure to comply with the summary case sentence. See also Rule 320 for the procedures for expungement following the successful completion of an ARD program in a summary case and Rule 790 for court case expungement procedures.

This rule sets forth the only information that is to be included in every expungement petition and order.

A form petition and form order of expungement has been created by the Administrative Office of Pennsylvania Courts, in consultation with the Committee, and is available at the following website: http://www.pacourts.us/forms/for-the-public.

‘‘Petition,’’ as used in this rule, is a ‘‘motion’’ for purposes of Rules 575, 576, and 577. The term ‘‘petition’’ is used in recognition that motion practice usually is not conducted in magisterial district courts and that the expungement procedure under this rule is an exception to this general concept.

For the procedures for filing and service of petitions, see Rule 576.

For the procedures for filing and service of orders, see Rule 114.

For purposes of this rule, ‘‘criminal justice agency’’ includes police departments, county detectives, and other law enforcement agencies. See also 18 Pa.C.S. § 9102.

Concerning standing, see In Re Administrative Order No. 1-MD-2003, 936 A.2d 1 (Pa. 2007); Commonwealth v. J.H., 759 A.2d 1269 (Pa. 2000).

Official Note

Adopted December 20, 2018, effective April 1, 2018; Comment revised March 1, 2019, effective July 1, 2019.

Committee Explanatory Reports:

Final Report explaining new Rule 490.1 regarding procedures for expungement in truancy cases published with the Court’s Order at 49 Pa.B. 196 (January 12, 2019).

Final Report explaining the March 1, 2019 Comment revision regarding procedures for expungement in non-truancy cases published with the Court’s Order at 49 Pa.B. 1121 (March 16, 2019).

The provisions of this Rule 490.1 adopted December 21, 2018, effective May 1, 2019, 49 Pa.B. 190; amended March 1, 2019, effective July 1, 2019, 49 Pa.B. 1118. Immediately preceding text appears at serial pages (395826) to (395829).

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

234 Pa. Code Rule 490.2 Procedure for Expungement of Acquittals in Summary Cases; Expungement Order. {#sec-rule-490.2 omnilex-key=us-pa-regs-official--title-234--Rule 490.2}

(a) Notice of Acquittal.

(1) In any summary case in which the defendant has been acquitted of all charges as provided in 18 Pa.C.S. § 9122(a)(4), the issuing authority shall promptly, but no later than 20 days after acquittal, notify either the clerk of courts of the judicial district in which the charges were disposed or, if the charges were disposed of in the Philadelphia Municipal Court, the clerk of Municipal Court.

(2) Within 10 days of receipt of the notification from the issuing authority, the clerk of courts or the clerk of Municipal Court, whichever applies, shall notify the defendant, defense counsel, if any, and the attorney for the Commonwealth that the case shall be ordered expunged, unless an objection is filed by the attorney for the Commonwealth.

(3) Thereafter, the case shall proceed as provided in subdivisions (b) and (c) of this rule.

(4) The notice issued by the clerk of courts or by the clerk of Municipal Court under subdivision (a)(2) shall set forth:

(i) the defendant’s name and any aliases that the defendant has used, address, date of birth, and social security number;

(ii) the name and address of the issuing authority who heard the case;

(iii) the name and mailing address of the affiant as shown on the complaint or citation, if available;

(iv) the magisterial district court number, if applicable;

(v) the docket number;

(vi) the date on the citation or complaint, or the date of arrest, and, if available, the criminal justice agency that made the arrest;

(vii) the specific charges, as they appear on the charging document, to be expunged; and

(viii) a statement that all the charges resulted in a not guilty finding.

Additional information shall not be required by local rule or practice.

(b) Objections; Hearing.

(1) Within 60 days after service of the notice, the attorney for the Commonwealth shall file a consent or objection to the expungement or take no action. The attorney for the Commonwealth’s consent or objection shall be filed in the court of common pleas or the Philadelphia Municipal Court, whichever applies, and copies shall be served on the defendant and defense counsel, if any.

(2) Upon receipt of the attorney for the Commonwealth’s response, or no later than 14 days after the expiration of the 60-day period in subdivision (b)(1), the court of common pleas or the Philadelphia Municipal Court, whichever applies, shall grant the expungement or, when an objection is filed, shall schedule a hearing unless waived by the parties and the court.

(3) At the hearing, if any, the defendant and the attorney for the Commonwealth shall be afforded an opportunity to be heard. Following the hearing, the judge promptly shall enter an order granting or denying the expungement.

(4) If the judge grants the expungement, the judge shall enter an order directing expungement.

(i) The order shall contain the information required in subdivision (c).

(ii) Except when the attorney for the Commonwealth has filed a consent pursuant to subdivision (b)(1), the order shall be stayed for 30 days pending an appeal. If a timely notice of appeal is filed, the expungement order is stayed pending the disposition of the appeal and further order of court.

(5) If the judge denies the expungement, the judge shall enter an order denying the expungement and stating the reasons for the denial.

(6) The judge shall issue the order granting or denying the expungement in writing, with copies to the defendant, defense counsel, if any, and the attorney for the Commonwealth, and shall make the order a part of the docket.

(c) Order.

(1) Every order for expungement shall include:

(i) the defendant’s name and any aliases that the defendant has used, address, date of birth, and social security number;

(ii) the name and address of the issuing authority who heard the case;

(iii) the name and mailing address of the affiant as shown on the complaint or citation, if available;

(iv) the magisterial district court number, if applicable;

(v) the docket number;

(vi) the date on the citation or complaint, or the date of arrest, and, if available, the criminal justice agency that made the arrest;

(vii) the specific charges, as they appear on the charging document, to be expunged;

(viii) a statement that all the charges resulted in a not guilty finding; and

(ix) the criminal justice agencies upon which certified copies of the order shall be served.

Additional information shall not be required by local rule or practice.

(2) The clerk of courts shall serve a certified copy of the order to each criminal justice agency identified in the court’s order and to all other entities required to be notified by statute.

This rule was adopted in 2023 to provide procedures for the expungement of summary cases that resulted in acquittals as provided in 18 Pa.C.S. § 9122(a)(4).

For the ability of the parties, with the consent of the court, to waive a hearing pursuant to subdivision (b)(2), see 18 Pa.C.S. § 9122(a)(4)(iii).

See also Rule 320 (Procedure for Expungement Upon Successful Completion of ARD Program); Rule 490 (Procedure for Obtaining Expungement in Summary Cases; Expungement Order); Rule 790 (Procedure for Obtaining Expungement in Court Cases; Expungement Order); Rule 791 (Procedure for Obtaining Order for Limited Access in Court Cases; Order for Limited Access); 35 P.S. § 780-119 for expungement procedures under the Controlled Substance, Drug, Device, and Cosmetic Act; and for expungement procedures in court cases satisfying the requirements of 18 Pa.C.S. § 9122(a)(4) regarding complete acquittals, see Rule 790.2 (Procedure for Expungement of Acquittals in Court Cases; Expungement Order).

The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

History

• Source: The provisions of this Rule 490.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

Chapter 5 PRETRIAL PROCEDURES IN COURT CASES

234 Pa. Code Rule 500 Preservation of Testimony After Institution of Criminal Proceedings. {#sec-rule-500 omnilex-key=us-pa-regs-official--title-234--Rule 500}

(A) BY COURT ORDER.

(1) At any time after the institution of a criminal proceedings, upon motion of any party, and after notice and hearing, the court may order the taking and preserving of the testimony of any witness who may be unavailable for trial or for any other proceeding, or when due to exceptional circumstances, it is in the interests of justice that the witness’ testimony be preserved.

(2) The court shall state on the record the grounds on which the order is based.

(3) The court’s order shall specify the time and place for the taking of the testimony, the manner in which the testimony shall be recorded and preserved, and the procedures for custody of the recorded testimony.

(4) The testimony shall be taken in the presence of the court, the attorney for the Commonwealth, the defendant(s), and defense counsel, unless otherwise ordered.

(5) The preserved testimony shall not be filed of record until it is offered into evidence at trial or other judicial proceeding.

(B) BY AGREEMENT OF THE PARTIES.

(1) At any time after the institution of a criminal proceeding, the testimony of any witness may be taken and preserved upon the express written agreement of the attorney for the Commonwealth, the defendant(s), and defense counsel.

(2) The agreement shall specify the time and place for taking the testimony, the manner in which the testimony shall be recorded and preserved, and the procedures for custody of the recorded testimony.

(3) The testimony shall be taken in the presence of the attorney for the Commonwealth, the defendant(s), and defense counsel, unless they otherwise agree.

(4) The agreement shall be filed of record.

(5) The preserved testimony shall not be filed of record until it is offered into evidence at trial or other judicial proceeding.

This rule is intended to provide the means by which testimony may be preserved for use at a subsequent stage in the criminal proceedings. When testimony is to be preserved by videotape recording, see also Rule 501.

This rule does not address the admissibility of the preserved testimony. All questions of admissibility must be decided by the court. See, e.g., Judicial Code § 5917, 42 Pa.C.S. § 5917 (1982); Commonwealth v. Scarborough, 421 A.2d 147 (Pa. 1980); Commonwealth v. Stasko, 370 A.2d 350 (Pa. 1977).

‘‘May be unavailable,’’ as used in paragraph (A), is intended to include situations in which the court has reason to believe that the witness will be unable to be present or to testify at trial or other proceedings, such as when the witness is dying, or will be out of the jurisdiction and therefore cannot be effectively served with a subpoena, or is elderly, frail, or demonstrates the symptoms of mental infirmity or dementia, or may become incompetent to testify for any other legally sufficient reason.

Under paragraph (A)(4), a judge should preside over the taking of testimony. The court, however, may order that testimony be taken and preserved without a judge’s presence when exigent circumstances exist or the location of the witness renders a judge’s presence impracticable. Furthermore, nothing in this rule is intended to preclude counsel, the defendant(s), and the judge from agreeing on the record that the judge need not be present. Paragraph (B)(3) permits the attorney for the Commonwealth, the defendant(s), and defense counsel to determine among themselves whether a judge should be present during the taking of testimony. That determination should be made a part of the written agreement required by paragraph (B)(1).

Nothing is this rule is intended to preclude the defendant from waiving his or her presence during the taking of testimony.

The means by which the testimony is recorded and preserved are within the discretion of the court under paragraph (A) and the parties under paragraph (B), and may include the use of electronic or photographic techniques such as videotape. There are, however, additional procedural requirements for preservation of testimony by videotape recording mandated by Rule 501.

The party on whose motion testimony is taken should normally have custody of and be responsible for safeguarding the preserved testimony. That party should also promptly provide a copy of the preserved testimony to any other party upon payment of reasonable costs.

When testimony is taken under this rule, the proceeding should be adversarial, and afford the parties full opportunity to examine and cross-examine the witness. Counsel should not reserve objections for time of trial.

Paragraphs (A)(5) and (B)(5) are intended to guard against pretrial disclosure of potentially prejudicial matters.

For definition of ‘‘court,’’ see Rule 103.

Official Note

Rule 9015 adopted November 8, 1982, effective January 1, 1983; amended March 22, 1989, effective July 1, 1989; renumbered Rule 500 and amended March 1, 2000, effective April 1, 2001; Comment revised August 31, 2016, effective October 1, 2016.

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. 1478 (March 18, 2000).

Final Report explaining the August 31, 2016 Comment revision refining the definition of ‘‘unavailable’’ to include the elderly published with the Court’s Order at 46 Pa.B. 5893 (September 17, 2016).

The provisions of this Rule 500 amended August 31, 2016, effective October 1, 2016, 46 Pa.B. 5893. Immediately preceding text appears at serial pages (371044), (363635) and (318623).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 501 Preservation of Testimony by Videotape Recording. {#sec-rule-501 omnilex-key=us-pa-regs-official--title-234--Rule 501}

(A) When the testimony of a witness is taken and preserved pursuant to Rule 500 by means of videotape recording, the testimony shall be recorded simultaneously by a stenographer.

(B) The following technical requirements shall be made part of the court order required by Rule 500(A) or the written agreement provided in Rule 500(B):

(1) The videotape recording shall begin with a statement on camera that includes:

(a) the operator’s name and business address;

(b) the name and address of the operator’s employer;

(c) the date, time, and place of the videotape recording;

(d) the caption of the case;

(e) the name of the witness;

(f) the party on whose behalf the witness is testifying; and

(g) the nature of the judicial proceedings for which the testimony is intended.

(2) The court and all parties shall identify themselves on camera.

(3) The witness shall be sworn on camera.

(4) If the length of the testimony requires the use of more than one videotape, the end of each videotape and the beginning of each succeeding videotape shall be announced on camera.

(5) At the conclusion of the witness’ testimony, a statement shall be made on camera that the testimony is concluded. A statement shall also be made concerning the custody of the videotape(s).

(6) Statements concerning stipulations, exhibits, or other pertinent matters may be made at any time on camera.

(7) The videotape recording shall be timed by a digital clock on camera that continually shows the hour, minute, and second of the testimony.

(8) All objections and the reasons for them shall be made on the record. When a judge presides over the videotaping of testimony, the judge’s rulings on objections shall also be made on the record.

(9) When a judge does not preside over the videotaping of testimony, the videotape operator shall keep a log of each objection, referenced to the time each objection is made. All rulings on objections shall be made before the videotape is shown at any judicial proceeding.

(10) The original videotape recording shall not be altered.

This rule provides the basic technical requirements for taking and preserving testimony by videotape recording under Rule 500. The list of requirements is not intended to be exhaustive. Rather, it is recommended that all recording by videotape be carefully planned and executed, and that in addition to complying with the basic requirement, each court order or written agreement for the videotape recording of testimony be tailored to the nature of the case and the needs of the parties.

Generally, the camera should focus on the witness to the extent practicable.

Under paragraph (B)(9), the court may rule on objections by either reviewing pertinent sections of the videotape recording, aided by the videotape operator’s log, or by reviewing the stenographic transcript required by paragraph (A).

Any editing procedure ordered by the court or agreed upon by the parties may be used as long as it comports with current technology and does not alter the original videotape recording. Paragraph (B)(10) is intended to insure preservation of the original videotape, thereby providing for those situations in which a dispute arises over editing procedures.

This rule authorizes the use of videotape recording devices only for the preservation of testimony under Rule 500. It is not intended to affect other rules governing recording devices. See, e.g., Rules 112 and 500.

Official Note

Rule 9015A adopted March 22, 1989, effective July 1, 1989; renumbered Rule 501 and amended March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 502 Instituting Proceedings in Court Cases. {#sec-rule-502 omnilex-key=us-pa-regs-official--title-234--Rule 502}

Criminal proceedings in court cases shall be instituted by:

(1) filing a written complaint; or

(2) an arrest without a warrant:

(a) when the offense is a murder, felony, or misdemeanor committed in the presence of the police officer making the arrest; or

(b) upon probable cause when the offense is a felony or murder; or

(c) upon probable cause when the offense is a misdemeanor not committed in the presence of the police officer making the arrest, when such arrest without a warrant is specifically authorized by statute.

Criminal proceedings in court cases are instituted by 1) the filing of a complaint, followed by the issuance of a summons or arrest warrant; or by 2) a warrantless arrest, followed by the filing of a complaint. For the definition of ‘‘court case,’’ see Rule 103.

If the defendant is held for court, the attorney for the Commonwealth submits an information to the court (see Rule 560). See Section 8931(d) of the Judicial Code, 42 Pa.C.S. § 8931(d).

There are only a few exceptions to this rule regarding the instituting of criminal proceedings in court cases. There are, for example, special proceedings involving a coroner or medical examiner. See Commonwealth v. Lopinson, 234 A.2d 552 (Pa. 1967), vacated on other grounds sub nom. Lopinson v. Penn., 392 U.S. 647 (1968), and Commonwealth v. Smouse, 594 A.2d 666 (Pa. Super. 1991).

See Rules 556.11 and 556.13 for the procedures for the filing of a complaint following the issuance of an indictment.

Whenever a misdemeanor, felony, or murder is charged, even if the summary offense is also charged in the same complaint, the case should proceed as a court case under Chapter 5. See Commonwealth v. Caufman, 662 A.2d 1050 (Pa. 1995), and Commonwealth v. Campana, 304 A.2d 432 (Pa. 1973), vacated and remanded, 414 U.S. 808 (1973), on remand, 314 A.2d 854 (Pa. 1974). In judicial districts in which there is a traffic court established pursuant to 42 Pa.C.S. § § 1301—1342, when a summary motor vehicle offense within the jurisdiction of the traffic court arises in the same criminal episode as another summary offense or a misdemeanor, felony, or murder offense, see 42 Pa.C.S. § 1302 and Commonwealth v. Masterson, 418 A.2d 664 (Pa. Super. 1980).

Paragraph (2)(c) is intended to acknowledge those specific instances wherein the General Assembly has provided by statute for arrest without a warrant for a misdemeanor not committed in the presence of the arresting officer. It in no way attempts to modify the law of arrest where no specific statutory provision applies.

For institution of criminal proceedings in summary cases, see Rule 400.

Official Note

Original Rule 102(1), (2), and (3), adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 102 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 101, and made applicable to court cases only, September 18, 1973, effective January 1, 1974; Comment revised February 15, 1974, effective immediately; amended June 30, 1975, effective September 1, 1975; Comment amended January 4, 1979, effective January 9, 1979; paragraph (1) amended October 22, 1981, effective January 1, 1982; Comment revised July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; Comment revised January 31, 1991, effective July 1, 1991; Comment revised August 12, 1993, effective September 1, 1993; amended August 9, 1994, effective January 1, 1995; Comment revised January 16, 1996, effective immediately; renumbered Rule 502 and amended March 1, 2000, effective April 1, 2001; amended March 9, 2006, effective September 1, 2006; Comment revised September 21, 2012, effective November 1, 2012; Comment revised November 27, 2018, effective March 1, 2019.

Committee Explanatory Reports:

Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).

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

Report explaining the August 9, 1994 amendments published at 22 Pa.B. 6 (January 4, 1993); Final Report published with the Court’s Order at 24 Pa.B. 4342 (August 27, 1994).

Report explaining the January 16, 1996 Comment revisions published with the Court’s Order at 26 Pa.B. 437 (February 3, 1996).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 9, 2006 changes to paragraphs (2)(a) and (b) and the first and third paragraphs of the Comment published with the Court’s Order at 36 Pa.B. 1392 (March 25, 2006).

Final Report explaining the September 21, 2012 revising the second paragraph of the Comment to correct a typographical error published with the Court’s Order at 42 Pa.B. 6251 (October 6, 2012).

Final Report explaining the November 27, 2018 revision to the Comment regarding complaint procedures subsequent to indictment published with the Court’s Order at 48 Pa.B. 7632 (December 15, 2018).

The provisions of the Rule 502 amended March 9, 2006, effective September 1, 2006, 36 Pa.B. 1385; amended September 21, 2012, effective November 1, 2012, 42 Pa.B. 6247; amended November 27, 2018, effective March 1, 2019, 48 Pa.B. 7626. Immediately preceding text appears at serial pages (383591) to (383593).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 503 Complaint Procedures Generally. {#sec-rule-503 omnilex-key=us-pa-regs-official--title-234--Rule 503}

In every court case a complaint shall be filed with the appropriate issuing authority.

Except in those cases where a warrantless arrest is made pursuant to Rules 502 and 518, the filing of a complaint institutes proceedings in a court case, followed by the issuance of a summons or arrest warrant. When a defendant is arrested without a warrant, it is the arrest itself which institutes proceedings, followed by the filing of a complaint.

For the filing of a complaint in summary cases, see Chapter 4, Part C, Procedures in Summary Cases When Complaint is Filed. See also Rule 504(6)(b) concerning the contents of a complaint in summary cases.

Official Note

Rule 103 adopted August 9, 1994, effective January 1, 1995; renumbered Rule 503 and Comment revised March 1, 2000, effective April 1, 2001.

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 March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 504 Contents of Complaint. {#sec-rule-504 omnilex-key=us-pa-regs-official--title-234--Rule 504}

Every complaint shall contain:

(1) the name of the affiant;

(2) the name and address of the defendant, or if unknown, a description of the defendant as nearly as may be;

(3) a direct accusation to the best of the affiant’s knowledge, or information and belief, that the defendant violated the penal laws of the Commonwealth of Pennsylvania;

(4) the date when the offense is alleged to have been committed; provided, however:

(a) if the specific date is unknown, or if the offense is a continuing one, it shall be sufficient to state that it was committed on or about any date within the period of limitations; and

(b) if the date or day of the week is an essential element of the offense charged, such date or day must be specifically set forth;

(5) the place where the offense is alleged to have been committed;

(6) (a) in a court case, a summary of the facts sufficient to advise the defendant of the nature of the offense charged, but neither the evidence nor the statute allegedly violated need be cited in the complaint. However, a citation of the statute allegedly violated, by itself, shall not be sufficient for compliance with this subsection; or

(b) in a summary case, a citation of the specific section and subsection of the statute or ordinance allegedly violated, together with a summary of the facts sufficient to advise the defendant of the nature of the offense charged;

(7) a statement that the acts of the defendant were against the peace and dignity of the Commonwealth of Pennsylvania or in violation of an ordinance of a political subdivision;

(8) a notation if criminal laboratory services are requested in the case;

(9) a notation that the defendant has or has not been fingerprinted;

(10) a request for the issuance of a warrant of arrest or a summons, unless an arrest has already been effected;

(11) a verification by the affiant that the facts set forth in the complaint are true and correct to the affiant’s personal knowledge, or information and belief, and that any false statements therein are made subject to the penalties of the Crimes Code, 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities;

(12) a certification that the complaint complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania regarding confidential information and documents; and

(13) the signature of the affiant and the date of the execution of the complaint.

This rule sets forth the required contents of all complaints whether the affiant is a law enforcement officer, a police officer, or a private citizen. When the affiant is a private citizen, the complaint must be submitted to an attorney for the Commonwealth for approval. See Rule 506. When the district attorney elects to proceed under Rule 507 (Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth—Local Option), the police officer must likewise submit the complaint for approval by an attorney for the Commonwealth.

Ordinarily, whenever a misdemeanor, felony, or murder is charged, any summary offense in such a case, if known at the time, should be charged in the same complaint, and the case should proceed as a court case under Chapter 5 Part B. See Commonwealth v. Caufman, 662 A.2d 1050 (Pa. 1995) and Commonwealth v. Campana, 304 A.2d 432 (Pa. 1973), vacated and remanded, 414 U.S. 808 (1973), on remand, 314 A.2d 854 (Pa. 1974) (compulsory joinder rule). In judicial districts in which there is a traffic court established pursuant to 42 Pa.C.S. § § 1301—1342, when a summary motor vehicle offense within the jurisdiction of the traffic court arises in the same criminal episode as another summary offense or a misdemeanor, felony, or murder offense, see 42 Pa.C.S. § 1302 and Commonwealth v. Masterson, 418 A.2d 664 (Pa. Super. 1980).

Paragraph (8) requires the affiant who prepares the complaint to indicate on the complaint whether criminal laboratory services are requested in the case. This information is necessary to alert the magisterial district judge, the district attorney, and the court that the defendant in the case may be liable for a criminal laboratory user fee. See 42 Pa.C.S. § 1725.3 that requires a defendant to be sentenced to pay a criminal laboratory user fee in certain specified cases when laboratory services are required to prosecute the case.

The requirement that the affiant who prepares the complaint indicate whether the defendant has been fingerprinted as required by the Criminal History Record Information Act, 18 Pa.C.S. § 9112, is included so that the issuing authority knows whether it is necessary to issue a fingerprint order with the summons as required by Rule 510.

See Rule 113.1 regarding the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania and the requirements regarding filings and documents that contain confidential information.

Official Note

Original Rule 104 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 104 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 132 September 18, 1973, effective January 1, 1974; amended October 22, 1981, effective January 1, 1982; amended November 9, 1984, effective January 2, 1985; amended July 25, 1994, effective January 1, 1995; renumbered Rule 104 and Comment revised August 9, 1994, effective January 1, 1995; renumbered Rule 504 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised March 9, 2006, effective September 1, 2006; amended July 10, 2008, effective February 1, 2009; amended June 1, 2018, effective July 1, 2018.

Committee Explanatory Reports:

Report explaining the July 25, 1994 amendment published with Court’s Order at 24 Pa.B. 4068 (August 13, 1994).

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).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 9, 2006 Comment revision published with the Court’s Order at 36 Pa.B. 1392 (March 25, 2006).

Final Report explaining the July 10, 2008 amendments adding new paragraph (9) requiring a notation concerning fingerprinting published with the Court’s Order at 38 Pa.B. 3975 (July 26, 2008).

Amendment regarding the Court’s public access policy published with the Court’s Order at 48 Pa.B. 3575 (June 16, 2018).

The provisions of this Rule 504 amended March 9, 2006, effective September 1, 2006, 36 Pa.B. 1385; amended July 10, 2008, effective February 1, 2009, 38 Pa.B. 3971; amended June 1, 2018, effective July 1, 2018, 48 Pa.B. 3575. Immediately preceding text appears at serial pages (335933) to (335934).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 505 Complaints: Joinder of Offenses and Defendants. {#sec-rule-505 omnilex-key=us-pa-regs-official--title-234--Rule 505}

(A) When more than one person is alleged to have participated in the commission of an offense, the issuing authority shall accept a complaint for each person charged. Each complaint shall contain the names of all persons alleged to have participated in the commission of the offense and shall contain a reference to the docket number of the complaints issued for the other alleged participants. Such complaints may be consolidated for hearing or such further action as may be required, and where complaints are consolidated, additional costs shall not be taxed as a result of the acceptance of separate complaints.

(B) When more than one offense is alleged to have been committed by one person arising from the same incident, the issuing authority shall accept only one complaint, and shall docket the matter as a single case.

(C) Upon application by any interested person and proof that any provision of paragraphs (A) or (B) was violated, a judge may order forfeiture of all additional costs of the issuing authority accrued by reason of such violation, and thereafter such costs shall not be taxed in the case.

For criteria as to cases in which joinder is required prior to trial, see Commonwealth v. Campana, 304 A.2d 432 (Pa. 1973).

Official Note

Original Rule 103, adopted June 30, 1964, effective January 1, 1965, suspended January 31, 1970, effective May 1, 1970. New Rule 103 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 131 and amended September 18, 1973, effective January 1, 1974; renumbered Rule 105 and amended August 9, 1994, effective January 1, 1995; renumbered Rule 505 and amended March 1, 2000, effective April 1, 2001.

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).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 506 Approval of Private Complaints. {#sec-rule-506 omnilex-key=us-pa-regs-official--title-234--Rule 506}

(A) When the affiant is not a law enforcement officer, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove it without unreasonable delay.

(B) If the attorney for the Commonwealth:

(1) approves the complaint, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority;

(2) disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter, the affiant may petition the court of common pleas for review of the decision.

For the contents of a private complaint, see Rule 504.

In all cases where the affiant is not a law enforcement officer, the complaint must be submitted for approval or disapproval by the attorney for the Commonwealth.

The district attorney may ‘‘transmit’’ the complaint to the issuing authority pursuant to paragraph (B)(1) by returning it to the affiant for delivery.

Official Note

Original Rule 105 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 105 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 133 and amended September 18, 1973, effective January 1, 1974; amended January 23, 1975, effective September 1, 1975; amended October 22, 1981, effective January 1, 1982; rescinded November 9, 1984, effective January 2, 1985. Present Rule 133 adopted November 9, 1984, effective January 2, 1985; renumbered Rule 106 and amended August 9, 1994, effective January 1, 1995; amended March 22, 1996, effective July 1, 1996; renumbered Rule 506 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the August 9, 1994 amendments published with the Court’s Order at 24 Pa.B. 4342 (August 27, 1994).

Final Report explaining the March 22, 1996 amendments published with the Court’s Order at 26 Pa.B. 1690 (April 13, 1996).

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).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 507 Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth—Local Option. {#sec-rule-507 omnilex-key=us-pa-regs-official--title-234--Rule 507}

(A) The district attorney of any county may require that criminal complaints, arrest warrant affidavits, or both filed in the county by police officers, as defined in these rules, have the approval of an attorney for the Commonwealth prior to filing.

(B) If the district attorney elects to proceed under paragraph (A), the district attorney shall file a certification with the court of common pleas, which certification shall state whether prior approval of police complaints, or arrest warrant affidavits, or both shall be required, shall specify which offenses or grades of offenses shall require such prior approval, and shall also specify the date such procedure is to become effective. The court of common pleas shall thereupon promulgate a local rule in the following form, setting forth the offenses or grades of offenses specified in the certification and stating whether prior approval of police complaints, arrest warrant affidavits, or both shall be required:

RULE . APPROVAL OF POLICE (COMPLAINTS)(ARREST WARRANT AFFIDAVITS)(COMPLAINTS AND ARREST WARRANT AFFIDAVITS)BY ATTORNEY FOR THE COMMONWEALTH.

The District Attorney of County having filed a certification pursuant to Pa.R.Crim.P. 507, (criminal complaints) (arrest warrant affidavits) (criminal complaints and arrest warrant affidavits) by police officers, as defined in the Rules of Criminal Procedure, charging

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 508 Procedure Following Submission of Complaint to Issuing Authority. {#sec-rule-508 omnilex-key=us-pa-regs-official--title-234--Rule 508}

(A) Before accepting a complaint for filing, the issuing authority shall ascertain and certify on the complaint that:

(1) the complaint has been properly completed and executed; and

(2) when prior submission to an attorney for the Commonwealth is required, an attorney has approved the complaint.

(B) Upon certification of the above matters, the issuing authority shall accept the complaint for filing, and the case shall proceed as otherwise provided in these rules.

This rule was amended in 1994 to clarify the procedures that the issuing authority must follow before a complaint may be filed. For the rules governing the issuance of process after a complaint is filed, see generally Rule 509 (Use of Summons or Warrant of Arrest in Court Cases) and Rule 518 (Procedure in Court Cases Initiated by Arrest Without Warrant).

See Rule 513 concerning the procedures for the issuance of an arrest warrant.

While the rule continues to require a written certification, the form of certification was deleted in 1985 because it is no longer necessary to control the specific form of written certification.

For the requirement that probable cause for the issuance of an arrest warrant be contained in an affidavit, see Rule 513.

Under paragraph (A)(2), the method by which the district attorney approves and transmits a private complaint pursuant to Rule 506(B)(1) may be determined by local practice.

Private complaints must first be submitted to the district attorney for approval or disapproval under Rule 506. For private complaint procedures in summary cases, see Rule 421.

Paragraph (A)(2) also applies when a district attorney elects to proceed under Rule 507 (Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth—Local Option).

Official Note

Original Rule 106 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 106 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 134 and amended September 18, 1973, effective January 1, 1974; amended January 23, 1975, effective September 1, 1975; amended April 26, 1979, effective July 1, 1979; Comment revised April 24, 1981, effective July 1, 1981; amended October 22, 1981, effective January 1, 1982; amended November 9, 1984, effective January 2, 1985; renumbered Rule 108 and amended August 9, 1994, effective January 1, 1995; Comment revised March 22, 1996, effective July 1, 1996; renumbered Rule 508 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the August 9, 1994 amendments published with the Court’s Order at 24 Pa.B. 4342 (August 27, 1994).

Final Report explaining the March 22, 1996 Comment revision published at 26 Pa.B. 1690 (April 13, 1996).

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).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 509 Use of Summons or Warrant of Arrest in Court Cases. {#sec-rule-509 omnilex-key=us-pa-regs-official--title-234--Rule 509}

If a complaint charges an offense that is a court case, the issuing authority with whom it is filed shall:

(1) issue a summons and not a warrant of arrest in cases in which the most serious offense charged is a misdemeanor of the second degree or a misdemeanor of the first degree in cases arising under 75 Pa.C.S. § 3802, except as set forth in paragraph (2);

(2) issue a warrant of arrest when:

(a) one or more of the offenses charged is a felony or murder; or

(b) the issuing authority has reasonable grounds for believing that the defendant will not obey a summons; or

(c) the issuing authority has reasonable grounds for believing that the defendant poses a threat of physical harm to any other person or to himself or herself; or

(d) the summons was mailed pursuant to Rule 511(A) and has been returned undelivered; or

(e) the identity of the defendant is unknown; or

(3) issue a summons or a warrant of arrest, within the issuing authority’s discretion, when the offense charged does not fall within any of the categories specified in paragraphs (1) or (2).

This rule provides for the mandatory use of a summons instead of a warrant in court cases except in the special circumstances enumerated in paragraphs (2) and (3).

Before a warrant may be issued pursuant to paragraph (2)(d) when a summons is returned undelivered, the summons must have been served upon the defendant by both first class mail and certified mail, return receipt requested as provided in Rule 511(A), and both the certified mail and the first class mail must have been returned undelivered. ‘‘Undelivered’’ includes a return receipt that is signed by someone other than the defendant.

Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service’s return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

Pursuant to Rule 511, a return receipt signed by the defendant or a notation on the transcript that the first class mailing was not returned within 20 days is proof that the defendant received notice of the summons for purposes of paragraph (2)(d). See also Rule 543(D)(1).

When a defendant has been released pursuant to Rule 519(B), the issuing authority must issue a summons.

See Rule 1003 (Procedure in Non-Summary Municipal Court Cases), paragraph (C), for the procedures for issuing a summons and a warrant in Philadelphia.

It is expected when a case meets the requirements for the issuance of a summons, the police officer will proceed during the normal business hours of the proper issuing authority except in extraordinary circumstances. See Rule 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail).

The procedure in paragraph (3) allows the issuing authority to exercise discretion in whether to issue a summons or an arrest warrant depending on the circumstances of the particular case. Appropriate factors for issuing a summons rather than an arrest warrant will, of course, vary. Among the factors that may be taken into consideration are the severity of the offense, the continued danger to the victim, the relationship between the defendant and the victim, the known prior criminal history of the defendant, etc. However, in all cases in which the defendant has been released pursuant to Rule 519(B), a summons shall be issued.

Official Note

Original Rule 108 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 108 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 102 and amended September 18, 1973, effective January 1, 1974; amended December 14, 1979, effective April 1, 1980; Comment revised April 24, 1981, effective July 1, 1981; amended October 22, 1981, effective January 1, 1982; renumbered Rule 109 and amended August 9, 1994, effective January 1, 1995; renumbered Rule 509 and amended March 1, 2000, effective April 1, 2001; Comment revised August 24, 2004, effective August 1, 2005; amended June 30, 2005, effective August 1, 2006; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; Comment revised September 18, 2008, effective February 1, 2009.

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).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the August 24, 2004 Comment revision adding a new second paragraph elaborating on paragraph (2)(c) published with the Court’s Order at 34 Pa.B. 5025 (September 11, 2004).

Final Report explaining the June 30, 2005 amendments concerning in which cases a summons or a warrant are issued published with the Court’s Order at 35 Pa.B. 3911 (July 16, 2005).

Final Report explaining the May 1, 2007 amendments amending paragraph (2)(d) and the Comment and deleting paragraph (2)(e) published with the Court’s Order at 37 Pa.B. 2503 (June 2, 2007).

Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service’s return receipt electronic option published with the Court’s Order at 38 Pa.B. 5488 (October 4, 2008).

The provisions of this Rule 509 amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended June 30, 2005, effective August 1, 2006, 35 Pa.B. 3901; amended May 1, 2007, effective September 4, 2007, 37 Pa.B. 2496; amended September 18, 2008, effective February 1, 2009, 38 Pa.B. 5425. Immediately preceeding text appears at serial pages (328068) and (335935).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 510 Contents of Summons; Notice of Preliminary Hearing. {#sec-rule-510 omnilex-key=us-pa-regs-official--title-234--Rule 510}

(A) Every summons in a court case shall command the defendant to appear before the issuing authority for a preliminary hearing at the place and on the date and at the time stated on the summons. The date set for the preliminary hearing shall be not less than 20 days from the date of mailing the summons unless the issuing authority fixes an earlier date upon the request of the defendant or the defendant’s attorney with the consent of the affiant.

(B) The summons shall give notice to the defendant:

(1) of the right to secure counsel of the defendant’s choice and, for those who are without financial resources, of the right to assigned counsel in accordance with Rule 122;

(2) that bail will be set at the preliminary hearing;

(3) that if the defendant fails to appear on the date, and at the time and place specified on the summons, the case will proceed in the defendant’s absence, and a bench warrant will be issued for the defendant’s arrest; and

(4) if the case is held for court and if the defendant fails to appear without cause at any proceeding for which the defendant’s presence is required, including the trial, that the defendant’s absence may be deemed a waiver of the right to be present, and the proceeding, including the trial, may be conducted in the defendant’s absence.

(C) The following items shall be attached to the summons:

(1) a copy of the complaint; and

(2) an order directing the defendant to submit to fingerprinting in all cases in which the defendant has not been fingerprinted, except cases initiated by private complaint.

For the summons procedures in non-summary cases in the Municipal Court of Philadelphia, see Rule 1003(C).

When a case proceeds by summons, the issuing authority also must issue an order requiring the defendant to submit to the administrative processing and identification procedures as authorized by law (such as fingerprinting) that ordinarily occur following an arrest.

Paragraph (B)(4) requires that the defendant be advised of the consequences of failing to appear for any court proceeding. See Rule 602 concerning a defendant’s failure to appear for trial; see also Commonwealth v. Bond, 693 A.2d 220, 223 (Pa. Super. 1997) (‘‘[A] defendant who is unaware of the charges against him, unaware of the establishment of his trial date or is absent involuntarily is not absent ‘without cause.’’’).

Paragraph (C)(2), added in 2008, requires that the fingerprint order be sent to the defendant with the summons. The purpose of this change is to ensure that the fingerprinting process in summons cases is completed. See the Criminal History Record Information Act, 18 Pa.C.S. § 9112.

The requirement in paragraph (C)(2) that a fingerprint order be attached to the summons does not apply to cases that have been initiated by private complaint or cases in which the defendant has been processed for fingerprinting and other identification procedures prior to being released pursuant to Rule 519.

If a defendant has not complied with the fingerprint order by the time of the preliminary hearing, the issuing authority must make compliance a condition of release on bail.

See Rule 511 for service of the summons and proof of service.

See Rule 543(D) for the procedures when a defendant fails to appear for the preliminary hearing.

For the consequences of defects in a summons in a court case, see Rule 109.

Official Note

Original Rule 109 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 109 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 110 and amended September 18, 1973, effective January 1, 1974; amended October 22, 1981, effective January 1, 1982; amended November 9, 1984, effective January 2, 1985; amended August 9, 1994, effective January 1, 1995; renumbered Rule 510 and amended March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; amended July 10, 2008, effective February 1, 2009; amended May 2, 2013, effective June 1, 2013.

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).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the August 24, 2004 amendments concerning notice that case will proceed in defendant’s absence published with the Court’s Order at 34 Pa.B. 5025 (September 11, 2004).

Final Report explaining the May 1, 2007 amendments to paragraph (B)(3) published with the Court’s Order at 37 Pa.B. 2503 (June 2, 2007).

Final Report explaining the July 10, 2008 amendments to paragraph (C) concerning the fingerprint order published with the Court’s Order at 38 Pa.B. 3975 (July 26, 2008).

Final Report explaining the May 2, 2013 amendments concerning notice of consequences of failing to appear published the Court’s Order at 43 Pa.B. 2710 (May 18, 2013).

The provisions of this Rule 510 amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended May 1, 2007, effective September 4, 2007, 37 Pa.B. 2496; amended July 10, 2008, effective February 1, 2009, 38 Pa.B. 3971; amended May 2, 2013, effective June 1, 2013, 43 Pa.B. 2704. Immediately preceeding text appears at serial pages (338903) to (338905).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 511 Service of Summons; Proof of Service. {#sec-rule-511 omnilex-key=us-pa-regs-official--title-234--Rule 511}

(A) The summons shall be served upon the defendant by both first class mail and certified mail, return receipt requested. A copy of the complaint shall be served with the summons.

(B) Proof of service of the summons by mail shall include:

(1) a return receipt signed by the defendant; or

(2) the returned summons showing that the certified mail was not signed by the defendant and a notation on the transcript that the first class mailing of the summons was not returned to the issuing authority within 20 days after the mailing.

This rule was amended in 2004 to require that the summons be served by both first class mail and certified mail, return receipt requested.

Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service’s return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

Paragraph (B) sets forth what constitutes proof of service of the summons by mail in a court case for purposes of these rules.

Official Note

Original Rule 111, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 111 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 112 September 18, 1973, effective January 1, 1974; renumbered Rule 511 March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; Comment revised September 18, 2008, effective February 1, 2009.

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. 1478 (March 18, 2000).

Final Report explaining the August 24, 2004 amendments adding new paragraph (B) concerning proof of service published with the Court’s Order at 34 Pa.B. 5025 (September 11, 2004).

Final Report explaining the May 1, 2007 amendments amending paragraph (B)(2) concerning proof of service published with the Court’s Order at 37 Pa.B. 2503 (June 2, 2007).

Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service’s return receipt electronic option published with the Court’s Order at 38 Pa.B. 5428 (October 4, 2008).

The provisions of this Rule 511 amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended May 1, 2007, effective September 4, 2007, 37 Pa.B. 2496; amended September 18, 2008, effective February 1, 2009, 38 Pa.B. 5425. Immediately preceeding text appears at serial page (335937).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 512 Procedure in Court Cases Following Issuance of Summons. {#sec-rule-512 omnilex-key=us-pa-regs-official--title-234--Rule 512}

The defendant shall appear before the issuing authority for a preliminary hearing on the date, and at the time and place specified in the summons. If the defendant fails to appear, the issuing authority shall proceed as provided in Rule 543(D).

For the proper time for the preliminary hearing, see Rule 510.

When a case proceeds by summons, the issuing authority must require that the defendant submit to the administrative processing and identification procedures as authorized by law (such as fingerprinting) that ordinarily occur following an arrest. See, e.g., Criminal History Record Information Act, 18 Pa.C.S. § 9112. If these processing procedures ar not completed by the time of the preliminary hearing, they must be made a condition of bail or release. Concerning fingerprinting, see Rule 510(C)(2) that requires the issuing authority to send the fingerprint order with the summons.

For the procedures in non-summary cases in the Municipal Court, see Chapter 10.

Official Note

Rule 113 adopted September 18, 1973, effective January 1, 1974; amended August 9, 1994, effective January 1, 1995; renumbered Rule 512 and Comment revised March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; Comment revised July 10, 2008, effective February 1, 2009.

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).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the August 24, 2004 amendments cross-referencing Rule 543(D) published with the Court’s Order at 34 Pa.B. 5025 (September 11, 2004).

Final Report explaining the May 1, 2007 amendments deleting the warrant language published with the Court’s Order at 37 Pa.B. 2503 (June 2, 2007).

Final Report explaining the July 10, 2008 Comment revisions concerning administrative processing and identification procedures published with the Court’s Order at 38 Pa.B. 3975 (July 26, 2008).

The provisions of this Rule 512 amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended May 1, 2007, effective September 4, 2007, 37 Pa.B. 2496; amended July 10, 2008, effective February 1, 2009, 38 Pa.B. 3971. Immediately preceeding text appears at serial pages (328363) to (328364).

(a) Arrest Warrants

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 513 Requirements for Issuance; Dissemination of Arrest Warrant Information. {#sec-rule-513 omnilex-key=us-pa-regs-official--title-234--Rule 513}

(A) For purposes of this rule, ‘‘arrest warrant information’’ is defined as the criminal complaint in cases in which an arrest warrant is issued, the arrest warrant, any affidavit(s) of probable cause, and documents or information related to the case.

(B) ISSUANCE OF ARREST WARRANT

(1) In the discretion of the issuing authority, advanced communication technology may be used to submit a complaint and affidavit(s) for an arrest warrant and to issue an arrest warrant.

(2) No arrest warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority in person or using advanced communication technology. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.

(3) Immediately prior to submitting a complaint and affidavit to an issuing authority using advanced communication technology, the affiant must personally communicate with the issuing authority in person, by telephone, or by any device which allows for simultaneous audio-visual communication. During the communication, the issuing authority shall verify the identity of the affiant, and orally administer an oath to the affiant. In any telephonic communication, if the issuing authority has a concern regarding the identity of the affiant, the issuing authority may require the affiant to communicate by a device allowing for two-way simultaneous audio-visual communication or may require the affiant to appear in person.

(4) At any hearing on a motion challenging an arrest warrant, no evidence shall be admissible to establish probable cause for the arrest warrant other than the affidavits provided for in paragraph (B)(2).

(C) DELAY IN DISSEMINATION OF ARREST WARRANT INFORMATION

The affiant or the attorney for the Commonwealth may request that the availability of the arrest warrant information for inspection and dissemination be delayed. The arrest warrant affidavit shall include the facts and circumstances that are alleged to establish good cause for delay in inspection and dissemination.

(1) Upon a finding of good cause, the issuing authority shall grant the request and order that the availability of the arrest warrant information for inspection and dissemination be delayed for a period of 72 hours or until receipt of notice by the issuing authority that the warrant has been executed, whichever occurs first. The 72-hour period of delay may be preceded by an initial delay period of not more than 24 hours, when additional time is required to complete the administrative processing of the arrest warrant information before the arrest warrant is issued. The issuing authority shall complete the administrative processing of the arrest warrant information prior to the expiration of the initial 24-hour period.

(2) Upon the issuance of the warrant, the 72-hour period of delay provided in paragraph (C)(1) begins.

(3) In those counties in which the attorney for the Commonwealth requires that complaints and arrest warrant affidavits be approved prior to filing as provided in Rule 507, only the attorney for the Commonwealth may request a delay in the inspection and dissemination of the arrest warrant information.

This rule was amended in 2013 to add provisions concerning the delay in inspection and dissemination of arrest warrant information. Paragraph (A) provides a definition of the term ‘‘arrest warrant information’’ that is used throughout the rule. Paragraph (B) retains the existing requirements for the issuance of arrest warrants. Paragraph (C) establishes the procedures for a temporary delay in the inspection and dissemination of arrest warrant information prior to the execution of the warrant.

ISSUANCE OF ARREST WARRANTS

Paragraph (B)(1) recognizes that an issuing authority either may issue an arrest warrant using advanced communication technology or order that the law enforcement officer appear in person to apply for an arrest warrant.

This rule does not preclude oral testimony before the issuing authority, but it requires that such testimony be reduced to an affidavit prior to issuance of a warrant. All affidavits in support of an application for an arrest warrant must be sworn to before the issuing authority prior to the issuance of the warrant. The language ‘‘sworn to before the issuing authority’’ contemplates, when advanced communication technology is used, that the affiant would not be in the physical presence of the issuing authority. See paragraph (B)(3).

All affidavits and applications filed pursuant to this rule are public records. However, in addition to restrictions placed by law and rule on the disclosure of confidential information, the filings required by this rule are subject to the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania and may require further precautions, such as placing certain types of information in a ‘‘Confidential Information Form’’. See Rule 113.1.

This rule carries over to the arrest warrant the requirement that the evidence presented to the issuing authority be reduced to writing and sworn to, and that only the writing is subsequently admissible to establish that there was probable cause. In these respects, the procedure is similar to that applicable to search warrants. See Rule 203. For a discussion of the requirement of probable cause for the issuance of an arrest warrant, see Commonwealth v. Flowers, 369 A.2d 362 (Pa. Super. 1976).

The affidavit requirements of this rule are not intended to apply when an arrest warrant is to be issued for noncompliance with a citation, with a summons, or with a court order.

An affiant seeking the issuance of an arrest warrant, when permitted by the issuing authority, may use advanced communication technology as defined in Rule 103.

When advanced communication technology is used, the issuing authority is required by this rule to (1) determine that the evidence contained in the affidavit(s) establishes probable cause, and (2) verify the identity of the affiant.

Verification methods include, but are not limited to, a ‘‘call back’’ system, in which the issuing authority would call the law enforcement agency or police department that the affiant indicates is the entity seeking the warrant; a ‘‘signature comparison’’ system whereby the issuing authority would keep a list of the signatures of the law enforcement officers whose departments have advanced communication technology systems in place, and compare the signature on the transmitted information with the signature on the list; or an established password system.

Under Rule 540, the defendant receives a copy of the warrant and supporting affidavit at the time of the preliminary arraignment.

See Rule 556.11 for the procedures for the issuance of an arrest warrant by the supervising judge of an indicting grand jury following indictment of an individual not previously arrested.

DELAY IN DISSEMINATION OF ARREST WARRANT INFORMATION

Paragraph (C) was added in 2013 to address the potential dangers to law enforcement and the general public and the risk of flight when arrest warrant information is disseminated prior to the execution of the arrest warrant. The paragraph provides that the affiant or the attorney for the Commonwealth may request, for good cause shown, the delay in the inspection and dissemination of the arrest warrant information for 72 hours or until receipt of notice by the issuing authority that the warrant has been executed, whichever occurs first. Upon a finding of good cause, the issuing authority must delay the inspection and dissemination.

The request for delay in inspection and dissemination is intended to provide a very limited delay in public access to arrest warrant information in those cases in which there is concern that pre-execution disclosure of the existence of the arrest warrant will endanger those serving the warrant or will impel the subject of the warrant to flee. This request is intended to be an expedited procedure with the request submitted to an issuing authority.

A request for the delay in dissemination of arrest warrant information made in accordance with this rule is not subject to the requirements of Rule 576.

Once the issuing authority receives notice that the arrest warrant is executed, or when 72 hours have elapsed from the issuance of the warrant and the warrant has not been executed, whichever occurs first, the information must be available for inspection or dissemination unless the information is sealed pursuant to Rule 513.1.

The provision in paragraph (C)(2) that provides up to 24 hours in the delay of dissemination and inspection prior to the issuance of the arrest warrant recognizes that, in some cases, there may be administrative processing of the arrest warrant request that results in a delay between when the request for the 72-hour period of delay permitted in paragraph (C)(1) is approved and when the warrant is issued. In no case may this additional period of delay exceed 24 hours and the issuing authority must issue the arrest warrant within the 24-hour period.

When determining whether good cause exists to delay inspection and dissemination of the arrest warrant information, the issuing authority must consider whether the presumption of openness is rebutted by other interests that include, but are not limited to, whether revealing the information would allow or enable flight or resistance, the need to protect the safety of police officers executing the warrant, the necessity of preserving the integrity of ongoing criminal investigations, and the availability of reasonable alternative means to protect the interest threatened by disclosure.

Nothing in this rule is intended to limit the dissemination of arrest warrant information to court personnel as needed to perform their duties. Nothing in this rule is intended to limit the dissemination of arrest warrant information to or by law enforcement as needed to perform their duties.

Pursuant to paragraph (C)(3), in those counties in which the district attorney’s approval is required only for certain, specified offenses or grades of offenses, the approval of the district attorney is required for a request to delay inspection and dissemination only for cases involving those specified offenses.

The provisions of this Rule 513 amended May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended December 23, 2013, effective March 1, 2014, 44 Pa.B. 239; amended November 9, 2017, effective January 1, 2018, 47 Pa.B. 7177; amended June 1, 2018, effective July 1, 2018, 48 Pa.B. 3575; amended November 27, 2018, effective March 1, 2019, 48 Pa.B. 7626; amended December 1, 2021, effective January 1, 2022, 51 Pa.B. 7622. Immediately preceding text appears at serial pages (395157) to (395160).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 513.1 Sealing of Arrest Warrant. {#sec-rule-513.1 omnilex-key=us-pa-regs-official--title-234--Rule 513.1}

(A) For purposes of this rule, ‘‘arrest warrant information’’ is defined as the criminal complaint in cases in which an arrest warrant is issued, the arrest warrant, any affidavit(s) of probable cause, and documents or information related to the case.

(B) At the request of the attorney for the Commonwealth in the form of a motion, the arrest warrant information may be sealed upon good cause shown at the time the complaint is filed.

(C) Submission to Judge or Justice of Request for Sealed Arrest Warrant

When the attorney for the Commonwealth intends to request that the arrest warrant information be sealed, at the time the complaint is filed, the attorney for the Commonwealth shall present the arrest warrant information to a judge of the court of common pleas or an appellate court judge or justice. The arrest warrant affidavit(s) shall include the facts and circumstances that are alleged to establish good cause for the sealing of the arrest warrant information.

(1) When the judge or justice orders the arrest warrant information sealed, the order shall:

(a) certify that for good cause shown the arrest warrant information is sealed and state the date and time that the sealing of the arrest warrant information shall expire; and

(b) when requested by the attorney for the Commonwealth, specify that the arrest warrant information may be released by the attorney for the Commonwealth to the law enforcement agencies listed in the order.

(2) When a judge of the court of common pleas orders the arrest warrant information sealed, he or she shall accept the filing of the written complaint, which shall be marked as sealed, and shall issue the sealed arrest warrant. When a judge or justice of an appellate court orders the arrest warrant infor- mation sealed, he or she shall direct that the complaint be filed in the court of common pleas and the sealed arrest warrant shall be issued by a judge of the court of common pleas.

(3) When the judge or justice issues the sealed arrest warrant, the judge or justice also shall issue an order designating the proper issuing authority before whom the case shall proceed upon execution of the warrant.

(4) When the sealed arrest warrant is issued, the sealed arrest warrant information, the sealing order, and the order designating the proper issuing authority shall be filed with the clerk of courts in the judicial district in which the charges are being filed.

(5) Upon execution of the sealed arrest warrant, the affiant shall file a copy of the sealed arrest warrant information with the proper issuing authority along with copies of the order sealing the arrest warrant information and the order designating the proper issuing authority. Thereafter, the case will proceed before the proper issuing authority.

(D) The arrest warrant information shall be sealed for a period of not more than 60 days, unless the time period is extended as provided in paragraph (D)(1) or (D)(2).

(1) Upon motion of the attorney for the Commonwealth for good cause shown, the justice or judge who sealed the arrest warrant information may extend the period of time that the arrest warrant information will remain sealed. If the justice or judge is unavailable, another justice or judge shall be assigned to decide the motion.

(2) Upon motion for good cause shown, the justice or judge may grant an unlimited number of extensions of the time that the arrest warrant information shall remain sealed. Each extension shall be for a period of not more than 30 days.

(3) If the motion requesting any extension pursuant to paragraphs (D)(1) or (D)(2) is granted, the motion and any record of the hearing on the motion shall be sealed and transmitted with the extension order to the clerk of courts and a copy of the extension order shall be transmitted to the proper issuing authority.

(E) Upon motion of the attorney for the Commonwealth, the justice or judge shall order the arrest warrant information to be unsealed.

(F) Defendant’s Access to Sealed Arrest Warrant Information

(1) After the sealed arrest warrant is executed, a copy of the arrest warrant information shall be given to the defendant at the preliminary arraignment as provided in Rule 540, unless otherwise ordered as provided in paragraph (F)(2).

(2) Upon motion of the attorney for the Commonwealth, the justice or judge who issued the warrant, for good cause shown and after hearing, may delay giving the defendant a copy of the sealed arrest warrant information, in whole or in part, for periods of not more than 30 days. In no case shall the delay extend beyond the date of the preliminary hearing.

(3) If the justice or judge is unavailable, another justice or judge shall be assigned to decide the motion.

(G) Until the order sealing the arrest warrant information and any extensions thereof expires, the judge and clerk of courts shall not make the arrest warrant information available for public inspection and dissemination.

This rule was adopted in 2013 to codify and further define the practice of temporarily sealing arrest warrants previously recognized in case law such as Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987). Unlike existing case law, which only addresses the sealing of arrest warrants after execution, the procedures in this rule apply to all arrest warrants.

Magisterial district judges, arraignment court magistrates, and municipal court judges do not have authority to seal arrest warrant information; the request for the warrant to be sealed must be presented to a judge of the court of common pleas or a justice or judge of an appellate court.

As provided in paragraph (C)(2), when the request to seal an arrest warrant is presented to a judge of the court of common pleas, the complaint must be filed with common pleas judge who issues the sealing order. In those rare cases in which an appellate court judge or justice orders the arrest warrant information sealed, the complaint shall be filed with an appropriate common pleas judge and the common pleas judge shall issue the sealed arrest warrant. This latter provision is necessary due to the limited capability of the appellate courts to accept initial filings and issue arrest warrants.

A request to seal arrest warrant information made in accordance with this rule is not subject to the requirements of Rule 576.

The rule establishes a standard of ‘‘good cause’’ for sealing the arrest warrant information. When determining whether good cause exists to seal the arrest warrant information, the justice or judge must consider whether the presumption of openness is rebutted by other interests that include, but are not limited to, whether revealing the information would allow or enable flight or resistance, the need to protect the safety of police officers executing the warrant, the necessity of preserving the integrity of ongoing criminal investigations, and the availability of reasonable alternative means to protect the interest threatened by disclosure.

The rule assumes that access to a sealed arrest warrant will be severely limited. The rule assumes that this also will limit the availability of the arrest warrant information to a broad class of law enforcement agencies through the various law enforcement computer systems such as the Commonwealth Law Enforcement Assistance Network (CLEAN) and the National Crime Information Center system (NCIC). In many cases, the requester will desire that the information be placed into these systems in order to assist in the execution of the warrant. In these cases, the attorney for the Commonwealth may request that the sealing order provide that the sealed arrest warrant information be provided to law enforcement agencies generally and entry of the arrest warrant information into law enforcement computer systems be required.

Under paragraph (D), an order sealing the arrest warrant information is limited in duration to not more than 60 days. Extension of this period may be granted only upon the showing of good cause for the extension. Each extension of the order is limited to no more than 30 days duration.

The judge issuing the order to seal has the discretion to set the appropriate duration of the order and whether there are any conditions for unsealing the order. For example, a judge may order that the arrest warrant information must be unsealed 15 days from issuance or automatically upon execution of the warrant.

Paragraph (E) provides that the attorney for the Commonwealth may move to unseal the arrest warrant information and the judge or justice must order the information unsealed. Ordinarily, this will occur in circumstances in which law enforcement wishes to publicize the existence of a previously sealed warrant in order to obtain public assistance in the apprehension of the defendant. The judge or justice may not deny the motion.

Paragraph (F)(2) permits a judge or justice to order sealed arrest warrant information to be kept from the defendant even after the defendant is arrest. The judge or justice may order that either the whole or part of the arrest warrant information be kept from the defendant. This provision should only be used in extraordinary circumstances in which there is considerable risk to public safety or the safety of individual witnesses. In determining whether the information is to be kept from the defendant and what portion of the information is to be kept from the defendant, the judge or justice should be guided by the principle that the least restrictive means should be utilized that are consistent with the reason for the requested restriction. For example, if the grounds for requesting delay in providing this information to the defendant is that the affidavit of probable cause contains information regarding identity of an informant and must remain confidential until additional arrests in other ongoing investigations are made, the judge or justice may delay providing a copy of the affidavit of probable cause to the defendant while providing him or her with a copy of the complaint in order to provide the defendant with information regarding the charges.

When a sealed copy of the arrest warrant information has been given to the defendant, nothing in this rule is intended to preclude the attorney for the Commonwealth from requesting that the justice or judge issue a protective order to prevent or restrict the defendant from disclosing the arrest warrant or the contents of the affidavit. See Rule 573(F).

Until the order sealing the arrest warrant information terminates, the judge and the clerk of courts shall not make the arrest warrant information available for inspection and dissemination.

Official Note

New Rule 513.1 adopted December 23, 2013, effective March 1, 2014.

Committee Explanatory Reports:

Final Report explaining the December 23, 2013 adoption of new Rule 513.1 providing procedures for sealing of arrest warrant information published with the Court’s Order at 44 Pa.B. 243 (January 11, 2014).

The provisions of this Rule 513.1 adopted December 23, 2013, effective March 1, 2014, 44 Pa.B. 239.

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 514 Duplicate and Reissued Warrants of Arrest. {#sec-rule-514 omnilex-key=us-pa-regs-official--title-234--Rule 514}

(A) When a warrant of arrest has been issued and it appears necessary or desirable to issue duplicates thereof for execution, the issuing authority may issue any number of duplicates. Each duplicate shall have the same force and effect as the original. Costs may be taxed only for one such warrant and only one service fee shall be charged.

(B) After service and execution of an original or duplicate warrant, the issuing authority may reissue the warrant if the purpose for which the original or duplicate has been issued has not been accomplished.

This rule permits the use of advanced communication technology for the issuance of duplicate and reissued arrest warrants.

Under this rule, warrant information transmitted by using advanced communication technology has the same force and effect as a duplicate or reissued arrest warrant. This rule does not require that the transmitted warrant information be an exact copy of the original warrant for purposes of execution under Rule 515. Nothing in this rule, however, is intended to curtail the Rule 540(D) requirement that the issuing authority provide the defendant with an exact copy of the warrant at the preliminary arraignment. See Rule 513 (Requirements for Issuance).

This rule originally used the term ‘‘alias warrant’’ to describe the reissuance of a warrant that has been served and executed but has not accomplished its original purpose. The term ‘‘alias warrant’’ is archaic and its meaning obscure, leading to potential confusion. With the 2005 amendments, the terminology of the rule has been simplified by deleting ‘‘alias warrant’’ and replacing it with ‘‘reissue,’’ thereby retaining the underlying practice previously described by the term ‘‘alias warrant.’’

Official Note

Original Rule 113 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 113 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 121 September 18, 1973, effective January 1, 1974; amended August 9, 1994, effective January 1, 1995; renumbered Rule 514 and amended March 1, 2000, effective April 1, 2001; Comment revised May 10, 2002, effective September 1, 2002; amended October 19, 2005, effective February 1, 2006; Comment revised July 31, 2012, effective November 1, 2012.

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).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the May 10, 2002 Comment revision concerning advanced communication technology published with the Court’s Order at 32 Pa.B. 2591 (May 25, 2002).

Final Report explaining the October 19, 2005 amendments to paragraph (B) deleting ‘‘alias warrant’’ published with the Court’s Order at 35 Pa.B. 6090 (November 5, 2005).

Final Report explaining the July 31, 2012 revision of the Comment changing the citation to Rule 540(C) to Rule 540(D) published with the Court’s Order at 42 Pa.B. 5340 (August 18, 2012).

The provisions of this Rule 514 amended May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended October 19, 2005, effective February 1, 2006, 35 Pa.B. 6089; amended July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333. Immediately preceding text appears at serial pages (348275) to (348276).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 515 Execution of Arrest Warrant. {#sec-rule-515 omnilex-key=us-pa-regs-official--title-234--Rule 515}

(A) A warrant of arrest may be executed at any place within the Commonwealth.

(B) A warrant of arrest shall be executed by a police officer.

(C) When the warrant has been issued by a magisterial district judge, and the defendant cannot be found, the case shall remain in the magisterial district, and shall not be forwarded to the court of common pleas for further proceedings.

No substantive change in the law is intended by paragraph (A) of this rule; rather, it was adopted to carry on those provisions of the now repealed Criminal Procedure Act of 1860 that had extended the legal efficacy of an arrest warrant beyond the jurisdictional limits of the issuing authority. The Judicial Code now provides that the territorial scope of process shall be prescribed by the Supreme Court’s procedural rules. 42 Pa.C.S. § § 931(d), 1105(b), 1123(c), 1143(b), 1302(c), 1515(b).

For the definition of police officer, see Rule 103.

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).

Pursuant to Rule 540, the defendant is to receive a copy of the warrant and the supporting affidavit at the time of the preliminary arraignment.

For purposes of executing an arrest warrant under this rule, warrant information transmitted by using advanced communication technology has the same force and effect as an original arrest warrant. This rule does not require that the transmitted warrant information be an exact copy of the original warrant. Nothing in this rule, however, is intended to curtail the Rule 540(D) requirement that the issuing authority provide the defendant with an exact copy of the warrant. See Rule 513 (Requirements for Issuance).

Paragraph (C) abolishes the traditional practice known as ‘‘NEI’’ or ‘‘non est inventus’’ as being no longer necessary.

Official Note

Formerly Rule 124, adopted January 28, 1983, effective July 1, 1983; amended July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; renumbered Rule 122 and Comment revised August 9, 1994, effective January 1, 1995; renumbered Rule 515 and amended March 1, 2000, effective April 1, 2001; Comment revised May 10, 2002, effective September 1, 2002; amended February 12, 2010, effective April 1, 2010; Comment revised July 31, 2012, effective November 1, 2012; Comment revised September 21, 2012, effective immediately.

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).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the May 10, 2002 Comment revision concerning advanced communication technology published with the Court’s Order at 32 Pa.B. 2582 (May 25, 2002).

Final Report explaining the February 12, 2010 changes adding new paragraph (C) and the Comment revision published with the Court’s Order at 40 Pa.B. 1071 (February 27, 2010).

Final Report explaining the July 31, 2012 revision of the Comment changing the citation to Rule 540(c) to Rule 540(D) published with the Court’s Order at 42 Pa.B. 5340 (August 18, 2012).

Final Report explaining the September 21, 2012 revising the last paragraph of the Comment by correcting a typographical error published with the Court’s Order at 42 Pa.B. 6251 (October 6, 2012).

The provisions of this Rule 515 amended May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended February 12, 2010, effective April 1, 2010, 40 Pa.B. 1068; amended July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333; amended September 21, 2012, effective November 1, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (348276) to (348277).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 516 Procedure in Court Cases When Warrant of Arrest is Executed Within Judicial District of Issuance. {#sec-rule-516 omnilex-key=us-pa-regs-official--title-234--Rule 516}

(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 using advanced communication technology pursuant to Rule 540(A), the defendant shall be taken to an advanced communication technology site that, in the judgment of the arresting officer, is most convenient to the place of arrest without regard to the boundary of any magisterial district or judicial district.

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 132), 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 431 and 517. These amendments are not intended to affect the responsibility of the police and issuing authorities to insure prompt preliminary arraignments.

This rule is intended to permit the use of advanced communication technology (including two-way simultaneous audio-visual communication and closed circuit television) in preliminary arraignments. See Rule 540 and Comment for the procedures governing the use of advanced communication technology 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 of any magisterial district or judicial district.

See Rule 556.13 for procedures following execution of an arrest warrant issued after indictment pursuant to Rule 556.11(E).

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; renumbered Rule 516 and Comment revised March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; Comment revised November 27, 2018, effective March 1, 2019.

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).

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 May 10, 2002 amendments concerning advanced communication technology published with the Court’s Order at 32 Pa.B. 2591 (May 25, 2002).

Final Report explaining the November 27, 2018 revisions to the Comment regarding post-indictment arrest warrants published with the Court’s Order at 48 Pa.B. 7632 (December 15, 2018).

The provisions of this Rule 516 amended May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended November 27, 2018, effective March 1, 2019, 48 Pa.B. 7626. Immediately preceding text appears at serial pages (383595) to (383596).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 517 Procedure in Court Cases When Warrant of Arrest is Executed Outside Judicial District of Issuance. {#sec-rule-517 omnilex-key=us-pa-regs-official--title-234--Rule 517}

(A) 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) Such issuing authority shall advise the defendant of the right to post bail. If bail is posted, the defendant shall be admitted to bail, conditioned upon the defendant’s appearance for the preliminary arraignment before the proper issuing authority in the judicial district where the warrant was issued, at a date certain not less than 5 nor more than 10 days thereafter.

(C) When a defendant fails to post bail, the arresting person shall:

(1) return the defendant to the judicial district where the warrant was issued, without unnecessary delay, for preliminary arraignment by the proper issuing authority; or

(2) lodge the defendant in a suitable place of detention in the judicial district of arrest, and forthwith notify the proper issuing authority in the judicial district where the warrant was issued of the defendant’s detention, and the place of such detention. Upon receipt of this notice, the issuing authority shall, without unnecessary delay, cause the defendant to be brought to the judicial district where the warrant was issued for preliminary arraignment by the proper issuing authority.

(D) When a defendant has been held for 48 hours or more without preliminary arraignment, in a place of detention outside the judicial district where the warrant was issued, because of the inability to post bail, the defendant shall be discharged from custody upon application of any interested person to a judge of a court of the judicial district of detention; provided that, upon cause shown the judge may grant one or more extensions of the defendant’s detention to an early date, fixed in the order, but if the defendant remains in custody and has not been removed to the judicial district where the warrant was issued at the end of the extended detention period, the defendant shall be discharged from custody.

(E) When a defendant who has posted bail and been released from custody before preliminary arraignment thereafter fails to appear at the time fixed, the proper issuing authority in the judicial district where the warrant was issued shall forthwith cause the bail to be forfeited according to law, and issue a bench warrant. If the defendant is thereafter arrested outside the judicial district where the bench warrant was issued, the defendant shall not be entitled to post bail in the judicial district where arrested, but shall be taken as soon as practicable to the judicial district where the bench warrant was issued for preliminary arraignment by the proper issuing authority.

(F) When, upon application of any interested person, it is shown to the satisfaction of a judge of a court in the judicial district where the warrant of arrest was issued, that the defendant was returned to that judicial district without being given the opportunity to post bail, as provided in paragraphs (A) and (B), and that had such opportunity been given, the defendant would have been able to post such bail, the judge shall have the discretion to:

(1) discharge the defendant from custody; or

(2) release the defendant on bail, conditioned upon the defendant’s appearance at the preliminary hearing; and

(3) forfeit all costs, including mileage and transportation charges, of the arresting and transporting person, in order that such costs and charges shall not be taxed in the case.

(G) All recognizances accepted under this rule shall forthwith be transmitted to the proper issuing authority in the judicial district where the warrant was issued.

Nothing in this rule prevents a defendant from consenting to dispense with the procedures in paragraph (A) if the defendant is afforded a preliminary arraignment without unnecessary delay in the judicial district where the warrant was issued.

See Rule 518 for using advanced communication technology following execution of arrest warrant outside the judicial district of issuance.

For preliminary hearing procedures, see Rules 540 and 541.

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, 490 A.2d 421 (Pa. 1985).

Paragraph (E) originally used the term ‘‘alias warrant’’ to describe the type of warrant issued when a defendant is arrested outside the judicial district of issuance, is released on bond by a magisterial district judge in the judicial district of arrest conditioned on the defendant’s appearance at a preliminary arraignment in the judicial district of issuance, and then fails to appear. Because the term ‘‘alias warrant’’ is an archaic term that refers to the reissuance of a warrant when the original purpose of the warrant has not been achieved, and the warrant issued in paragraph (E) is issued for the failure to appear as contemplated by Rule 536(A)(1)(b), paragraph (E) was amended in 2005 by changing the terminology to ‘‘bench warrant.’’

For purposes of this rule, if a defendant is arrested pursuant to an arrest warrant issued following indictment pursuant to Rule 556.11(E), the issuing authority in the county of issuance is the supervising judge of the grand jury in that county or the president judge’s designee. See Rule 556.13.

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; renumbered Rule 517 and amended March 1, 2000, effective April 1, 2001; Comment revised May 10, 2002, effective September 1, 2002; amended October 19, 2005, effective February 1, 2006; Comment revised November 27, 2018, effective March 1, 2019.

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 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).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the May 10, 2002 Comment revision concerning advanced communication technology published with the Court’s Order at 32 Pa.B. 2591 (May 25, 2002).

Final Report explaining the October 19, 2005 amendments to paragraph (E) changing ‘‘alias warrant’’ to ‘‘bench warrant’’ published with the Court’s Order at 35 Pa.B. 6090 (November 5, 2005).

Final Report explaining the November 27, 2018 revisions to the Comment regarding post-indictment arrest warrants published with the Court’s Order at 48 Pa.B. 7632 (December 15, 2018).

The provisions of this Rule 517 amended May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended October 19, 2005, effective February 1, 2006, 35 Pa.B. 6089; amended November 27, 2018, effective March 1, 2019, 48 Pa.B. 7626. Immediately preceding text appears at serial pages (383596) to (383598).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 518 Using Advanced Communication Technology in Court Cases When Warrant of Arrest is Executed Outside Judicial District of Issuance. {#sec-rule-518 omnilex-key=us-pa-regs-official--title-234--Rule 518}

(A) 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 may be taken for a preliminary arraignment or the posting of bail to an advanced communication technology site that, in the judgment of the arresting officer, is most convenient to the place of arrest without regard to the boundary of any magisterial district or judicial district; and

(1) the defendant must be taken to the advanced communication technology site without unnecessary delay.

(2) The preliminary arraignment may be conducted pursuant to Rule 540 by the proper issuing authority in the magisterial district or judicial district in which the warrant was issued; or

(3) the defendant may post bail as permitted by law with the proper issuing authority in the judicial district in which the defendant was arrested.

(B) If a preliminary arraignment is conducted pursuant to paragraph (A)(2), and the defendant does not post bail, the issuing authority who conducted the preliminary arraignment shall commit the defendant to the jail in the judicial district in which the defendant was arrested or the judicial district in which the warrant was issued.

(1) The issuing authority may transmit to the jail any required documents by using advanced communication technology.

(2) When a monetary condition of bail is set by the issuing authority who conducted the preliminary arraignment, the payment of the monetary condition shall be made to either the issuing authority who imposed the monetary condition or the proper issuing authority in the judicial district in which the defendant was arrested.

(C) Pursuant to paragraph (A)(3), when the defendant appears via advanced communication technology before the proper issuing authority in the judicial district in which the defendant was arrested, the procedures set forth in Rule 517 shall be followed.

This rule sets forth the procedures for using advanced communication technology when a defendant is arrested with a warrant outside the judicial district in which it was issued: when advanced communication technology is available, the defendant could be preliminarily arraigned by the issuing authority who issued the warrant, or the ‘‘on-duty’’ issuing authority in that judicial district, or ‘‘appear’’ via advanced communication technology before the proper issuing authority for the purpose of posting bail.

See Rule 130 concerning venue.

See Rule 132 concerning the continuous availability and temporary assignment of issuing authorities.

When advanced communication technology is available only in the judicial district of arrest, the case would proceed under paragraph (A)(3), unless the defendant consents to dispense with the procedures in paragraph (A)(3), and the defendant is afforded a preliminary arraignment without unnecessary delay in the judicial district in which the warrant was issued.

See Rule 540 and Comment for the procedures governing the use in preliminary arraignments of two-way simultaneous audio-visual communication, which is a form of advanced communication technology.

This rule permits a defendant to be transported to an advanced communication technology site that is located outside the judicial district of arrest. The arresting officer should determine which site is the most convenient to the place of arrest without regard to the boundary of any magisterial district or judicial district.

For purposes of this rule, if a defendant is arrested pursuant to an arrest warrant issued following indictment pursuant to Rule 556.11(E), the issuing authority in the county of issuance is the supervising judge of the grand jury in that county or the president judge’s designee. See Rule 556.13.

Official Note

New Rule 518 adopted May 10, 2002, effective September 1, 2002; Comment revised November 27, 2018, effective March 1, 2019.

Committee Explanatory Reports:

Final Report explaining the May 10, 2002 adoption of new Rule 518 published with the Court’s Order at 32 Pa.B. 2591 (May 25, 2002).

Final Report explaining the November 27, 2018 revisions to the Comment regarding post-indictment arrest warrants published with the Court’s Order at 48 Pa.B. 7632 (December 15, 2018).

The provisions of this Rule 518 adopted May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended November 27, 2018, effective March 1, 2019, 48 Pa.B. 7626. Immediately preceding text appears at serial pages (383598) to (383600).

(b) Arrests Without Warrant

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 519 Procedure in Court Cases Initiated by Arrest Without Warrant. {#sec-rule-519 omnilex-key=us-pa-regs-official--title-234--Rule 519}

(A) PRELIMINARY ARRAIGNMENT

(1) Except as provided in paragraph (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 540(A), the defendant shall be taken to an advanced communication technology site that, in the judgment of the arresting officer, is most convenient to the place of arrest without regard to the boundary of any magisterial district or judicial district.

(B) RELEASE

(1) The arresting officer shall 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:

(a) the most serious offense charged is a misdemeanor of the second degree or a misdemeanor of the first degree in cases arising under 75 Pa.C.S. 3802;

(b) the defendant poses no threat of immediate physical harm to any other person or to himself or herself; and

(c) the arresting officer has reasonable grounds to believe that the defendant will appear as required.

(2) When a defendant is released pursuant to paragraph (B)(1), a complaint shall be filed against the defendant within 5 days of the defendant’s release. Thereafter, the issuing authority shall issue a summons, not a warrant of arrest, and shall proceed as provided in Rule 510.

See Rule 1003 (Procedure in Non-Summary Municipal Court Caes) for procedures in Philadelphia Municipal Court.

Paragraph (A) requires that the defendant receive a prompt preliminary arraignment. See Rule 540 (Preliminary Arraignment).

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

Paragraph (A) is intended to permit the use of advanced communication technology (including two-way simultaneous audio-visual communication equipment and closed circuit television) in preliminary arraignments. See Rule 540 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 of any magisterial district or judicial district.

Paragraph (B)(1) requires the arresting officer, in specified circumstances, to release a defendant rather than take the defendant before an issuing authority for preliminary arraignment. Prior to the 2005 amendments, the release provision in paragraph (B) was optional. With the 2005 amendments, release is mandatory if the three criteria are met, and this requirement may not be modified by local rule.

‘‘Reasonable grounds’’ as used in paragraph (B)(1)(c) would include such things as concerns about the validity of the defendant’s address, the defendant’s prior contacts with the criminal justice system, and the police officer’s personal knowledge of the defendant.

Pursuant to paragraph (B), the police will either promptly arrange for the defendant’s release or, if it is necessary to detain the defendant, proceed pursuant to paragraph (A). See Rule 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail).

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 procedures authorized by law.

With respect to ‘‘necessary’’ delay, see, e.g., Commonwealth v. Williams, 484 Pa. 590, 400 A.2d 1258 (1979).

By statute, a defendant may not be released but must be brought before the issuing authority for a preliminary arraignment when a police officer has arrested the defendant for failure to comply with the registration requirements for sexual offenders, see 18 Pa.C.S. § 4915.1(e)(2), or when a police officer has arrested the defendant in a domestic violence case, 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 (B)(2) relating to the issuance of a summons, see also Part B(2) of this Chapter, Summons Procedures.

For procedures in summary cases initiated by an arrest without warrant, see Rule 441.

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; renumbered Rule 518 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 519 and amended May 10, 2002, effective September 1, 2002; amended June 30, 2005, effective August 1, 2006; Comment revised July 1, 2013, effective August 1, 2013.

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. 4894 (October 12, 1996).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the May 10, 2002 renumbering and amendments concerning advanced communication technology published with the Court’s Order at 32 Pa.B. 2591 (May 25, 2002).

Final Report explaining the June 30, 2005 amendments concerning in which cases a defendant must be promptly released published with the Court’s Order at 35 Pa.B. 3911 (July 16, 2005).

Final Report explaining the July 1, 2013 revision of the Comment adding a cross-reference to 18 Pa.C.S. § 4915.1 published with the Court’s Order at 43 Pa.B. 4062 (July 20, 2013).

The provisions of this Rule 519 adopted May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended June 30, 2005, effective August 1, 2005, 35 Pa.B. 3901; amended July 1, 2013, effective August 1, 2013, 43 Pa.B. 4062. Immediately preceding text appears at serial pages (328366) to (328367).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 520 Bail Before Verdict. {#sec-rule-520 omnilex-key=us-pa-regs-official--title-234--Rule 520}

(A) Bail before verdict shall be set in all cases as permitted by law. Whenever bail is refused, the bail authority shall state in writing or on the record the reasons for that determination.

(B) A defendant may be admitted to bail on any day and at any time.

Article I, § 14 of the Pennsylvania Constitution was amended in 1998 to read: ‘‘All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great; and the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it.’’

For the minor judiciary’s authority to set bail, see the Judicial Code, 42 Pa.C.S. § § 1123(a)(5), 1143(a)(1), and 1515(a)(4).

See Pa.R.J.C.P. 396, which provides that, at the conclusion of a transfer hearing, the juvenile court judge is to determine bail pursuant to these bail rules for a juvenile whose case is ordered transferred to criminal proceedings.

See Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972), concerning the bail authority’s discretion to refuse bail under paragraph (A).

Under paragraph (A), whenever the bail authority is a judicial officer in a court not of record, that officer must set forth in writing his or her reasons for refusing bail, and the written reasons must be included with the docket transcript.

Rule 117(C) requires the president judge to ensure coverage is provided to satisfy the requirements of paragraph (B).

Official Note

Former Rule 4001 adopted July 23, 1973, effective 60 days hence, replacing prior Rule 4002; amended January 28, 1983, effective July 1, 1983; Comment revised September 23, 1985, effective January 1, 1986; rescinded September 13, 1995, effective January 1, 1996, and replaced by present Rule 4001. Present Rule 4001 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; Comment revised September 3, 1999, effective immediately; renumbered Rule 520 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised April 1, 2005, effective October 1, 2005; Comment revised June 30, 2005, effective August 1, 2006.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

Final Report explaining the September 3, 1999 Comment revision concerning the 1998 constitutional amendment providing for preventive detention published with the Court’s Order at 29 Pa.B. 4862 (September 18, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the April 1, 2005 Comment revision concerning Rules of Juvenile Court Procedure published with the Court’s Order at 35 Pa.B. 2213 (April 16, 2005).

Final Report explaining the June 30, 2005 revision of the Comment adding a cross-reference to Rule 117(C) published with the Court’s Order at 35 Pa.B. 3911 (July 16, 2005).

The provisions of this Rule 520 amended April 1, 2005, effective October 1, 2005, 35 Pa.B. 2210; amended June 30, 2005, effective August 1, 2006, 35 Pa.B. 3901. Immediately preceding text appears at serial pages (310540) to (310541).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 521 Bail After Finding of Guilt. {#sec-rule-521 omnilex-key=us-pa-regs-official--title-234--Rule 521}

(A) BEFORE SENTENCING

(1) Capital and Life Imprisonment Cases

When a defendant is found guilty of an offense which is punishable by death or life imprisonment, the defendant shall not be released on bail.

(2) Other Cases

(a) The defendant shall have the same right to bail after verdict and before the imposition of sentence as the defendant had before verdict when the aggregate of possible sentences to imprisonment on all outstanding verdicts against the defendant within the same judicial district cannot exceed 3 years.

(b) Except as provided in paragraph (A)(1), when the aggregate of possible sentences to imprisonment on all outstanding verdicts against the defendant within the same judicial district can exceed 3 years, the defendant shall have the same right to bail as before verdict unless the judge makes a finding:

(i) that no one or more conditions of bail will reasonably ensure that the defendant will appear and comply with the conditions of the bail bond;or

(ii) that the defendant poses a danger to any other person or to the community or to himself or herself.

The judge may revoke or refuse to set bail based upon such a finding.

(B) AFTER SENTENCING

(1) When the sentence imposed includes imprisonment of less than 2 years, the defendant shall have the same right to bail as before verdict, unless the judge, pursuant to paragraph (D), modifies the bail order.

(2) Except as provided in paragraph (A)(1), when the sentence imposed includes imprisonment of 2 years or more, the defendant shall not have the same right to bail as before verdict, but bail may be allowed in the discretion of the judge.

(3) When the defendant is released on bail after sentencing, the judge shall require as a condition of release that the defendant either file a post-sentence motion and perfect an appeal or, when no post-sentence motion is filed, perfect an appeal within the time permitted by law.

(C) REASONS FOR REFUSING OR REVOKING BAIL

Whenever bail is refused or revoked under this rule, the judge shall state on the record the reasons for this decision.

(D) MODIFICATION OF BAIL ORDER AFTER VERDICT OR AFTER SENTENCING

(1) When a defendant is eligible for release on bail after verdict or after sentencing pursuant to this rule, the existing bail order may be modified by a judge of the court of common pleas, upon the judge’s own motion or upon motion of counsel for either party with notice to opposing counsel, in open court on the record when all parties are present.

(2) The decision whether to change the type of release on bail or what conditions of release to impose shall be based on the judge’s evaluation of the information about the defendant as it relates to the release criteria set forth in Rule 523. The judge shall also consider whether there is an increased likelihood of the defendant’s fleeing the jurisdiction or whether the defendant is a danger to any other person or to the community or to himself or herself.

(3) The judge may change the type of release on bail, impose additional nonmonetary conditions as provided in Rule 527, or, if appropriate, impose or increase a monetary condition as provided in Rule 528.

(E) MUNICIPAL COURT

Bail after a finding of guilt in the Municipal Court of Philadelphia shall be governed by the rules set forth in Chapter 10.

For post-sentence procedures generally, see Rules 704 and 720. For additional procedures in cases in which a sentence of death or life imprisonment has been imposed, see Rules 810 and 811.

For purposes of this rule, ‘‘verdict’’ includes a plea of guilty or nolo contendere which is accepted by the judge.

Whenever the trial judge sets bail after sentencing pending appeal, paragraph (B)(3) requires that a condition of release be that the defendant perfect a timely appeal. However, the trial judge cannot, as part of that condition, require that the defendant perfect the appeal in less time than that allowed by law.

Unless bail is revoked, the bail bond is valid until full and final disposition of the case. See Rule 534. The Rule 534 Comment points out that the bail bond is valid through all avenues of direct appeal in the Pennsylvania courts, but not through any collateral attack.

Official Note

Former Rule 4009, previously Rule 4011, adopted November 22, 1965, effective June 1, 1966; renumbered Rule 4009 and title amended July 23, 1973, effective 60 days hence; rescinded September 13, 1995, effective January 1, 1996, and replaced by Rule 532. Present Rule 4009 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 521 and amended March 1, 2000, effective April 1, 2001; Comment revised June 4, effective November 1, 2004.

Committee Explanatory Reports:

Final Report explaining the March 22, 1993 amendments to former Rule 4010B(3), included in new Rule 521(B)(3), published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).

Final Report explaining the provisions of the new rule published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

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).

The provisions of this Rule 521 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105. Immediately preceeding text appears at serial pages (264241) to (264243).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 522 Detention of Witnesses. {#sec-rule-522 omnilex-key=us-pa-regs-official--title-234--Rule 522}

(A) After an accused has been arrested for any offense, upon application of the attorney for the Commonwealth or defense counsel, and subject to the provisions of this chapter, a court may set bail for any material witness named in the application. The application shall be supported by an affidavit setting forth adequate cause for the court to conclude that the witness will fail to appear when required if not held in custody or released on bail. Upon receipt of the application, the court may issue process to bring any named witnesses before it for the purpose of demanding bail.

(B) If the material witness is unable to satisfy the conditions of the bail bond after having been given immediate and reasonable opportunity to do so, the court shall commit the witness to jail, provided that at any time thereafter and prior to the term of court for which the witness is being held, the court shall release the witness when the witness satisfies the conditions of the bail bond.

(C) Upon application, a court may release a witness from custody with or without bond, or grant other appropriate relief.

(D) If process has been issued pursuant to paragraph (A) for a material witness who is under the age of 18 years, the procedures provided in Rule 151 shall apply.

This rule does not permit a witness to be detained prior to the arrest of the defendant, since an arrest might never take place and the witness could be held indefinitely.

‘‘Conditions of the bail bond’’ as used in this rule include the conditions set forth in Rule 526(A) and the conditions of release defined in Rules 524, 527, and 528.

Pursuant to paragraph (C), a witness may be released on his or her own recognizance conditioned upon the witness’ written agreement to appear as required. See Rule 524.

This rule does not affect the compensation and expenses of witnesses under the Judicial Code, 42 Pa.C.S. § 5903, or the provisions of the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings. See 42 Pa.C.S. § § 5963(c) and 5964(b) relating to bail.

In cases in which bail is set for a material witness pursuant to this rule, the court should consider all the types of release permitted in Rule 524 and the conditions of nonmonetary release upon bail available under Rule 527. When a material witness is to be detained, the court should impose the least restrictive means of assuring that witness’ presence, including the use of release on the witness’ own recognizance or release upon other nonmonetary conditions, such as electronic monitoring, especially when the witness has limited financial means to post monetary bail.

Official Note

Former Rule 4017, previously Rule 4014, adopted November 22, 1965, effective June 1, 1966; renumbered Rule 4017 July 23, 1973, effective 60 days hence; Comment revised January 28, 1983, effective July 1, 1983; rescinded September 13, 1995, effective January 1, 1996, and replaced by present Rule 522. Present Rule 4017 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; renumbered Rule 522 and amended March 1, 2000, effective April 1, 2001; Comment revised April 28, 2006, effective August 1, 2006; amended December 7, 2018, effective April 1, 2019.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

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 April 28, 2006 revision to the Comment concerning electronic monitoring published with the Court’s Order at 36 Pa.B. 2279 (May 13, 2006).

Final Report explaining the December 7, 2018 amendments concerning material witnesses under the age of 18 years published with the Court’s Order at 48 Pa.B. 7749 (December 22, 2018).

The provisions of this Rule 522 amended April 28, 2006, effective August 1, 2006, 36 Pa.B. 2279; amended December 7, 2018, effective April 1, 2019, 48 Pa.B. 7746. Immediately preceding text appears at serial pages (382197) to (382198).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 523 Release Criteria. {#sec-rule-523 omnilex-key=us-pa-regs-official--title-234--Rule 523}

(A) To determine whether to release a defendant, and what conditions, if any, to impose, the bail authority shall consider all available information as that information is relevant to the defendant’s appearance or nonappearance at subsequent proceedings, or compliance or noncompliance with the conditions of the bail bond, including information about:

(1) the nature of the offense charged and any mitigating or aggravating factors that may bear upon the likelihood of conviction and possible penalty;

(2) the defendant’s employment status and history, and financial condition;

(3) the nature of the defendant’s family relationships;

(4) the length and nature of the defendant’s residence in the community, and any past residences;

(5) the defendant’s age, character, reputation, mental condition, and whether addicted to alcohol or drugs;

(6) if the defendant has previously been released on bail, whether he or she appeared as required and complied with the conditions of the bail bond;

(7) whether the defendant has any record of flight to avoid arrest or prosecution, or of escape or attempted escape;

(8) the defendant’s prior criminal record;

(9) any use of false identification; and

(10) any other factors relevant to whether the defendant will appear as required and comply with the conditions of the bail bond.

(B) The decision of a defendant not to admit culpability or not to assist in an investigation shall not be a reason to impose additional or more restrictive conditions of bail on the defendant.

This rule clarifies present practice, and does not substantively alter the criteria utilized by the bail authority to determine the type of release on bail or the conditions of release reasonably necessary, in the bail authority’s discretion, to ensure the defendant’s appearance at subsequent proceedings and compliance with the conditions of the bail bond.

When deciding whether to release a defendant on bail and what conditions of release to impose, the bail authority must consider all the criteria provided in this rule, rather than considering, for example, only the designation of the offense or the fact that the defendant is a nonresident. Nothing in this rule prohibits the use of a pretrial risk assessment tool as one of the means of evaluating the factors to be considered under paragraph (A). However, a risk assessment tool must not be the only means of reaching the bail determination.

In addition to the release criteria set forth in this rule, in domestic violence cases under Section 2711 of the Crimes Code, 18 Pa.C.S. § 2711, the bail authority must also consider whether the defendant poses a threat of danger to the victim.

When a defendant who has been released on bail and is awaiting trial is arrested on a second or subsequent charge, the bail authority may consider that factor in conjunction with other release criteria in setting bail for the new charge.

Official Note

Previous Rule 4002, formerly Rule 4003, adopted November 22, 1965, effective June 1, 1966; renumbered Rule 4002 and amended July 23, 1973, effective 60 days hence; Comment revised January 28, 1983, effective July 1, 1983; rescinded September 13, 1995, effective January 1, 1996, and not replaced. Present Rule 4002 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; amended September 3, 1999, effective immediately; renumbered Rule 523 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised June 15, 2016, effective October 1, 2016.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

Final Report explaining the September 3, 1999 amendment concerning the 1998 constitutional amendment providing for preventive detention and deleting ‘‘but only’’ published with the Court’s Order at 29 Pa.B. 4862 (September 18, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the June 15, 2016 Comment revisions regarding the use of risk assessment tools published with the Court’s Order at 46 Pa.B. 3414 (July 2, 2016).

The provisions of this Rule 523 amended June 15, 2016, effective October 1, 2016, 46 Pa.B. 3414. Immediately preceding text appears at serial pages (319014) and (264245).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 524 Types of Release on Bail. {#sec-rule-524 omnilex-key=us-pa-regs-official--title-234--Rule 524}

(A) If bail is set pursuant to Rule 520, the defendant shall be eligible for the following types of release on bail. The bail authority, after considering the release criteria in Rule 523, shall determine the type or combination of types of release on bail reasonably necessary, in the bail authority’s discretion, to ensure that the defendant will appear at all subsequent proceedings and comply with the conditions of the bail bond.

(B) All of the types of release in paragraph (C) shall be conditioned upon the defendant’s written agreement to appear and to comply with the conditions of the bail bond set forth in Rule 526(A).

(C) The types of release on bail are:

(1) Release On Recognizance (ROR): Release conditioned only upon the defendant’s written agreement to appear when required and to comply with the conditions of the bail bond in Rule 526(A).

(2) Release on Nonmonetary Conditions: Release conditioned upon the defendant’s agreement to comply with any nonmonetary conditions, as set forth in Rule 527, which the bail authority determines are reasonably necessary to ensure the defendant’s appearance and compliance with the conditions of the bail bond.

(3) Release on Unsecured Bail Bond: Release conditioned upon the defendant’s written agreement to be liable for a fixed sum of money if he or she fails to appear as required or fails to comply with the conditions of the bail bond. No money or other form of security is deposited.

(4) Release on Nominal Bail: Release conditioned upon the defendant’s depositing a nominal amount of cash which the bail authority determines is sufficient security for the defendant’s release, such as $1.00, and the agreement of a designated person, organization, or bail agency to act as surety for the defendant.

(5) Release on a Monetary Condition: Release conditioned upon the defendant’s compliance with a monetary condition imposed pursuant to Rule 528. The amount of the monetary condition shall not be greater than is necessary to reasonably ensure the defendant’s appearance and compliance with the conditions of the bail bond.

The decision as to what type or combination of types of release on bail is appropriate for an individual defendant is within the discretion of the bail authority, using the criteria set forth in Rule 523.

Consistent with existing practice, the bail authority must initially determine whether the defendant is likely to appear at subsequent proceedings and comply with the conditions of the bail bond set forth in Rule 526(A) if released on ROR.

The bail rules prior to the 1995 reorganization required a defendant to be released on ROR when the most serious offense charged was punishable by a maximum sentence of imprisonment of not more than 3 years, the defendant was a resident of the Commonwealth, the defendant posed no threat of immediate physical harm to himself or herself or others, and the bail authority had reasonable grounds to believe that the defendant would appear as required. Cases that fall within similar parameters under the new rules adopted in 1995 should continue to be treated in the same manner.

If the bail authority determines that ROR will not reasonably ensure the defendant’s appearance and compliance with the conditions of the bail bond, see Rule 526(A), the bail authority should consider which other type or combination of types of release on bail, as provided in paragraphs (C)(2)—(5) of this rule, will be sufficient to reasonably ensure the defendant’s appearance and compliance, taking into consideration facts specific to the individual defendant, such as the need to abstain from the use of alcohol or drugs.

Nominal bail may be used as an alternative to releasing a defendant on his or her own recognizance when it is desirable to have a surety. It should be used when the bail authority believes the defendant is a sufficiently good bail risk so as not to require the imposition of nonmonetary conditions of release or a monetary condition in a significant amount, but is not sufficiently reliable for ROR. The purpose of the surety is to facilitate interstate apprehension of any defendant who absconds by allowing the nominal surety the right to arrest the defendant without the necessity of extradition proceedings. See Frisbie v. Collins, 342 U.S. 519 (1952). A bail agency may be the nominal bail surety, as well as private individuals or acceptable organizations. In all cases, the surety on nominal bail incurs no financial liability.

Nonmonetary conditions may be used in conjunction with a monetary condition.

No condition of release, whether nonmonetary or monetary, should ever be imposed for the sole purpose of ensuring that a defendant remains incarcerated until trial. See Standard 10-5.3, ABA Standards for Criminal Justice, Chapter 10, Pretrial Release. However, bail may be initially denied, or subsequently modified or revoked, if the bail authority determines such action is necessary to ensure the defendant’s appearance and compliance.

Official Note

Previous Rule 4003, formerly Rule 4007, adopted November 22, 1965, effective June 1, 1966; amended March 18, 1972, effective immediately; renumbered Rule 4003 and paragraph (c) added July 23, 1973, effective 60 days hence; Comment revised January 28, 1983, effective July 1, 1983; rescinded September 13, 1995, effective January 1, 1996, and replaced in part by present Rule 524. Present Rule 4003 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 524 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

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).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 525 Bail Bond. {#sec-rule-525 omnilex-key=us-pa-regs-official--title-234--Rule 525}

(A) A bail bond is a document whereby the defendant agrees that while at liberty after being released on bail, he or she will appear at all subsequent proceedings as required and comply with all the conditions of the bail bond.

(B) At the time the bail is set, the bail authority shall

(1) have the bail bond prepared; and

(2) sign the bail bond verifying the conditions the bail authority imposed.

(C) If the defendant is unable to post bail at the time bail is set, when the bail authority commits the defendant to jail, he or she shall send the prepared and verified bail bond and the other necessary paperwork with the defendant to the place of incarcertation.

(D) When the defendant is going to be released, the defendant, and, when applicable, one or more sureties, shall sign the bail bond. The official who releases the defendant also shall sign the bail bond witnessing the defendant’s signature.

(E) The bail bond shall set forth the type or combination of types of release, the conditions of release ordered by the bail authority, the conditions of the bail bond set forth in Rule 526(A), and the consequences of failing to appear or failing to comply with all the conditions of the bail bond.

(F) The defendant shall not be released until he or she signs the bail bond.

(G) After the defendant signs the bail bond, a copy of the bail bond shall be given to the defendant, and the original shall be included in the record.

For the types of release and the conditions of release, see Rule 524.

Paragraph (G) requires the court official who accepts a deposit of bail and has the defendant sign the bail bond to include the original of the bail bond in the record of the case. See Rule 535(A) for the other contents of the record in the context of the bail deposit.

For some of the consequences when a defendant fails to appear or fails to comply as required, see the Crimes Code, 18 Pa.C.S. § 5124. See also Rule 536.

The form of the bail bond was deleted from the bail rules in 1985 with the expectation that the Court Administrator of Pennsylvania will continue to design and publish such forms pursuant to Rule 104.

Official Note

Former Rule 4004 adopted July 23, 1973, effective 60 days hence, replacing prior Rule 4005; rescinded September 13, 1995, effective January 1, 1996, and replaced by Rule 523. Present Rule 4004 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 525 and amended March 1, 2000, effective April 1, 2001; amended June 30, 2005, effective August 1, 2006.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the June 30, 2005 changes clarifying the bail authority’s responsibility concerning the preparation of the bail bond published with the Court’s Order at 35 Pa.B. 3911 (July 16, 2005).

The provisions of this Rule 525 amended June 30, 2005, effective August 1, 2006, 35 Pa.B. 3901. Immediately preceding text appears at serial pages (264247) to (264248).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 526 Conditions of Bail Bond. {#sec-rule-526 omnilex-key=us-pa-regs-official--title-234--Rule 526}

(A) In every case in which a defendant is released on bail, the conditions of the bail bond shall be that the defendant will:

(1) appear at all times required until full and final disposition of the case;

(2) obey all further orders of the bail authority;

(3) give written notice to the bail authority, the clerk of courts, the district attorney, and the court bail agency or other designated court bail officer, of any change of address within 48 hours of the date of the change;

(4) neither do, nor cause to be done, nor permit to be done on his or her behalf, any act proscribed by Section 4952 of the Crimes Code (relating to intimidation of witnesses or victims) or by Section 4953 (relating to retaliation against witnesses or victims), 18 Pa.C.S. § § 4952, 4953; and

(5) refrain from criminal activity.

(B) If the bail authority determines that it is necessary to impose conditions of release in addition to the conditions required in paragraph (A) to ensure the defendant’s appearance and compliance, the bail authority may impose such conditions as provided in Rules 524, 527, and 528.

(C) The bail authority shall set forth in the bail bond all conditions of release imposed pursuant to this rule.

This rule continues the practice that all defendants released on bail under these rules are subject to an order of the bail authority that they comply with all the conditions of the bail bond. Paragraph (A)(4) effectuates the Crimes Code requirement set forth in 18 Pa.C.S. § 4956.

All the conditions of the bail bond set forth in paragraph (A) must be imposed in every criminal case in which a defendant is released on bail. In addition to these conditions of the bail bond, in the appropriate case, the bail authority may also impose a condition of release on bail or a combination of conditions of release on bail as provided in Rules 524, 527, and 528. See also Section 2711 of the Crimes Code, 18 Pa.C.S. § 2711, which requires that in domestic violence cases, if the bail authority determines that the defendant poses a threat of danger to the victim, he or she must impose the additional conditions of bail that the defendant ‘‘refrain from entering the residence or household of the victim or the victim’s place of employment,’’ and that the defendant ‘‘refrain from committing any further criminal conduct against the victim.’’

If a defendant fails to comply with any of the conditions of the bail bond in paragraph (A) or conditions of release imposed pursuant to paragraph (B), the defendant’s bail may be modified or revoked. Additional sanctions for failing to appear in a criminal case when required are provided in the Crimes Code. See 18 Pa.C.S. § 5124. See also Standard 10-1.2 and Commentary, ABA Standards for Criminal Justice, Chapter 10, Pretrial Release.

Official Note

Former Rule 4005 adopted July 23, 1973, effective 60 days hence, replacing prior Rule 4005(b); amended January 28, 1983, effective July 1, 1983; amended April 29, 1983, effective July 1, 1983; rescinded September 13, 1995, effective January 1, 1996, and replaced by Rule 529. Present Rule 4005 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 526 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

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).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 527 Nonmonetary Conditions of Release on Bail. {#sec-rule-527 omnilex-key=us-pa-regs-official--title-234--Rule 527}

(A) When the bail authority determines that, in addition to the conditions of the bail bond required in every case pursuant to Rule 526(A), nonmonetary conditions of release on bail are necessary, the categories of nonmonetary conditions that the bail authority may impose are:

(1) reporting requirements;

(2) restrictions on the defendant’s travel; and/or

(3) any other appropriate conditions designed to ensure the defendant’s appearance and compliance with the conditions of the bail bond.

(B) The bail authority shall state with specificity on the bail bond any nonmonetary conditions imposed pursuant to this rule.

When the bail authority determines that, in addition to the conditions of the bail bond set forth in Rule 526(A), it is necessary to impose nonmonetary conditions of release on bail in order to reasonably ensure the defendant’s appearance and compliance, the bail authority should consider what the specific circumstances are that relate to the likelihood that the defendant will appear and comply and should tailor the conditions of release for the defendant’s specific circumstances. In addition, the bail authority must determine whether the conditions being considered are reasonably capable of being enforced.

Section 2711 of the Crimes Code, 18 Pa.C.S. § 2711, requires that in domestic violence cases, if the bail authority determines that the defendant poses a threat of danger to the victim, he or she must impose the additional conditions of bail that the defendant ‘‘refrain from entering the residence or household of the victim or the victim’s place of employment,’’ and that the defendant ‘‘refrain from committing any further criminal conduct against the victim.’’

The bail authority should clearly state on the bail bond all conditions of release in specific detail.

The bail authority should consider any reasonable suggestions for nonmonetary conditions of release on bail in an effort to establish what would be the most suitable conditions for a particular defendant. It would be appropriate in some circumstances for the defendant and counsel to offer suggestions about types of conditions that would help the defendant appear and comply with the conditions of the bail bond.

The following sets forth a few examples of conditions that might be imposed to address specific situations. In some circumstances, a combination of such conditions might also be considered. This is not intended to be an exhaustive list of appropriate conditions.

(1) When, for example, the defendant lacks family supervision, is very young, or has recently moved into the community, the bail authority could require that the defendant report by phone or in person at specified times to a designated probation department or bail agency, or that the defendant be supervised by a designated probation department or bail agency, or a designated person or private organization. The supervisor would maintain close contact with the defendant, assist the defendant in making arrangements to appear in court, and, if appropriate, accompany the defendant to court. However, the designated individual, organization, probation department, or bail agency would not be a surety for the defendant unless specifically so designated by the bail authority. It might also be helpful to require that the defendant maintain employment or continue an educational program.

(2) When, for example, the defendant is known to have an alcohol or a drug problem, the bail authority could require that the defendant submit to drug or alcohol testing. The bail authority could also require that the defendant refrain from excessive use of alcoholic beverages or from any use of illegal drugs.

(3) When, for example, the defendant has a history of failing to appear or failing to comply with the conditions of the bail bond, the bail authority might consider restricting the defendant to his or her residence or a supervised halfway house, and permitting the defendant to leave the residence or halfway house to work or attend school, or require that the defendant comply with a curfew.

(4) There may be cases in which the defendant and counsel should suggest to the bail authority that an appropriate condition of release on bail would be to require that the defendant undergo counseling and/or treatment, for example, when the defendant has a history of mental illness or drug or alcohol addiction.

(5) There may be cases when the relationship between the defendant and another person is such that the bail authority might require that the defendant refrain from contact with that other person.

(6) When a case proceeds by summons, the issuing authority must require that the defendant submit to required administrative processing and identification procedures, such as fingerprinting required by the Criminal History Record Information Act, 18 Pa.C.S. § 9112, that ordinarily occur following an arrest. Rule 510(C)(2) requires an order directing the defendant to be fingerprinted be issued with the summons. If the defendant has not completed fingerprinting by the date of the preliminary hearing, completion of these processing procedures must be made a condition of release.

Official Note

Former Rule 4006 adopted July 23, 1973, effective 60 days hence, replacing prior Rules 4008 and 4010; amended January 28, 1983, effective July 1, 1983; rescinded September 13, 1995, effective January 1, 1996, and replaced by Rules 524 and 528. Present Rule 4006 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 527 and amended March 1, 2000, effective April 1, 2001; Comment revised July 10, 2008, effective February 1, 2009.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

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 July 10, 2008 Comment revisions adding paragraph (6) concerning administrative processing and identification procedures published with the Court’s Order at 38 Pa.B. 3975 (July 26, 2008).

The provisions of this Rule 527 amended July 10, 2008, effective February 1, 2009, 38 Pa.B. 3971. Immediately preceding text appears as serial pages (264249) to (264251).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 528 Monetary Condition of Release on Bail. {#sec-rule-528 omnilex-key=us-pa-regs-official--title-234--Rule 528}

(A) If the bail authority determines that it is necessary to impose a monetary condition of bail, to determine the amount of the monetary condition, the bail authority shall consider:

(1) the release criteria set forth in Rule 523; and

(2) the financial ability of the defendant.

(B) The amount of the monetary condition shall be reasonable.

(C) After determining the amount of the monetary condition, the bail authority may permit the deposit of a sum of money not to exceed 10% of the full amount of the monetary condition if he or she determines that such a deposit is sufficient to ensure the defendant’s appearance and compliance.

(D) One or a combination of the following forms of security shall be accepted to satisfy the full amount of the monetary condition:

(1) Cash or when permitted by the local court a cash equivalent.

(2) Bearer bonds of the United States Government, of the Commonwealth of Pennsylvania, or of any political subdivision of the Commonwealth, in the full amount of the monetary condition, provided that the defendant or the surety files with the bearer bond a sworn schedule which shall verify the value and marketability of such bonds, and which shall be approved by the bail authority.

(3) Realty located anywhere within the Commonwealth, including realty of the defendant, as long as the actual net value is at least equal to the full amount of the monetary condition. The actual net value of the property may be established by considering, for example, the cost, encumbrances, and assessed value, or another valuation formula provided by statute, ordinance, or local rule of court. Realty held in joint tenancy or tenancy by the entirety may be accepted provided all joint tenants or tenants by the entirety execute the bond.

(4) Realty located anywhere outside of the Commonwealth but within the United States, provided that the person(s) posting such realty shall comply with all reasonable conditions designed to perfect the lien of the county in which the prosecution is pending.

(5) The surety bond of a professional bondsman licensed under the Judicial Code, 42 Pa.C.S. § § 5741—5749, or of a surety company authorized to do business in the Commonwealth of Pennsylvania.

(E) The bail authority shall record on the bail bond the amount of the monetary condition imposed and the form of security that is posted by the defendant or by an individual acting on behalf of the defendant or acting as a surety for the defendant.

(F) Except as limited in Rule 531, the defendant or another person may deposit the cash percentage of the bail. If the defendant posts the money, the defendant shall sign the bond, thereby becoming his or her own surety, and is liable for the full amount of bail if he or she fails to appear or to comply. When a person other than the defendant deposits the cash percentage of the bail, the clerk of courts or issuing authority shall explain and provide written notice to that person that:

1. if the person agrees to act as a surety and signs the bail bond with the defendant, the person shall be liable for the full amount of bail if the defendant fails to appear or comply; or

2. if the person does not wish to be liable for the full amount of bail, the person shall be permitted to deposit the money for the defendant to post, and will relinquish the right to make a subsequent claim for the return of the money pursuant to these rules. In this case, the defendant would be deemed the depositor, and only the defendant would sign the bond and be liable for the full amount of bail.

3. Pursuant to Rule 535(E), if the bail was deposited by or on behalf of the defendant and the defendant is the named depositor, the amount otherwise returnable to the defendant may be used to pay and satisfy any outstanding restitution, fees, fines, and costs owed by the defendant as a result of a sentence imposed in the court case for which the deposit is being made.

Nothing in this rule precludes the bail authority from releasing the defendant on an unsecured bail bond whereby the defendant, upon executing the bail bond, binds himself or herself to be liable for an amount of money in the event the defendant fails to appear or to comply with the conditions of the bail bond. Although this is a monetary condition, no actual security or money is deposited as a condition of the release. See Rule 524(C)(3) for the definition of unsecured bail bond.

The bail authority may impose a monetary condition in addition to nonmonetary conditions if a combination of such conditions is necessary to reasonably ensure the defendant’s appearance and compliance. For example, a defendant could be released conditioned upon posting a certain amount of money and subject to the supervision of a designated probation department or bail agency, or a designated person or private organization. The supervisor would maintain close contact with the defendant, assist the defendant in making arrangements to appear in court, and, if appropriate, accompany the defendant to court. In addition, the bail authority could require that the supervisor also be a surety for the full amount of the monetary condition so that the supervisor would be financially responsible if the defendant failed to appear.

Paragraph (C) requires that in all cases, the bail authority must consider whether a defendant should be permitted to deposit a percentage of the cash bail.

Nothing in this rule changes the practice of permitting the judicial districts to require by local rule the use of percentage cash bail.

When the bail authority determines that it is appropriate to accept a percentage of the cash bail, the defendant, or an individual acting on behalf of the defendant or acting as a surety for the defendant, may make the deposit with the clerk of courts or the issuing authority. See Rule 535.

When the bail authority authorizes the deposit of a percentage of the cash bail, the defendant may satisfy the monetary condition by depositing, or having an individual acting as a surety on behalf of the defendant deposit, the full amount of the monetary condition. For example, there may be cases in which the defendant does not have the cash to satisfy the percentage cash bail, but has some other form of security, such as realty. In such a case, the defendant must be permitted to execute a bail bond for the full amount of the monetary condition and deposit one of the forms or a combination of the forms set forth in paragraph (D).

If a percentage of the cash bail is accepted pursuant to these rules, when the funds are returned at the conclusion of the defendant’s bail period, the court or bail agency may retain as a fee an amount reasonably related to the cost of administering the cash bail program. See Schilb v. Kuebel, 404 U.S. 357 (1971).

Paragraph (F), which formerly was included in the Comment, was added to the rule in 2014 to clarify the manner in which the defendant or a third party may act as a surety for the defendant’s bond. The rule now requires that written notice be given to the person posting the bail, especially a third party, of the possible consequences if the defendant receives a sentence that includes restitution, a fine, fees, and costs. See also Rule 535 for the procedures for retaining bail money for satisfaction of outstanding restitution, fines, fees, and costs.

The defendant must be permitted to substitute the form(s) of security deposited as provided in Rule 532.

The method of valuation when realty is offered to satisfy the monetary condition pursuant to paragraphs (D)(3) and (D)(4) is determined at the local level. If no satisfactory basis exists for valuing particular tracts of offered realty, especially tracts located in remote areas, acceptance of that realty is not required by this rule.

Official Note

Former Rule 4007 adopted July 23, 1973, effective 60 days hence, replacing prior Rule 4013; amended January 28, 1983, effective July 1, 1983; rescinded September 13, 1995, effective January 1, 1996, and replaced by Rule 4011. Present Rule 4007 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 528 and amended March 1, 2000, effective April 1, 2001; amended September 21, 2012, effective November 1, 2012; amended December 8, 2014, effective February 9, 2015.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the September 21, 2012 amendment correcting a typographical error in paragraph (A)(1) published with the Court’s Order at 42 Pa.B. 6251 (October 6, 2012).

Final Report explaining the December 8, 2014 amendment providing for the advice required to be given concerning possible forfeiture of the deposit published with the Court’s Order 44 Pa.B. 7833 (December 20, 2014).

The provisions of this Rule 528 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247; amended December 8, 2014, effective February 9, 2015, 44 Pa.B. 7830. Immediately preceding text appears at serial pages (363821) to (363823).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 529 Modification of Bail Order Prior to Verdict. {#sec-rule-529 omnilex-key=us-pa-regs-official--title-234--Rule 529}

(a) The issuing authority who is the magisterial district judge who was elected or assigned to preside over the jurisdiction where the crime occurred, upon request of the defendant or the attorney for the Commonwealth, or by the issuing authority sua sponte, and after notice to the defendant and the attorney for the Commonwealth and an opportunity to be heard, may modify a bail order at anytime before the preliminary hearing.

(b) A bail order may be modified by an issuing authority at the preliminary hearing.

(c) The existing bail order may be modified by a judge of the court of common pleas:

(1) at any time prior to verdict upon motion of counsel for either party with notice to opposing counsel and after a hearing on the motion; or

(2) at trial or at a pretrial hearing in open court on the record when all parties are present.

(d) Once bail has been set or modified by a judge of the court of common pleas, it shall not be modified except

(1) by a judge of a court of superior jurisdiction, or

(2) by the same judge or by another judge of the court of common pleas either at trial or after notice to the parties and a hearing.

(e) When bail is modified pursuant to this rule, the modification shall be explained to the defendant and stated in writing or on the record by the issuing authority or the judge.

In making a decision whether to modify a bail order, the issuing authority or judge should evaluate the information about the defendant as it relates to the release criteria in Rule 523 and the types of release on bail set forth in Rule 524.

In Municipal Court cases, the Municipal Court judge may modify bail in the same manner as a common pleas judge may under this rule. See Rule 1011.

The procedures for modification of a bail order by the issuing authority were amended in 2006 to permit the issuing authority to modify bail at any time before the preliminary hearing on the issuing authority’s own motion or request of a party when, for example, new information becomes available concerning the defendant that would affect the issuing authority’s decision concerning the type of release and the conditions of release imposed at the preliminary arraignment. The 2006 amendments to subdivision (a) are not intended to affect bail procedures in the Philadelphia Municipal Court.

Once bail has been modified by a common pleas judge, only the common pleas judge subsequently may modify bail, even in cases that are pending before a district justice. See Rules 543 and 536.

Pursuant to this rule, the motion, notice, and hearing requirements in subdivisions (c)(1) and (d)(2) must be followed in all cases before a common pleas judge may modify a bail order unless the modification is made on the record in open court either when all parties are present at a pretrial hearing—such as a suppression hearing—or during trial.

See Pa.R.A.P. 1610 for the procedures to obtain appellate court review of an order of a judge of the court of common pleas granting or denying release, or modifying the conditions of release.

The provisions of this Rule 529 amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended May 19, 2006, effective August 1, 2006, 36 Pa.B. 2631; amended January 4, 2022, effective July 1, 2022, 52 Pa.B. 346. Immediately preceeding text appears at serial pages (376052) and (383601).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 530 Duties and Powers of a Bail Agency. {#sec-rule-530 omnilex-key=us-pa-regs-official--title-234--Rule 530}

(A) Each court of common pleas may, by local rule, establish or designate a bail agency to monitor and assist defendants released on bail pursuant to these rules. The duties and powers of the agency shall include the following:

(1) gathering information about defendants relevant to bail decisions;

(2) making recommendations to the bail authorities concerning the types of release and the conditions of release on bail for individual defendants;

(3) supervising defendants when so designated by the bail authority;

(4) administering percentage cash bail when authorized by a bail authority pursuant to Rule 528, and evaluating for the bail authority the reliability and solvency of prospective sureties for percentage cash bail programs; and

(5) making reasonable rules and regulations to implement the bail agency’s functions.

(B) The representative of the bail agency who obtains information from a defendant shall, both orally and in writing, advise the defendant that anything said to a bail agency representative may be used against the defendant.

(C) Information obtained from or concerning the defendant by a bail agency shall be disclosed only to the defendant, counsel for the defendant, the issuing authority or judge setting bail, the attorney for the Commonwealth, and the department of probation or parole preparing a presentence report regarding the defendant. This information shall not be disclosed or used except for purposes relating to the defendant’s bail or a presentence report about the defendant, or in a prosecution based on the falsity of the information, or for impeachment purposes to the extent permitted by law.

Under the pre-1995 bail rules, a court bail agency, pursuant to a local rule establishing the bail agency, could be a surety in a percentage cash bail program, as well as administering the program, or a private person or agency could be required to be the surety. In addition, the bail agency was permitted by some local rules to decide the exact amount of the percentage of the cash bail that a defendant was required to post, provided that it did not exceed 10% of the total amount of the monetary condition. Nothing in this rule is intended to preclude these procedures from continuing or from being incorporated in any new local rules establishing bail agencies. See Rule 528.

The information from or concerning a defendant that is gathered by a bail agency pursuant to paragraph (C) may be disclosed only to a specifically limited group of people, who may not use it or disclose it for any purposes other than the bail determination, preparation of a presentence report on the defendant, a prosecution for the falsity of the information, or impeachment as permitted by law.

Bail agencies should ensure that their employees avoid conflicts of interest.

See Rule 536 for the authority of a bail agency to apply for a bail piece.

Official Note

Former Rule 4010 adopted July 23, 1973, effective 60 days hence; amended September 22, 1976, effective November 1, 1976; amended January 28, 1983, effective July 1, 1983; amended March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; rescinded September 13, 1995, effective January 1, 1996, and replaced by Rule 521. Present Rule 4010 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 530 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

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).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 531 Qualifications of Surety. {#sec-rule-531 omnilex-key=us-pa-regs-official--title-234--Rule 531}

(A) Subject to any additional requirements prescribed by local rule of court, the following shall be qualified to act as sureties:

(1) owners of cash or securities as provided in Rule 528;

(2) owners of realty located in the Commonwealth as provided in Rule 528(D)(3), or owners of realty located outside the Commonwealth but within the United States as provided in Rule 528(D)(4), provided that satisfactory evidence of ownership or special approval of the court is obtained;

(3) surety companies approved by the court and authorized to do business in the Commonwealth of Pennsylvania;

(4) professional bondsmen licensed under the Judicial Code, 42 Pa.C.S. § § 5741—5750;

(5) for percentage cash bail only, the defendant or any private individual or organization.

(B) No attorney, or spouse or employee of any attorney, shall be permitted to become a surety for a client of the attorney or for a client of the attorney’s office.

(C) No sheriff, employee of a sheriff, tipstaff, other employee, or official of the courts or issuing authorities of any judicial district shall be permitted to become a surety unless the defendant is a member of that person’s immediate family.

(D) No person who is named in any current official list of undesirable bondsmen shall be permitted to become a surety in any case.

Paragraph (A)(2) is intended to require that ownership of realty anywhere within the Commonwealth qualifies a person to act as a surety in any judicial district in the Commonwealth. Local procedure may not require as an ‘‘additional requirement’’ that realty must be located within the county before it may be posted to satisfy a monetary condition of release.

‘‘Bail bondsman,’’ as defined in the Judicial Code, 42 Pa.C.S. § § 5741—5750, includes a person who engages in the business of giving bail as a surety for compensation. See 42 Pa.C.S. § 5741.

‘‘Surety,’’ as defined in the Judicial Code, 42 Pa.C.S. § § 5741—5750, includes a person who pledges security, whether or not for compensation, in exchange for the release from custody of a person charged with a crime prior to adjudication. See 42 Pa.C.S. § 5741.

Under paragraph (A)(5), either the defendant or another person, such as a relative or neighbor, may deposit the percentage cash bail. If the defendant deposits the money, he or she signs the bond, thereby becoming a surety and liable for the full amount of the monetary condition if a condition of the bail bond is violated. If someone other than the defendant deposits the money and co-signs the bond with the defendant, that person becomes a surety for the defendant and is liable for the full amount of the monetary condition if a condition of the bail bond is violated. There may be cases in which the other person does not co-sign the bond, but merely deposits the money on behalf of the defendant. In such cases, that person would not be a surety and would not be liable for the full amount of the monetary condition.

Paragraph (B) is not intended to preclude an attorney, or the spouse or employee of an attorney, from being a surety as long as the defendant is not the attorney’s client or a client of the attorney’s office.

‘‘Immediate family,’’ as used in paragraph (C), is intended to include only grandparents, parents, spouses, siblings, children, grandchildren, stepchildren, and like relatives-in-law.

Official Note

Former Rule 4011 adopted July 23, 1973, effective 60 days hence; rescinded September 13, 1995, effective January 1, 1996, and replaced by Rule 534. Present Rule 4011 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 531 and amended March 1, 2000, effective April 1, 2001; amended May 2, 2017, effective July 1, 2017.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the May 2, 2017 amendment regarding the statutory definition of ‘‘surety’’ published with the Court’s Order at 47 Pa.B. 2872 (May 20, 2017).

The provisions of this Rule 531 amended May 2, 2017, effective July 1, 2017, 47 Pa.B. 2871. Immediately preceding text appears at serial pages (383602) and (376055) to (376056).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 532 Substitution of Surety or Security. {#sec-rule-532 omnilex-key=us-pa-regs-official--title-234--Rule 532}

The defendant or the defendant’s surety, with the approval of the bail authority, may at any time substitute another surety or another form of security. Upon substitution of the form of security, the original security shall be returned to the depositor.

For the forms of security that may be deposited to satisfy the full amount of the monetary condition, see Rule 528(D).

Official Note

Former Rule 4012 adopted July 23, 1973, effective 60 days hence; rescinded September 13, 1995, effective January 1, 1996, and replaced by Rule 533. Present Rule 4012 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 532 and Comment revised March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

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).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 533 Increased Amount of Monetary Condition of Bail. {#sec-rule-533 omnilex-key=us-pa-regs-official--title-234--Rule 533}

When the amount of a monetary condition of bail is increased, the original amount shall remain in effect and additional cash or other form of security shall be required only for the amount of the increase.

In cases in which the bail authority increases the amount of a monetary condition, the defendant is only required to post the additional amount, either in cash or in one of the forms of security permitted in Rule 528. The clerk of courts retains the original amount in the cash or other form deposited, unless the defendant chooses to deposit a different form or combination of forms as provided in Rules 528 and 532.

Official Note

Former Rule 4013 adopted July 23, 1973, effective 60 days hence; amended November 9, 1984, effective January 2, 1985; rescinded September 13, 1995, effective January 1, 1996, and replaced by Rule 526. Present Rule 4013 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 533 and Comment revised March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

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).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 534 Duration of Obligation. {#sec-rule-534 omnilex-key=us-pa-regs-official--title-234--Rule 534}

Unless bail is revoked, a bail bond shall be valid until the full and final disposition of the case, including all avenues of direct appeal to the Supreme Court of Pennsylvania.

The intent of this rule is to continue the validity of the bail bond through all avenues of direct appeal in the state courts, but to exclude state post-conviction collateral proceedings, federal appeals and post-conviction habeas corpus proceedings, or any other collateral attacks.

When bail is terminated upon acceptance of the defendant into an ARD program, such action constitutes a ‘‘full and final disposition’’ for purposes of this rule and Rule 535 (Receipt of Deposit; Return of Deposit). See Rule 313.

A defendant who is released on bail pursuant to these rules and subsequently incarcerated on the same charges may be entitled, before the full and final disposition of the case, to a return of any cash or other form of security deposited to satisfy a monetary condition of bail. See Commonwealth v. McDonald, 382 A.2d 124 (Pa. 1978).

Official Note

Former Rule 4014 adopted July 23, 1973, effective 60 days hence, replacing previous Rule 4006; amended December 11, 1981, effective July 1, 1982; rescinded November 9, 1984, effective January 2, 1985, and not replaced. Present Rule 4014 adopted 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; renumbered Rule 534 and Comment revised March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

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).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 535 Receipt for Deposit; Return or Retention of Deposit. {#sec-rule-535 omnilex-key=us-pa-regs-official--title-234--Rule 535}

(A) Any deposit of cash in satisfaction of a monetary condition of bail shall be given to the issuing authority, the clerk of courts, or another official designated by the president judge by local rule pursuant to Rule 117(C). The issuing authority, clerk, or other official who accepts the deposit shall give the depositor an itemized receipt, and shall note on the bail bond the amount deposited and the name of the person who made the deposit. The defendant shall sign the bail bond, and be given a copy of the signed bail bond.

(1) When the issuing authority accepts a deposit of bail, the issuing authority shall note on the docket transcript the amount deposited and the name of the person who made the deposit. The issuing authority shall have the deposit, the docket transcript, and a copy of the bail bond delivered to the clerk of courts.

(2) When another official is designated by the president judge to accept a bail deposit, that official shall deliver the deposit and the bail bond to either the issuing authority, who shall proceed as provided in paragraph (A)(1), or the clerk of courts, who shall proceed as provided in paragraph (A)(3).

(3) When the clerk of courts accepts the deposit, the clerk shall note in the list of docket entries the amount deposited and the name of the person who made the deposit, and shall place the bail bond in the criminal case file.

(B) When the deposit is the percentage cash bail authorized by Rule 528, the depositor shall be notified that by signing the bail bond, the depositor becomes a surety for the defendant and is liable for the full amount of the monetary condition in the event the defendant fails to appear or comply as required by these rules and that, if the defendant is the named depositor, the amount otherwise returnable may be used to pay and satisfy any outstanding restitution, fees, fines, and costs owed by the defendant as a result of a sentence imposed in the court case for which the deposit is being made.

(C) The clerk of courts shall place all cash bail deposits in a bank or other depository approved by the court and shall keep records of all deposits.

(D) Unless a motion is filed pursuant to paragraph (E), within 20 days of the full and final disposition of the case, the deposit shall be returned to the depositor, less any bail-related fees or commissions authorized by law, and the reasonable costs, if any, of administering the percentage cash bail program.

(E) In any case in which the defendant is the named depositor, upon the full and final disposition of the case, the court may order, upon motion of the attorney for the Commonwealth, that any money deposited pursuant to this rule by or on behalf of the defendant that is otherwise returnable to the defendant be held and applied to the payment of any restitution, fees, fines, and costs imposed upon the defendant in the case for which the deposit had been made, unless the defendant shows that he or she would suffer an undue hardship.

(F) When a case is transferred pursuant to Rule 130(B) or Rule 555, the full deposit shall be promptly forwarded to the transfer judicial district, together with any bail-related fees, commissions, or costs paid by the depositor.

When the president judge has designated another official to accept the bail deposit as provided in Rule 117, the other official’s authority under Rule 117 and this rule is limited to accepting the deposit, having the defendant sign the bail bond, releasing the defendant, and delivering the bail deposit and bail bond to the issuing authority or the clerk of courts.

Paragraph (E) was added in 2014 to permit the attorney for the Commonwealth to seek, at the full and final disposition of any case in which the defendant is the named depositor of bail money, to have the deposited bail money applied to any restitution, fees, fines, and costs imposed on the defendant in the case for which the deposit had been made. This new provision, adopted pursuant to the authority granted in 42 Pa.C.S. § 5702, is a procedural mechanism by which the court may retain money previously deposited with the court to satisfy the defendant’s obligations but only in the current criminal case. This procedure also secures the right of the defendant to proffer reasons why retention of the bail money would be an undue hardship. See Commonwealth v. McDonald, 382 A.2d 124 (Pa. 1978).

The procedure stated in this rule is the only procedure by which bail may be retained to pay for assessments imposed on the defendant. Any local practice that permits the retention of bail other than as provided in this rule is inconsistent with the statewide rules and subject to the provisions in Rule 105(B).

For the manner of distribution of any funds applied to the outstanding restitution, fees, fines, and costs owed by the defendant, see the Pennsylvania Supreme Court’s Uniform Disbursement Schedule, In Re: Promulgation of Financial Regulations Pursuant to Act 49 of 2009 (42 Pa.C.S. § § 3733(A.1) and 3733.1), No. 335 Judicial Administration Docket (October 29, 2009), 204 Pa. Code § 29.353.

The procedures in paragraph (E) contemplate the decision to retain the bail to be made at the court of common pleas. There may be court cases in which bail had been set that are resolved at the magisterial district court, for example, in cases in which a plea agreement is entered to withdraw misdemeanor or felony charges in exchange for a plea to summary charges or misdemeanor charges within the jurisdiction of the magisterial district judge. In such cases, the magisterial district judge may not order the retention of bail money where the defendant is the named depositor for the payment of assessments unless the Commonwealth and the defendant agree.

Any order issued pursuant to paragraph (E) shall be in conformance with Rule 114.

Given the complexities of posting real estate to satisfy a monetary condition of release, posting of real estate may not be feasible outside the normal business hours.

Paragraph (B) requires the issuing authority or the clerk of courts who accepts a percentage cash bail deposit to explain to the person who deposits the money the consequences of acting as a surety. There will be cases in which a person merely deposits the money for the defendant to post, and is not acting as the defendant’s surety. In this situation, the defendant is the depositor and should receive the receipt pursuant to paragraph (A). See Rule 528. See also Rule 528 for the notice the clerk of courts or issuing authority must provide when a person other than the defendant deposits the cash percentage of the bail.

When cash bail that is deposited in a bank pursuant to paragraph (C) is retained by a county in an interest-bearing account, case law provides that the county retains the earned interest. See Crum v. Burd, 571 A.2d 1 (Pa. Cmwlth. 1989), allocatur denied, 581 A.2d 574 (Pa. 1990).

The full and final disposition of a case includes all avenues of direct appeal in the state courts. Therefore, the return of any deposits would not be required until after either the expiration of the appeal period or, if an appeal is taken, after disposition of the appeal. See Rule 534.

Any fees, commissions, or costs assessed pursuant to paragraph (D) must be reasonably related to the county’s actual bail administration costs. Each county should establish local procedures to ensure adequate notice and uniform application of such fees, commissions, or costs. See, e.g., Buckland v. County of Montgomery, 812 F.2d 146 (3rd Cir. 1987).

When a case is transferred pursuant to Rules 130(B) and 555, paragraph (F) and Rules 130(B) and 555 require that any bail-related fees, commissions, or costs collected pursuant to paragraph (D) be forwarded to the transfer judicial district. Fees, commissions, or costs that have been assessed but not paid at the time of transfer may not be collected in the transferring judicial district.

When bail is terminated upon acceptance of the defendant into an ARD program, such action constitutes a ‘‘full and final disposition’’ for purposes of this rule and Rule 534 (Duration of Obligation). See Rule 313.

Official Note

Former Rule 4015, previously Rule 4009, adopted November 22, 1965, effective June 1, 1966; renumbered Rule 4015, former paragraph (b) integrated into paragraph (a) and new paragraph (b) adopted July 23, 1973, effective 60 days hence; rescinded September 13, 1995, effective January 1, 1996, and replaced by present Rule 4015. Present Rule 4015 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 535 and amended March 1, 2000, effective April 1, 2001; amended April 20, 2000, effective July 1, 2000; amended March 3, 2004, effective July 1, 2004; amended June 30, 2005, effective August 1, 2006; amended March 9, 2006, effective August 1, 2006; amended December 8, 2014, effective February 9, 2015.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining new paragraph (E) concerning the interplay with Rules 130(B) (former Rule 21(B)) and 555 (former Rule 300) published with Court’s Order at 30 Pa.B. 2219 (May 6, 2000).

Final Report explaining the March 3, 2004 changes to paragraph (A) published with Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

Final Report explaining the June 30, 2005 changes to the rule correlative to new Rule 117 published with the Court’s Order at 35 Pa.B. 3911 (July 16, 2005).

Final Report explaining the March 9, 2006 changes to paragraph (A) concerning deposits of bail published with the Court’s Order at 36 Pa.B. 1398 (March 25, 2006).

Final Report explaining the December 8, 2014 changes concerning defendant’s deposits of bail to be applied to restitution, fees, fines, and costs in the current case published with the Court’s Order 44 Pa.B. 7833 (December 20, 2014).

The provisions of this Rule 535 amended April 20, 2000, effective July 1, 2000, 30 Pa.B. 2211; amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended June 30, 2005, effective August 1, 2006, 35 Pa.B. 3901; amended March 9, 2006, effective August 1, 2006, 36 Pa.B. 1397; amended December 8, 2014, effective February 9, 2015, 44 Pa.B. 7830. Immediately preceding text appears at serial pages (312446) and (338907) to (338908).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 536 Procedures Upon Violation of Conditions: Revocation of Release and Forfeiture; Bail Pieces; Exoneration of Surety. {#sec-rule-536 omnilex-key=us-pa-regs-official--title-234--Rule 536}

(A) SANCTIONS

(1) Revocation of Release

(a) A person who violates a condition of the bail bond is subject to a revocation of release and/or a change in the conditions of the bail bond by the bail authority.

(b) When a violation of a condition occurs, the bail authority may issue a bench warrant for the defendant’s arrest. When the bench warrant is executed, the bench warrant proceedings shall be conducted pursuant to Rule 150.

(c) The bail authority also may order the defendant or the defendant’s surety to explain why the defendant’s release should not be revoked or why the conditions of release should not be changed. A copy of the order shall be served on the defendant and the defendant’s surety, if any.

(d) When the bail authority changes the conditions of the bail bond and/or revokes the defendant’s release, the bail authority shall state in writing or on the record the reasons for so doing.

(2) Forfeiture

(a) When a monetary condition of release has been imposed and the defendant has violated a condition of the bail bond, the bail authority may order the cash or other security forfeited and shall state in writing or on the record the reasons for so doing. When the surety is a third party, the cash or other security may be ordered forfeited only when the condition of the bail bond violated is that the defendant has failed to appear for a scheduled court proceeding.

(b) Written notice of the forfeiture shall be given to the defendant and any surety, either personally or by both first class and certified mail at the defendant’s and the surety’s last known addresses.

(c) The forfeiture shall not be executed until 90 days after notice of the forfeiture order.

(d) The bail authority may direct that a forfeiture be set aside or remitted as provided by law or if justice does not require the full enforcement of the forfeiture order.

(e) When a magisterial district judge orders bail forfeited pursuant to this rule, the magisterial district judge shall generate a check in the amount of the bail monies he or she has on deposit in the case, and shall send the check and a copy of the docket transcript to the clerk of courts for processing and disbursement as provided by law.

(B) BAIL PIECES

(1) A surety or bail agency may apply to the court for a bail piece.

(2) If the court is satisfied that a bail piece is required, it may issue a bail piece authorizing the surety or bail agency to apprehend and detain the defendant, and to bring the defendant before the bail authority without unnecessary delay.

(C) EXONERATION

(1) A bail authority, as provided by law or as justice requires, shall exonerate a surety who deposits cash in the amount of any forfeiture ordered or who surrenders the defendant in a timely manner.

(2) When the conditions of the bail bond have been satisfied, or the forfeiture has been set aside or remitted, the bail authority shall exonerate the obligors and release any bail.

This rule does not apply when a defendant has been arrested pursuant to extradition proceedings. See generally Uniform Criminal Extradition Act, 42 Pa.C.S. § § 9121—9148, and particularly Section 9139 concerning forfeiture proceedings in such cases. See also the Crimes Code, 18 Pa.C.S. § 5124, which imposes criminal sanctions for failing to appear in a criminal case when required.

Paragraph (A)(1)(b) was amended and former paragraph (A)(1)(d) was deleted in 2005 to make it clear that a warrant for the arrest of the defendant for failure to comply with a condition of bail is a bench warrant. For the procedures when a paragraph (A)(1)(b) bench warrant is executed, see Rule 150 (Bench Warrants). For the procedures for issuing a bench warrant when a defendant fails to appear for a preliminary hearing, see paragraph (D) of Rule 543 (Disposition of Case at Preliminary Hearing).

Nothing in this rule is intended to preclude the issuance and service of the notice of revocation of release under paragraph (A)(1) and the notice of forfeiture of security under paragraph (A)(2) to be performed simultaneously. Compare 42 Pa.C.S. § 5741.1.

Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service’s return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

Once bail has been modified by a common pleas judge pursuant to Rule 529, only the common pleas judge subsequently may change the conditions of release, even in cases that are pending before a magisterial district judge. See Rules 543 and 529.

This rule was amended in 2017 following the enactment of Section 5747.1 of the Judicial Code, 42 Pa.C.S. § 5747.1, that limits the grounds for which bail might be forfeited by a third party surety to the defendant’s failure to appear for a court proceeding. For all other violations of the conditions of bail, all other remedies remain available, including but not limited to, forfeiture by the defendant when he or she is the surety, revocation of bail, modification of bail, and indirect criminal contempt.

Whenever the bail authority is a judicial officer in a court not of record, pursuant to paragraph (A)(2)(a), that officer should set forth in writing his or her reasons for ordering a forfeiture, and the written reasons should be included with the transcript.

Paragraph (A)(2)(c) provides an automatic 90-day stay on the execution of the forfeiture to give the surety time to produce the defendant or the defendant time to appear and comply with the conditions of bail.

‘‘Conditions of the bail bond’’ as used in this rule include the conditions set forth in Rule 526(A) and the conditions of release defined in Rules 524, 527, and 528.

Section 5747.1(b)(5) of the Judicial Code requires the bail authority to grant specific remittances to sureties if the defendant is produced within specified time periods. See 42 Pa.C.S. § 5747.1(b)(5). Otherwise, remittance or exoneration of the surety is within the discretion of the bail authority.

Official Note

Former Rule 4016 adopted July 23, 1973, effective 60 days hence, replacing prior Rule 4012; Comment revised January 28, 1983, effective July 1, 1983; rescinded September 13, 1995, effective January 1, 1996, and replaced by Rule 4016. Present Rule 4016 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 536 and Comment revised March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004; Comment revised August 24, 2004, effective August 1, 2005; amended December 30, 2005, effective August 1, 2006; Comment revised May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; Comment revised September 18, 2008, effective February 1, 2009; amended May 2, 2017, effective July 1, 2017.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 3, 2004 rule changes deleting ‘‘show cause’’ published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

Final Report explaining the August 24, 2004 Comment revision published with the Court’s Order at 34 Pa.B. 5025 (September 11, 2004).

Final Report explaining the December 30, 2005 amendments concerning bench warrants published with the Court’s Order at 36 Pa.B. 184 (January 14, 2006).

Final Report explaining the May 1, 2007 Comment revision concerning bench warrants following a failure to appear at a preliminary hearing published with the Court’s Order at 37 Pa.B. 2503 (June 2, 2007).

Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service’s return receipt electronic option published with the Court’s Order at 38 Pa.B. 5428 (October 4, 2008).

Final Report explaining the May 2, 2017 amendments necessitated by statutory changes related to bail forfeitures published with the Court’s Order at 47 Pa.B. 2872 (May 20, 2017).

The provisions of this Rule 536 amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended December 30, 2005, effective August 1, 2006, 36 Pa.B. 181; amended May 1, 2007, effective September 4, 2007, 37 Pa.B. 2496; amended September 18, 2008, effective February 1, 2009, 38 Pa.B. 5425; amended May 2, 2017, effective July 1, 2017, 47 Pa.B. 2871. Immediately preceeding text appears at serial pages (376060), (338909) to (338910) and (385523).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 540 Preliminary Arraignment. {#sec-rule-540 omnilex-key=us-pa-regs-official--title-234--Rule 540}

(A) In the discretion of the issuing authority, the preliminary arraignment of the defendant may be conducted by using two-way simultaneous audio-visual communication. When counsel for the defendant is present, the defendant must be permitted to communicate fully and confidentially with defense counsel immediately prior to and during the preliminary arraignment.

(B) If the defendant is under the age of 18 at the time the complaint is filed and is charged with one of the offenses excluded from the definition of ‘‘delinquent act’’ in paragraphs (2)(i), (2)(ii), and (2)(iii) of 42 Pa.C.S. § 6302, the issuing authority shall determine whether the defendant’s parents, guardian, or other custodian have been notified of the charge(s). If the parents, guardian, or other custodian have not been notified, the issuing authority shall notify them.

(C) At the preliminary arraignment, a copy of the complaint accepted for filing pursuant to Rule 508 shall be given to the defendant.

(D) If the defendant was arrested with a warrant, the issuing authority shall provide the defendant with copies of the warrant and supporting affidavit(s) at the preliminary arraignment, unless the warrant and affidavit(s) are not available at that time, in which event the defendant shall be given copies no later than the first business day after the preliminary arraignment.

(E) If the defendant was arrested without a warrant pursuant to Rule 519, unless the issuing authority makes a determination of probable cause, the defendant shall not be detained.

(F) The issuing authority shall not question the defendant about the offense(s) charged but shall read the complaint to the defendant. The issuing authority also shall inform the defendant:

(1) of the right to secure counsel of choice and the right to assigned counsel in accordance with Rule 122;

(2) of the right to have a preliminary hearing, except in cases being presented to an indicting grand jury pursuant to Rule 556.2; and

(3) if the offense is bailable, the type of release on bail, as provided in Chapter 5 Part C of these rules, and the conditions of the bail bond.

(G) Unless the preliminary hearing is waived by a defendant who is represented by counsel, or the attorney for the Commonwealth is presenting the case to an indicting grand jury pursuant to Rule 556.2, the issuing authority shall:

(1) fix a day and hour for a preliminary hearing which shall not be later than 14 days after the preliminary arraignment if the defendant is in custody on the current case only and no later than 21 days if the defendant is not in custody or is in custody but not on the current case only unless extended for cause shown; and

(2) give the defendant notice, orally and in writing,

(a) of the date, time, and place of the preliminary hearing,

(b) that failure to appear without cause for the preliminary hearing will be deemed a waiver by the defendant of the right to be present at any further proceedings before the issuing authority, and will result in the case proceeding in the defendant’s absence and in the issuance of a warrant of arrest, and

(c) if the case is held for court at the time of the preliminary hearing that if the defendant fails to appear without cause at any proceeding for which the defendant’s presence is required, including the trial, the defendant’s absence may be deemed a waiver of the right to be present, and the proceeding may be conducted in the defendant’s absence.

(H) After the preliminary arraignment, if the defendant is detained, the defendant shall be given an immediate and reasonable opportunity to post bail, secure counsel, and notify others of the arrest. Thereafter, if the defendant does not post bail, he or she shall be committed to jail as provided by law.

(I) If a monetary condition of bail is set, the issuing authority shall accept payment of the monetary condition, as provided in Rule 528, at any time prior to the return of the docket transcript to the court of common pleas.

A preliminary arraignment as provided in this rule bears no relationship to arraignment in criminal courts of record. See Rule 571.

Within the meaning of Rule 540, counsel is present when physically with the defendant or with the issuing authority.

Under paragraph (A), the issuing authority has discretion to order that a defendant appear in person for the preliminary arraignment.

Under paragraph (A), two-way simultaneous audio-visual communication is a form of advanced communication technology.

See Rule 130 concerning venue when proceedings are conducted using advanced communication technology.

Paragraph (D) 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 513(A), 208(a), and 1003. See Rule 513.1(F) concerning a defendant’s access to arrest warrant information that has been sealed.

Paragraph (D) includes a narrow exception that 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.

For public access to arrest warrant information, see Rules 513, 513.1, and 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 519(A).

Under paragraph (E), 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.

Pursuant to the 2004 amendment to paragraph (G)(2), at the time of the preliminary arraignment, the defendant must be given notice, both orally and in writing, of the date, time, and place of the preliminary hearing. The notice must also explain that, if the defendant fails to appear without cause for the preliminary hearing, the defendant’s absence will constitute a waiver of the right to be present, the case will proceed in the defendant’s absence, and a warrant for the defendant’s arrest will be issued.

The 2012 amendment to paragraph (G) conforms this rule with the new procedures set forth in Chapter 5, Part E, permitting the attorney for the Commonwealth to proceed to an indicting grand jury without a preliminary hearing in cases in which witness intimidation has occurred, is occurring, or is likely to occur.

Paragraph (G)(2)(b) was amended in 2013 changing the phrase ‘‘without good cause’’ to ‘‘without cause’’ in reference to whether the defendant’s absence at the time of the preliminary hearing permits the preliminary hearing to proceed in the defendant’s absence. This amendment is not intended as a change in the standard for making this determination. The change makes the language consistent with the language in Rule 602 describing the standard by which a defendant’s absence is judged for the trial to proceed in the defendant’s absence. In both situations, the standard is the same.

Paragraph (G)(2)(c) requires that the defendant be advised of the consequences of failing to appear for any court proceeding. See Rule 602 concerning a defendant’s failure to appear for trial; see also Commonwealth v. Bond, 693 A.2d 220, 223 (Pa. Super. 1997) (‘‘[A] defendant who is unaware of the charges against him, unaware of the establishment of his trial date or is absent involuntarily is not absent ‘without cause.’’’).

There have been some judicial districts in which the practice has been to set a date for the preliminary hearing within the time limits of this rule with no intention of a preliminary hearing actually taking place on that date; instead, the preliminary hearing is automatically continued by the court. This practice is inconsistent with the intent of the rule.

Nothing in these rules gives the defendant’s parents, guardian, or other custodian legal standing in the matter being heard by the court or creates a right of the defendant to have his or her parents, guardian, or other custodian present.

See Rule 1003(D) for the procedures governing preliminary arraignments in the Philadelphia Municipal Court.

See Chapter 5, Part H, Rules 595, 596, 597, and 598, for the procedures governing requests for transfer from criminal proceedings to juvenile proceedings pursuant to 42 Pa.C.S. § 6322 in cases in which the defendant was under the age of 18 at the time of the commission of the alleged offense and charged with one of the offenses excluded from the definition of ‘‘delinquent act’’ in paragraphs (2)(i), (2)(ii), and (2)(iii) of 42 Pa.C.S. § 6302.

For when an arresting officer is required to provide the name and contact information of the victim to the magisterial district court conducting the preliminary arraignment, see 18 P.S. § 11.201(2)(iii)(A).

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; renumbered Rule 540 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended August 24, 2004, effective August 1, 2005; amended June 21, 2012, effective in 180 days; amended July 31, 2012, effective November 1, 2012; amended May 2, 2013, effective June 1, 2013; Comment revised December 23, 2013, effective March 1, 2014; amended November 30, 2016, effective April 1, 2017.

Committee Explanatory Reports:

Report explaining the provisions of the new Rule 140 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 March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the May 10, 2002 amendments concerning advanced communication technology published with the Court’s Order at 32 Pa.B. 2591 (May 25, 2002).

Final Report explaining the August 24, 2004 amendments concerning notice that the case will proceed in defendant’s absence published with the Court’s Order at 34 Pa.B. 5025 (September 11, 2004).

Final Report explaining the June 21, 2012 amendments concerning indicting grand juries published with the Court’s Order at 42 Pa.B. 4153 (July 7, 2012).

Final Report explaining July 31, 2012 amendments concerning defendants under the age of 18 and charged with one of the offenses enumerated in 42 Pa.C.S. § 6302(2)(i), (ii), or (iii) published with the Court’s Order at 42 Pa.B. 5340 (August 18, 2012).

Final Report explaining the May 2, 2013 amendments concerning notice of consequences of failing to appear published the Court’s Order at 43 Pa.B. 2710 (May 18, 2013).

Final Report explaining the December 23, 2013 Comment revisions concerning sealed arrest warrant information published with the Court’s Order at 44 Pa.B. 243 (January 11, 2014).

Final Report explaining the amendments concerning the scheduling of the preliminary hearing published with the Court’s Order at 46 Pa.B. 7810 (December 17, 2016).

The provisions of this Rule 540 amended May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended June 21, 2012, effective in 180 days, 42 Pa.B. 4140; amended July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333; amended May 2, 2013, effective June 1, 2013, 43 Pa.B. 2704; amended December 23, 2013, effective March 1, 2014, 44 Pa.B. 239; amended November 30, 2016, effective April 1, 2017, 46 Pa.B. 7809; amended November 30, 2023, effective immediately, 53 Pa.B. 7724; amended May 2, 2024, effective October 1, 2024, 54 Pa.B. 2743. Immediately preceding text appears at serial pages (414643) to (414644) and (417699) to (417701).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 541 Waiver of Preliminary Hearing. {#sec-rule-541 omnilex-key=us-pa-regs-official--title-234--Rule 541}

(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).

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).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 542 Preliminary Hearing; Continuances. {#sec-rule-542 omnilex-key=us-pa-regs-official--title-234--Rule 542}

(A) The attorney for the Commonwealth may appear at a preliminary hearing and:

(1) assume charge of the prosecution; and

(2) recommend to the issuing authority that the defendant be discharged or bound over to court according to law.

(B) When no attorney appears on behalf of the Commonwealth at a preliminary hearing, the affiant may be permitted to ask questions of any witness who testifies.

(C) The defendant shall be present at any preliminary hearing except as provided in these rules, and may:

(1) be represented by counsel;

(2) cross-examine witnesses and inspect physical evidence offered against the defendant;

(3) call witnesses on the defendant’s behalf, other than witnesses to the defendant’s good reputation only;

(4) offer evidence on the defendant’s own behalf, and testify; and

(5) make written notes of the proceedings, or have counsel do so, or make a stenographic, mechanical, or electronic record of the proceedings.

(D) At the preliminary hearing, the issuing authority shall determine from the evidence presented whether there is a prima facie case that (1) an offense has been committed and (2) the defendant has committed it.

(E) Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.

(F) In any case in which a summary offense is joined with a misdemeanor, felony, or murder charge, the issuing authority shall not proceed on the summary offense except as provided in Rule 543(F).

(G) CONTINUANCES

(1) The issuing authority may, for cause shown, grant a continuance and shall note on the transcript every continuance together with:

(a) the grounds for granting each continuance;

(b) the identity of the party requesting such continuance; and

(c) the new date, time, and place for the preliminary hearing, and the reasons that the particular date was chosen.

When the preliminary hearing is conducted in the court of common pleas, the judge shall record the party to which the period of delay caused by the continuance shall be attributed and whether the time will be included in or excluded from the computation of the time within which trial must commence in accordance with Rule 600.

(2) The issuing authority shall give notice of the new date, time, and place for the preliminary hearing to the defendant, the defendant’s attorney of record, if any, and the attorney for the Commonwealth.

(a) The notice shall be in writing.

(b) Notice shall be served on the defendant either in person or by first class mail.

(c) Notice shall be served on defendant’s attorney of record and the attorney for the Commonwealth either by personal delivery, or by leaving a copy for or mailing a copy to the attorneys at the attorneys’ offices.

As the judicial officer presiding at the preliminary hearing, the issuing authority controls the conduct of the preliminary hearing generally. When an attorney appears on behalf of the Commonwealth, the prosecution of the case is under the control of that attorney. When no attorney appears at the preliminary hearing on behalf of the Commonwealth, the issuing authority may ask questions of any witness who testifies, and the affiant may request the issuing authority to ask specific questions. In the appropriate circumstances, the issuing authority may also permit the affiant to question Commonwealth witnesses, cross-examine defense witnesses, and make recommendations about the case to the issuing authority.

Paragraph (C)(3) is intended to make clear that the defendant may call witnesses at a preliminary hearing only to negate the existence of a prima facie case, and not merely for the purpose of discovering the Commonwealth’s case. The modification changes the language of the rule interpreted by the Court in Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975). This amendment was made to preserve the limited function of a preliminary hearing.

Paragraph (E) was amended in 2013 to reiterate that traditionally our courts have not applied the law of evidence in its full rigor in proceedings such as preliminary hearings, especially with regard to the use of hearsay to establish the elements of a prima facie case. See the Pennsylvania Rules of Evidence generally, but in particular, Article VIII. Accordingly, hearsay, whether written or oral, may establish the elements of any offense. The presence of witnesses to establish these elements is not required at the preliminary hearing. But compare Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (Pa. 1990) (plurality) (disapproving reliance on hearsay testimony as the sole basis for establishing a prima facie case). See also Rule 1003 concerning preliminary hearings in Philadelphia Municipal Court.

If the case is held for court, the normal rules of evidence will apply at trial.

For the procedures when a defendant fails to appear for the preliminary hearing, see Rule 543(D).

In cases in which summary offenses are joined with misdemeanor, felony, or murder charges, pursuant to paragraph (F), during the preliminary hearing, the issuing authority is prohibited from proceeding on the summary offenses, or adjudicating or disposing of the summary offenses, except as provided in Rule 543(F).

For the contents of the transcript, see Rule 135.

See Chapter 5 Part E for the procedures governing indicting grand juries. Under these rules, a case may be presented to the grand jury instead of proceeding to a preliminary hearing. See Rule 556.2.

Official Note

Former Rule 141, previously Rule 120, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970; revised January 31, 1970, effective May 1, 1970; renumbered Rule 141 and amended September 18, 1973, effective January 1, 1974; amended June 30, 1975, effective July 30, 1975; amended October 21, 1977, effective January 1, 1978; paragraph (D) amended April 26, 1979, effective July 1, 1979; amended February 13, 1998, effective July 1, 1998; rescinded October 8, 1999, effective January 1, 2000. Former Rule 142, previously Rule 124, adopted June 30, 1964, effective January 1, 1965, suspended effective May 1, 1970; present rule adopted January 31, 1970, effective May 1, 1970; renumbered Rule 142 September 18, 1973, effective January 1, 1974; amended October 22, 1981, effective January 1, 1982; effective date extended to July 1, 1982; amended July 12, 1985, effective January 1, 1986, effective date extended to July 1, 1986; rescinded October 8, 1999, effective January 1, 2000. New Rule 141, combining former Rules 141 and 142, adopted October 8, 1999, effective January 1, 2000; renumbered Rule 542 and Comment revised March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended March 9, 2006, effective September 1, 2006; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; amended January 27, 2011, effective in 30 days; amended June 21, 2012, effective in 180 days; amended October 1, 2012, effective July 1, 2013; amended April 25, 2013, effective June 1, 2013.

Committee Explanatory Reports:

Final Report explaining the February 13, 1998 amendments concerning questioning of witnesses published with the Court’s Order at 28 Pa.B. 1127 (February 28, 1998).

Final Report explaining new Rule 141 published with the Court’s Order at 29 Pa.B. 5509 (October 23, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the August 24, 2004 amendments concerning notice published with the Court’s Order at 34 Pa.B. 5025 (September 11, 2004).

Final Report explaining the March 9, 2006 amendments to paragraph (D) published with the Court’s Order at 36 Pa.B. 1392 (March 25, 2006).

Final Report explaining the May 1, 2007 amendments deleting the certified mail service requirement from paragraph (E)(2)(b) published with the Court’s Order at 37 Pa.B. 2503 (June 2, 2007).

Court’s Order of January 27, 2011 adding new paragraphs (D) and (E) concerning hearsay at the preliminary hearing published at 41 Pa.B. 834 (February 12, 2011).

Final Report explaining the June 21, 2012 revision of the Comment concerning indicting grand juries published with the Court’s Order at 42 Pa.B. 4153 (July 7, 2012).

Final Report explaining the October 1, 2012 amendments to paragraph (G)(1) concerning computation of time and (G)(2) concerning notice of continuance published with the Court’s Order at 42 Pa.B. 6629 (October 20, 2012).

Final Report explaining the April 25, 2013 amendments to paragraph (E) concerning hearsay at preliminary hearings published with the Court’s Order at 43 Pa.B. 2562 (May 11, 2013).

The provisions of this Rule 542 amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended March 9, 2006, effective September 1, 2006, 36 Pa.B. 1385; amended May 1, 2007, effective September 4, 2007, 37 Pa.B. 2496; amended January 27, 2011, effective in 30 days, 41 Pa.B. 834; amended June 21, 2012, effective in 180 days, 42 Pa.B. 4140; amended October 1, 2012, effective July 1, 2013, 42 Pa.B. 6622; amended April 25, 2013, effective June 1, 2013, 43 Pa.B. 2560. Immediately preceeding text appears at serial pages (364099) to (364102).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 543 Disposition of Case at Preliminary Hearing. {#sec-rule-543 omnilex-key=us-pa-regs-official--title-234--Rule 543}

(A) At the conclusion of the preliminary hearing, the decision of the issuing authority shall be publicly pronounced.

(B) If the issuing authority finds that the Commonwealth has established a prima facie case that an offense has been committed and the defendant has committed it, the issuing authority shall hold the defendant for court on the offense(s) on which the Commonwealth established a prima facie case. If there is no offense for which a prima facie case has been established, the issuing authority shall discharge the defendant.

(C) When the defendant has appeared and has been held for court, the issuing authority shall:

(1) set bail as permitted by law if the defendant did not receive a preliminary arraignment; or

(2) continue the existing bail order, unless the issuing authority modifies the order as permitted by Rule 529(a);

(3) if the defendant has not submitted to the administrative processing and identification procedures as authorized by law, such as fingerprinting pursuant to Rule 510(C)(2), make compliance with these processing procedures a condition of bail; and

(4) advise the defendant that, if the defendant fails to appear without cause at any proceeding for which the defendant’s presence is required, including the trial, the defendant’s absence may be deemed a waiver of the right to be present, and the proceeding may be conducted in the defendant’s absence.

(D) In any case in which the defendant fails to appear for the preliminary hearing:

(1) if the issuing authority finds that the defendant did not receive notice of the preliminary hearing by a summons served pursuant to Rule 511, a warrant of arrest shall be issued pursuant to Rule 509(2)(d).

(2) If the issuing authority finds that there was cause explaining the defendant’s failure to appear, the issuing authority shall continue the preliminary hearing to a specific date and time, and shall give notice of the new date, time, and place as provided in Rule 542(G)(2). The issuing authority shall not issue a bench warrant.

(3) If the issuing authority finds that the defendant’s absence is without cause and after notice, the absence shall be deemed a waiver by the defendant of the right to be present at any further proceedings before the issuing authority.

(a) In these cases, the issuing authority shall proceed with the case in the same manner as though the defendant were present.

(b) If the preliminary hearing is conducted and the case held for court, the issuing authority shall

(i) give the defendant notice by first class mail of the results of the preliminary hearing and that a bench warrant has been requested; and

(ii) pursuant to Rule 547, transmit the transcript to the clerk of courts with a request that a bench warrant be issued by the court of common pleas and, if the defendant has not complied with the fingerprint order issued pursuant to Rule 510(C)(2), with a notice to the court of common pleas of the defendant’s noncompliance.

(c) If the preliminary hearing is conducted and the case is dismissed, the issuing authority shall give the defendant notice by first class mail of the results of the preliminary hearing.

(d) If a continuance is granted, the issuing authority shall give the parties notice of the new date, time, and place as provided in Rule 542(G)(2), and may issue a bench warrant. If a bench warrant is issued and the warrant remains unserved for the continuation of the preliminary hearing, the issuing authority shall vacate the bench warrant. The case shall proceed as provided in paragraphs (D)(3)(b) or (c).

(E) If the Commonwealth does not establish a prima facie case of the defendant’s guilt, and no application for a continuance is made and there is no reason for a continuance, the issuing authority shall dismiss the complaint.

(F) In any case in which a summary offense is joined with misdemeanor, felony, or murder charges:

(1) If the Commonwealth establishes a prima facie case pursuant to paragraph (B), the issuing authority shall not adjudicate or dispose of the summary offenses, but shall forward the summary offenses to the court of common pleas with the charges held for court.

(2) If the Commonwealth does not establish a prima facie case pursuant to paragraph (B), upon the request of the Commonwealth, the issuing authority shall dispose of the summary offense as provided in Rule 454 (Trial In Summary Cases).

(3) If the Commonwealth withdraws all the misdemeanor, felony, and murder charges, the issuing authority shall dispose of the summary offense as provided in Rule 454 (Trial In Summary Cases).

(G) Except as provided in Rule 541(D), once a case is bound over to the court of common pleas, the case shall not be remanded to the issuing authority.

Paragraph (B) was amended in 2011 to clarify what is the current law in Pennsylvania that, based on the evidence presented by the Commonwealth at the preliminary hearing, the issuing authority may find that the Commonwealth has not made out a prima facie case as to the offense charged in the complaint but has made out a prima facie case as to a lesser offense of the offense charged. In this case, the issuing authority may hold the defendant for court on that lesser offense only. The issuing authority, however, may not sua sponte reduce the grading of any charge.

See Rule 1003 (Procedure In Non-Summary Municipal Court Cases) for the preliminary hearing procedures in Municipal Court, including reducing felony charges at the preliminary hearing in Philadelphia.

Paragraph (C) reflects the fact that a bail determination will already have been made at the preliminary arraignment, except in those cases in which, pursuant to a summons, the defendant’s first appearance is at the preliminary hearing. See Rules 509 and 510.

Paragraph (C)(4) requires that the defendant be advised of the consequences of failing to appear for any court proceeding. See Rule 602 concerning a defendant’s failure to appear for trial; see also Commonwealth v. Bond, 693 A.2d 220, 223 (Pa. Super. 1997) (‘‘[A] defendant who is unaware of the charges against him, unaware of the establishment of his trial date or is absent involuntarily is not absent ‘without cause.’’’).

If the administrative processing and identification procedures as authorized by law, such as fingerprinting required by the Criminal History Record Information Act, 18 Pa.C.S. § 9112, that ordinarily occur following an arrest are not completed previously, when bail is set at the conclusion of the preliminary hearing, the issuing authority must order the defendant to submit to the administrative processing and identification procedures as a condition of bail. See Rule 527 for nonmonetary conditions of release on bail.

If a case initiated by summons is held for court after the preliminary hearing is conducted in the defendant’s absence pursuant to paragraph (D)(2) and the defendant has not complied with the fingerprint order issued pursuant to Rule 510(C)(2), the issuing authority must include with the transmittal of the transcript a notice to the court of common pleas that the defendant has not complied with the fingerprint order. See Rule 547.

Nothing in this rule is intended to preclude judicial districts from providing written notice of the arraignment to the defendant at the conclusion of the preliminary hearing when a case is held for court. See Rule 571.

Paragraphs (D)(2) and (D)(3) were amended in 2013 changing the phrase ‘‘good cause’’ to ‘‘cause’’ in reference to whether the defendant’s absence at the time of the preliminary hearing permits the preliminary hearing to proceed in the defendant’s absence. This amendment is not intended as a change in the standard for making this determination. The change makes the language consistent with the language in Rule 602 describing the standard by which a defendant’s absence is judged for the trial to proceed in the defendant’s absence. In both situations, the standard is the same.

When a defendant fails to appear for the preliminary hearing, before proceeding with the case as provided in paragraph (D), the issuing authority must determine (1) whether the defendant received notice of the time, date, and place of the preliminary hearing either in person at a preliminary arraignment as provided in Rule 540(G)(2) or in a summons served as provided in Rule 511, and (2) whether the defendant had cause explaining the absence.

If the issuing authority determines that the defendant did not receive notice, the issuing authority must issue an arrest warrant as provided in Rule 509, and the case will proceed pursuant to Rules 516 or 517. See paragraph (D)(1).

If the issuing authority determines that there is cause explaining why the defendant failed to appear, the preliminary hearing must be continued and rescheduled for a date certain. See paragraph (D)(2). For the procedures when a preliminary hearing is continued, see Rule 542(G).

If the issuing authority determines that the defendant received service of the summons as defined in Rule 511 and has not provided cause explaining why he or she failed to appear, the defendant’s absence constitutes a waiver of the defendant’s right to be present for subsequent proceedings before the issuing authority. The duration of this waiver only extends through those proceedings that the defendant is absent.

When the defendant fails to appear after notice and without cause, paragraph (D)(3)(a) provides that the case is to proceed in the same manner as if the defendant were present. The issuing authority either would proceed with the preliminary hearing as provided in Rule 542(A), (B), (C) and Rule 543(A), (B), (C), and (D)(3)(b) or (c); or, if the issuing authority determines it necessary, continue the case to a date certain as provided in Rule 542(G); or, in the appropriate case, convene the preliminary hearing for the taking of testimony of the witnesses who are present, and then continue the remainder of the hearing until a date certain. When the case is continued, the issuing authority may issue a bench warrant as provided in paragraph (D)(3)(d), and must send the required notice of the new date to the defendant, thus providing the defendant with another opportunity to appear.

Paragraph (D)(3)(b)(ii) requires the issuing authority to include with the Rule 547 transmittal a request that the court of common pleas issue a bench warrant if the case is held for court.

In addition to the paragraph (D)(3)(b) notice requirements, the notice may include the date of the arraignment in common pleas court.

For purposes of modifying bail once bail has been set by a common pleas judge, see Rules 529 and 536.

See Rule 571 (Arraignment) for notice of arraignment requirements.

Rule 542(F) specifically prohibits an issuing authority at a preliminary hearing from proceeding on any summary offenses that are joined with misdemeanor, felony, or murder charges, except as provided in paragraph (F) of this rule. Paragraph (F) sets forth the procedures for the issuing authority to handle these summary offenses at the preliminary hearing. These procedures include the issuing authority (1) forwarding the summary offenses together with the misdemeanor, felony, or murder charges held for court to the court of common pleas, or (2) disposing of the summary offenses as provided in Rule 454 by accepting a guilty plea or conducting a trial whenever (a) the misdemeanor, felony, and murder charges are withdrawn, or (b) a prima facie case is not established at the preliminary hearing and the Commonwealth requests that the issuing authority proceed on the summary offenses.

Under paragraph (F)(2), in those cases in which the Commonwealth does not intend to refile the misdemeanor, felony, or murder charges, the Commonwealth may request that the issuing authority dispose of the summary offenses. In these cases, if all the parties are ready to proceed, the issuing authority should conduct the summary trial at that time. If the parties are not prepared to proceed with the summary trial, the issuing authority should grant a continuance and set the summary trial for a date and time certain.

In those cases in which a prima facie case is not established at the preliminary hearing, and the Commonwealth does not request that the issuing authority proceed on the summary offenses, the issuing authority should dismiss the complaint, and discharge the defendant unless there are outstanding detainers against the defendant that would prevent the defendant’s release.

Paragraph (G) emphasizes the general rule that once a case has been bound over to the court of common pleas, the case is not permitted to be remanded to the issuing authority. There is a limited exception to the general rule in the situation in which the right to a previously waived preliminary hearing is reinstated and the parties agree, with the consent of the common pleas judge, that the preliminary hearing be held before the issuing authority. See Rule 541(D).

Nothing in this rule would preclude the refiling of one or more of the charges, as provided in these rules.

See Rule 313 for the disposition of any summary offenses joined with misdemeanor or felony charges when the defendant is accepted into an ARD program on the misdemeanor or felony charges.

Official Note

Original Rule 123, adopted June 30, 1964, effective January 1, 1965, suspended January 31, 1970, effective May 1, 1970. New Rule 123 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 143 September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; amended 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; renumbered Rule 142 October 8, 1999, effective January 1, 2000; renumbered Rule 543 and amended March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended December 30, 2005, effective August 1, 2006; amended March 9, 2006, effective September 1, 2006; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; amended July 10, 2008, effective February 1, 2009; amended February 12, 2010, effective April 1, 2010; amended January 27, 2011, effective in 30 days; Comment revised July 31, 2012, effective November 1, 2012; amended October 1, 2012, effective July 1, 2013; amended May 2, 2013, effective June 1, 2013.

Committee Explanatory Reports:

Report explaining the August 9, 1994 amendments published at 22 Pa.B. 18 (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 October 8, 1999 renumbering of Rule 143 published with the Court’s Order at 29 Pa.B. 5509 (October 23, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the August 24, 2004 changes concerning the procedures when a defendant fails to appear published with the Court’s Order at 34 Pa.B. 5025 (September 11, 2004).

Final Report explaining the December 30, 2005 changes adding references to bench warrants published with the Court’s Order at 36 Pa.B. 184 (January 14, 2006).

Final Report explaining the March 9, 2006 amendments adding new paragraphs (E) and (F) published with the Court’s Order at 36 Pa.B. 1392 (March 25, 2006).

Final Report explaining the May 19, 2006 amendments correcting cross-references to Rule 529 published with the Court’s Order at 36 Pa.B. 2633 (June 3, 2006).

Final Report explaining the May 1, 2007 changes clarifying the procedures when a defendant fails to appear published with the Court’s Order at 37 Pa.B. 2496 (June 2, 2007).

Final Report explaining the July 10, 2008 amendments to paragraphs (C) and (D)(2)(c) concerning administrative processing and identification procedures published with the Court’s Order at 38 Pa.B. 3971 (July 26, 2008).

Final Report explaining the February 12, 2010 amendments adding new paragraph (G) prohibiting remands to the issuing authority published with the Court’s Order at 40 Pa.B. 1068 (February 27, 2010).

Court’s Order adopting the January 27, 2011 amendments to paragraph (B) concerning prima facie case published at 41 Pa.B. 834 (February 12, 2011).

Final Report explaining the July 31, 2012 revision of the Comment changing the citation to Rule 540(F)(2) to Rule 540(G)(2) published with the Court’s Order at 42 Pa.B. 5340 (August 18, 2012).

Final Report explaining the October 1, 2012 amendments to paragraphs (D)(2) and (D)(3)(d) adding ‘‘place’’ to ‘‘date and time’’ for preliminary hearing notices published with the Court’s Order at 42 Pa.B. 6629 (October 20, 2012).

Final Report explaining the May 2, 2013 amendments concerning notice of consequences of failing to appear published the Court’s Order at 43 Pa.B. 2710 (May 18, 2013).

The provisions of this Rule 543 amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended December 30, 2005, effective August 1, 2006, 36 Pa.B. 181; amended March 9, 2006, effective September 1, 2006, 36 Pa.B. 1385; amended May 19, 2006, effective August 1, 2006, 36 Pa.B. 2631; amended May 1, 2007, effective September 4, 2007, 37 Pa.B. 2496; amended July 10, 2008, effective February 1, 2009, 38 Pa.B. 3971; amended February 12, 2010, effective April 1, 2010, 40 Pa.B. 1068; amended January 27, 2011, effective in 30 days, 41 Pa.B. 834; amended July 31, 2012, 42 Pa.B. 5333; amended October 1, 2012, effective July 1, 2013, 42 Pa.B. 6622; amended May 2, 2013, effective June 1, 2013, 43 Pa.B. 2704; amended January 4, 2022, effective July 1, 2022, 52 Pa.B. 346. Immediately preceeding text appears at serial pages (366954) to (366959).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 544 Reinstituting Charges Following Withdrawal or Dismissal. {#sec-rule-544 omnilex-key=us-pa-regs-official--title-234--Rule 544}

(A) When charges are dismissed or withdrawn at, or prior to, a preliminary hearing, or when a grand jury declines to indict and the complaint is dismissed, the attorney for the Commonwealth may reinstitute the charges by approving, in writing, the re-filing of a complaint with the issuing authority who dismissed or permitted the withdrawal of the charges.

(B) Following the re-filing of a complaint pursuant to paragraph (A), if the attorney for the Commonwealth determines that the preliminary hearing should be conducted by a different issuing authority, the attorney shall file a Rule 132 motion with the clerk of courts requesting that the president judge, or a judge designated by the president judge, assign a different issuing authority to conduct the preliminary hearing. The motion shall set forth the reasons for requesting a different issuing authority.

This rule provides the procedures for reinstituting criminal charges following their withdrawal or dismissal at, or prior to, the preliminary hearing as provided in Rule 543, or after the complaint is dismissed when a grand jury declines to indict.

The authority of the attorney for the Commonwealth to reinstitute charges that have been dismissed at the preliminary hearing is well established by case law. See, e.g., McNair’s Petition, 324 Pa. 48, 187 A. 498 (1936); Commonwealth v. Thorpe, 549 Pa. 343, 701 A.2d 488 (1997). This authority, however, is not unlimited. First, the charges must be reinstituted prior to the expiration of the applicable statute(s) of limitations. See Commonwealth v. Thorpe, 549 Pa. 343, 701 A.2d 488 (1997). In addition, the courts have held that the reinstitution may be barred in a case in which the Commonwealth has repeatedly rearrested the defendant in order to harass him or her, or if the rearrest results in prejudice. See Commonwealth v. Thorpe, 549 Pa. 343, 701 A.2d 488 (1997); Commonwealth v. Shoop, 420 Pa. Super. 606, 617 A.2d 351 (1992).

The decision to reinstitute charges must be made by the attorney for the Commonwealth. Therefore, in cases in which no attorney for the Commonwealth was present at the preliminary hearing, the police officer may not re-file the complaint without the written authorization of the attorney for the Commonwealth. See Rule 507 (Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth—Local Option) for procedures for prior approval of complaints.

Pursuant to paragraph (A), in the usual case, charges will be reinstituted by filing a complaint with the issuing authority who dismissed or permitted the withdrawal of the charges. However, there may be cases in which the attorney for the Commonwealth determines that a different issuing authority should conduct the preliminary hearing, such as when an error of law is made by the issuing authority in finding that the Commonwealth did not sustain its burden to establish a prima facie case. Paragraph (B) requires that, in these cases, the attorney for the Commonwealth must file a petition with the court of common pleas requesting that the president judge, or a judge designated by the president judge, assign a different issuing authority to conduct the preliminary hearing. For the procedure for requesting assignment of a different issuing authority, see Rule 132.

See Chapter 5 Part E for the procedures governing indicting grand juries. If the attorney for the Commonwealth is reinstituting the charges after a complaint is dismissed when a grand jury had declined to indict, the complaint should be re-filed with the issuing authority with whom the original complaint was filed.

See Chapter 5 Part F(1) for the procedures governing motions.

Official Note

Original Rule 123, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 123 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 143 September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; amended 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; renumbered Rule 142 October 8, 1999, effective January 1, 2000. New Rule 143 adopted October 8, 1999, effective January 1, 2000; renumbered Rule 544 and amended March 1, 2000, effective April 1, 2001; amended June 21, 2012, effective in 180 days.

Committee Explanatory Reports:

Final Report explaining new Rule 143 published with the Court’s Order at 29 Pa.B. 5509 (October 23, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the June 21, 2012, amendments to paragraph (A) concerning indicting grand juries published with the Court’s Order at 42 Pa.B. 4153 (July 7, 2012).

The provisions of this Rule 544 amended June 21, 2012, effective in 180 days, 42 Pa.B. 4140. Immediately preceding text appears at serial pages (355853) and (335953).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 545 Witnesses: Compulsory Process. {#sec-rule-545 omnilex-key=us-pa-regs-official--title-234--Rule 545}

(A) The issuing authority shall issue such process as may be necessary for the summoning of witnesses for the Commonwealth or the defendant.

(B) Persons shall not be permitted to testify at a preliminary hearing without first being duly sworn or affirmed according to law.

Official Note

Former Rule 122 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970; amended January 31, 1970, effective May 1, 1970; renumbered Rule 144 September 18, 1973, effective January 1, 1974; renumbered Rule 545 and amended March 1, 2000, effective April 1, 2001.

Committee Explanartory Reports:

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 546 Dismissal Upon Satisfaction or Agreement. {#sec-rule-546 omnilex-key=us-pa-regs-official--title-234--Rule 546}

When a defendant is charged in a case in which the most serious offense charged is a misdemeanor, 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 there is no attorney for the Commonwealth present, 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.

Paragraphs (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 (2) that, when the attorney for the Commonwealth is present, he or she must consent to the dismissal, is one of the criteria that, along with the other enumerated criteria, gives the issuing authority discretion to dismiss, even when the affiant refuses to consent.

A dismissal of the case pursuant to this rule is a dismissal of all the charges, including any summary offenses that have been joined with the misdemeanor(s) and are part of the case. See the Comment to Rule 502 (Instituting Proceedings In Court Cases) (when a misdemeanor, felony, or murder is charged with a summary offense in the same complaint, the case should proceed as a court case under Chapter 5 Part B). See also Rule 551 (Withdrawal of Charges Pending Before Issuing Authority) that permits the attorney for the Commonwealth to withdraw one or more of the charges.

For dismissal upon satisfaction or agreement in summary cases in the magisterial district courts see Rule 458.

For the dismissal upon satisfaction or by agreement in summary cases, as defined in Rule 103, that have been appealed to the court of common pleas, see Rule 463.

For court dismissal upon satisfaction or agreement in court cases, see Rule 586.

Official Note

Formerly Rule 121, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970; revised January 31, 1970, effective May 1, 1970; renumbered Rule 145 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; renumbered Rule 546 and amended March 1, 2000, effective April 1, 2001; amended March 9, 2006, effective September 1, 2006; Comment revised January 27, 2021, effective June 1, 2021.

Committee Explanatory Reports:

Final Report explaining the April 18, 1997 amendments aligning the rule with Rule 458 published with the Court’s Order at 27 Pa.B. 2119 (May 3, 1997).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 9, 2006 amendments to the first paragraph and the Comment published with the Court’s Order at 36 Pa.B. 1392 (March 25, 2006).

Final Report explaining the January 27, 2021 Comment revisions regarding dismissal by agreement of summary cases in the common pleas court published with the Court’s Order at 51 Pa.B. 688 (February 6, 2021).

The provisions of this Rule 546 amended March 9, 2006, effective September 1, 2006, 36 Pa.B. 1385; amended January 27, 2021, effective June 1, 2021, 51 Pa.B. 684. Immediately preceding text appears at serial pages (370047) to (370048).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 547 Transmittal of Transcript and Associated Documents. {#sec-rule-547 omnilex-key=us-pa-regs-official--title-234--Rule 547}

(a) When a defendant is held for court, or after the issuing authority receives notice that the case will be presented to the indicting grand jury and closes out the case, the issuing authority shall prepare a transcript of the proceedings. The transcript shall contain all the information required by these rules to be recorded on the transcript. It shall be signed by the issuing authority, and have affixed to it the issuing authority’s seal of office.

(b) The issuing authority shall transmit the transcript to the clerk of the proper court within five days after holding the defendant for court or after closing out the case upon receipt of the notice that the case will be presented to the indicting grand jury.

(c) In addition to this transcript the issuing authority also shall transmit the following documents:

(1) the original complaint or a copy thereof if electronically transmitting the transcript and associated documents;

(2) the summons or the warrant of arrest and its return;

(3) all affidavits filed in the proceeding;

(4) the appearance or bail bond for the defendant, if any, or a copy of the order committing the defendant to custody;

(5) a request for the court of common pleas to issue a bench warrant as required in Rule 543(D)(3)(b);

(6) notice informing the court of common pleas that the defendant has failed to comply with the fingerprint order as required in Rule 543(D)(3)(b)(ii); and

(7) a copy of the notice that the case will be presented to the indicting grand jury.

(d) Electronic Transmission.

(1) The president judge by local rule may require the transcript and any associated documents to be electronically scanned and transmitted to the clerk of courts in digital format in lieu of transmitting the physical paper transcript and associated documents.

(2) The electronically scanned transcript and associated documents shall constitute the original documents for purposes of these rules.

(3) The issuing authority shall retain the physical paper transcript and associated documents as may be required by rule of court or records retention policies.

See Rule 135 for the general contents of the transcript. There are a number of other rules that require certain things to be recorded on the transcript to make a record of the proceedings before the issuing authority. See, e.g., Rules 542(G)(1) and 543.

When the case is held for court pursuant to Rule 543(D)(3), the issuing authority must include with the transcript transmittal a request for the court of common pleas to issue a bench warrant.

When the case is held for court pursuant to Rule 543(D)(3)(b)(ii), the issuing authority must include with the transcript transmittal a notice to the court of common pleas that the defendant has not complied with the fingerprint order issued pursuant to Rule 510(C)(2). See Pa.R.Crim.P. 543(D)(3)(b)(ii). The court of common pleas shall take whatever actions deemed appropriate to address this non-compliance.

See Chapter 5 Part E for the procedures governing indicting grand juries. Pursuant to Rule 556.2(A)(3), the judge shall notify the issuing authority that the case will be presented to the indicting grand jury. Pursuant to Rule 556.2(A)(3)(a), upon receipt of the notice, the issuing authority shall close out the case in his or her office, and forward it to the court of common pleas for all further proceedings. When the case is transmitted to the court of common pleas, the clerk of courts should associate the transcript and other documents transmitted by the issuing authority with the motion and order filed pursuant to Rule 556.2(A)(5).

When arrest warrant information has been sealed pursuant to Rule 513.1, the arrest warrant information already will have been filed with the clerk of courts. When the case is transmitted to the court of common pleas, the clerk of courts should associate the transcript and other documents transmitted by the issuing authority with the original file created for the sealing procedure.

For when the magisterial district court or the Philadelphia Municipal Court is required to transmit the contact information of the victim to the court of common pleas, see 18 P.S. § 11.201(2)(iii)(B).

The provisions of this Rule 547 amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended May 1, 2007, effective September 4, 2007, 37 Pa.B. 2496; amended July 10, 2008, effective February 1, 2009, 38 Pa.B. 3971; amended June 21, 2012, effective in 180 days, 42 Pa.B. 4140; amended December 23, 2013, effective March 1, 2014, 44 Pa.B. 239; amended November 30, 2023, effective immediately, 53 Pa.B. 7724; amended May 2, 2024, effective April 1, 2025, 54 Pa.B. 2738. Immediately preceeding text appears at serial pages (404414) and (417703) to (417704).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 548 Amendment of Transcript in Court Cases. {#sec-rule-548 omnilex-key=us-pa-regs-official--title-234--Rule 548}

The issuing authority may make any proper amendments, additions, or corrections to the transcript before it is returned to court. After the transcript has been returned, amendments, additions, or corrections can be made to the transcript only upon application filed and permission granted by the court, and only to perfect the record to conform to the facts of the case.

Official Note

Former Rule 127 adopted June 30, 1964, effective January 1, 1965, suspended January 31, 1970, effective May 1, 1970, amended January 31, 1970, effective May 1, 1970; renumbered Rule 147 September 18, 1973, effective January 1, 1974; renumbered Rule 548 and amended March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 549 Compelling Transmission of Papers by Issuing Authority. {#sec-rule-549 omnilex-key=us-pa-regs-official--title-234--Rule 549}

If an issuing authority refuses or fails to transmit the papers as required by these rules, the court may issue a subpoena to compel their production.

Official Note

Former Rule 128 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970; amended January 31, 1970, effective May 1, 1970; renumbered Rule 148 September 18, 1973, effective January 1, 1974; renumbered Rule 549 March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 550 Pleas of Guilty Before Magisterial District Judge in Court Cases. {#sec-rule-550 omnilex-key=us-pa-regs-official--title-234--Rule 550}

(A) In a court case in which a magisterial district judge is specifically empowered by statute to exercise jurisdiction, a defendant may plead guilty before a magisterial district judge at any time up to the completion of the preliminary hearing or the waiver thereof.

(B) The magisterial district judge may refuse to accept a plea of guilty, and the magisterial district judge shall not accept such plea unless there has been a determination, after inquiry of the defendant, that the plea is voluntarily and understandingly tendered.

(C) The plea shall be in writing:

(1) signed by the defendant, with a representation by the defendant that the plea is entered knowingly, voluntarily, and intelligently; and

(2) signed by the magisterial district judge, with a certification that the plea was accepted after a full inquiry of the defendant, and that the plea was made knowingly, voluntarily, and intelligently.

(D) A defendant who enters a plea of guilty under this rule may, within 30 days after sentence, change the plea to not guilty by so notifying the magisterial district judge in writing. In such event, the magisterial district judge shall vacate the plea and judgment of sentence, and the case shall proceed in accordance with Rule 547, as though the defendant had been held for court.

(E) Thirty days after the acceptance of the guilty plea and the imposition of sentence, the magisterial district judge shall certify the judgment, and shall forward the case to the clerk of courts of the judicial district for further proceedings.

In certain cases, what would ordinarily be a court case within the jurisdiction of the court of common pleas has been placed within the jurisdiction of magisterial district judges. See Judicial Code, 42 Pa.C.S. § 1515(a)(5), (5.1), (6), (6.1), and (7). This rule provides the procedures to implement this expanded jurisdiction of magisterial district judges.

In those cases in which either the defendant declines to enter a plea of guilty before the magisterial district judge or the magisterial district judge refuses to accept a plea of guilty, the case is to proceed in the same manner as any other court case.

This rule applies whenever a magisterial district judge has jurisdiction to accept a plea of guilty in a court case.

Under paragraph (A), it is intended that a defendant may plead guilty at the completion of the preliminary hearing or at any time prior thereto.

Prior to accepting a plea of guilty under this rule, it is suggested that the magisterial district judge consult with the attorney for the Commonwealth concerning the case, concerning the defendant’s possible eligibility for ARD or other types of diversion, and concerning possible related offenses that might be charged in the same complaint. See Commonwealth v. Campana, 304 A.2d 432 (Pa. 1973), vacated and remanded, 414 U.S. 808 (1973), on remand, 314 A.2d 854 (Pa. 1974).

Before accepting a plea:

(a) The magisterial district judge should be satisfied of jurisdiction to accept the plea, and should determine whether any other related offenses exist that might affect jurisdiction.

(b) The magisterial district judge should be satisfied that the defendant is eligible under the law to plead guilty before a magisterial district judge, and, when relevant, should check the defendant’s prior record and inquire into the amount of damages.

(c) The magisterial district judge should advise the defendant of the right to counsel. For purposes of appointment of counsel, these cases should be treated as court cases, and the Rule 122 (Appointment of Counsel) procedures should be followed.

(d) The magisterial district judge should advise the defendant that, if the defendant wants to change the plea to not guilty, the defendant, within 30 days after imposition of sentence, must notify the magisterial district judge who accepted the plea of this decision in writing.

(e) The magisterial district judge should make a searching inquiry into the voluntariness of the defendant’s plea. A colloquy similar to that suggested in Rule 590 should be conducted to determine the voluntariness of the plea. At a minimum, the magisterial district judge should ask questions to elicit the following information:

(1) that the defendant understands the nature of the charges pursuant to which the plea is entered;

(2) that there is a factual basis for the plea;

(3) that the defendant understands that he or she is waiving the right to trial by jury;

(4) that the defendant understands that he or she is presumed innocent until found guilty;

(5) that the defendant is aware of the permissible range of sentences and/or fines for the offenses charged;

(6) that the defendant is aware that the magisterial district judge is not bound by the terms of any plea agreement tendered unless the magisterial district judge accepts such agreement; and

(7) that the defendant understands that the plea precludes consideration for ARD or other diversionary programs.

See Rule 590 and the Comment thereto for further elaboration of the required colloquy. See also Commonwealth v. Minor, 356 A.2d 346 (Pa. 1976), overruled on other grounds in Commonwealth v. Minarik, 427 A.2d 623, 627 (Pa. 1981); Commonwealth v. Ingram, 316 A.2d 77 (Pa. 1974); Commonwealth v. Martin, 282 A.2d 241 (Pa. 1971).

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

Paragraph (C) does not preclude verbatim transcription of the colloquy and plea.

The time limit for withdrawal of the plea contained in paragraph (D) was increased from 10 days to 30 days in 2014 to place a defendant who enters a plea to a misdemeanor before a magisterial district judge closer to the position of a defendant who pleads guilty to the same offense in common pleas court or a defendant who pleads guilty to a summary offense before a magisterial district judge. A 30-day time period for withdrawal of the plea is consistent with the 30-day period for summary appeal and the 30-day common pleas guilty plea appeal period.

Withdrawal of the guilty plea is the only relief available before a magisterial district judge for a defendant who has entered a plea pursuant to this rule. Any further challenge to the entry of the plea must be sought in the court of common pleas.

For the procedures concerning sentences that include restitution in court cases, see Rule 705.1.

At the time of sentencing, or at any time within the 30-day period before transmitting the case to the clerk of courts pursuant to paragraph (E), the magisterial district judge may accept payment of, or may establish a payment schedule for, installment payments of restitution, fines, and costs.

If a plea is not entered pursuant to this rule, the papers must be transmitted to the clerk of courts of the judicial district in accordance with Rule 547. After the time set forth in paragraph (A) for acceptance of the plea of guilty has expired, the magisterial district judge no longer has jurisdiction to accept a plea.

Regardless of whether a plea stands or is timely changed to not guilty by the defendant, the magisterial district judge must transmit the transcript and all supporting documents to the appropriate court, in accordance with Rule 547.

Once the case is forwarded as provided in this rule and in Rule 547, the court of common pleas has exclusive jurisdiction over the case and any plea incident thereto. The case would thereafter proceed in the same manner as any other court case, which would include, for example, the collection of restitution, fines, and costs; the establishment of time payments; and the supervision of probation in those cases in which the magisterial district judge has accepted a guilty plea and imposed sentence.

Official Note

Rule 149 adopted June 30, 1977, effective September 1, 1977; Comment revised January 28, 1983, effective July 1, 1983; amended November 9, 1984, effective January 2, 1985; amended August 22, 1997, effective January 1, 1998; renumbered Rule 550 and amended March 1, 2000, effective April 1, 2001; amended December 9, 2005, effective February 1, 2006; amended January 6, 2014, effective March 1, 2014; Comment revised March 9, 2016, effective July 1, 2016.

Committee Explanatory Reports:

Final Report explaining the August 22, 1997 amendments, that clarify the procedures following a district justice’s acceptance of a guilty plea and imposition of sentence in a court case published with the Court’s order at 27 Pa.B. 4548 (September 6, 1997).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the December 9, 2005 changes to the rule clarifying the magisterial district judges’ exercise of jurisdiction published with the Court’s Order at 35 Pa.B. 6896 (December 24, 2005).

Final Report explaining the January 6, 2014 changes to the rule increasing the time for withdrawal of the guilty plea from 10 to 30 days published with the Court’s Order at 44 Pa.B. 478 (January 25, 2014).

Final Report explaining the March 9, 2016 Comment revision concerning the Rule 705.1 restitution procedures published with the Court’s Order at 46 Pa.B. 1540 (March 26, 2016).

The provisions of this Rule 550 amended December 9, 2005, effective February 1, 2006, 35 Pa.B. 6894; amended January 6, 2014, effective March 1, 2014, 44 Pa.B. 477; amended March 9, 2016, effective July 1, 2016, 46 Pa.B. 1532. Immediately preceding text appears at serial pages (370723) to (370725).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 551 Withdrawal of Charges Pending Before Issuing Authority. {#sec-rule-551 omnilex-key=us-pa-regs-official--title-234--Rule 551}

In any court case pending before an issuing authority, the attorney for the Commonwealth, or his or her designee, may withdraw one or more of the charges. The withdrawal shall be in writing.

This rule was amended in 1995 to make it clear that only the attorney for the Commonwealth or a designee has the authority to withdraw a prosecution.

In any case in which a summary offense is joined with the misdemeanor, felony, or murder charges:

(1) if only some of the charges are withdrawn, and the remainder are held for court, the joined summary offense, unless withdrawn, must be forwarded to the court of common pleas as required by Rule 543(F); and

(2) if all of the misdemeanor, felony, and murder charges are withdrawn pursuant to this rule, the issuing authority must dispose of the summary offense as provided in Rule 454 (Trial in Summary Cases).

Official Note

Rule 151 adopted September 18, 1973, effective January 1, 1974; amended August 14, 1995, effective January 1, 1996; renumbered Rule 551 March 1, 2000, effective April 1, 2001; amended March 9, 2006, effective September 1, 2006.

Committee Explanatory Reports:

Final Report explaining the August 14, 1995 amendments published with the Court’s Order at 25 Pa.B. 3468 (August 26, 1995).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 3, 2006 amendments to the title and rule published with the Court’s Order at 36 Pa.B. 1392 (March 25, 2006).

The provisions of this Rule 551 amended March 9, 2006, effective September 1, 2006, 36 Pa.B. 1385. Immediately preceding text appears at serial page (305481).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 555 Transfer of Proceedings. {#sec-rule-555 omnilex-key=us-pa-regs-official--title-234--Rule 555}

(A) In all cases in which charges arising from a single criminal episode occur in more than one judicial district:

(1) If the charges are filed in more than one judicial district, at any time after the case is held for court, the proceedings may be transferred to one of the judicial districts.

(2) If all the charges are filed in one judicial district, at any time after the case is held for court, the proceedings may be transferred to another one of the judicial districts.

(B) The judicial district to which the proceedings are to be transferred shall be determined either:

(1) by written agreement of the parties, filed with the clerk(s) of courts of the judicial district(s) in which the charges are pending; or

(2) by written agreement of the attorneys for the Commonwealth, filed with the clerk(s) of courts of the judicial district(s) in which the charges are pending, with service upon the defendant or defendant’s counsel, and an opportunity for the defendant to object.

(C) Upon the filing of the agreement of the parties in paragraph (B)(1), the court promptly shall order the transfer of the proceedings.

(D) Upon the filing of the agreement of the attorneys for the Commonwealth in paragraph (B)(2),

(1) absent an objection within 10 days of filing, the court promptly shall order the transfer of the proceedings.

(2) In those cases in which an objection is filed by the defendant, the court shall promptly dispose of the objection. If the objection is denied, the court immediately thereafter shall order the transfer of the proceedings.

(E) Upon the issuance of the transfer order pursuant to paragraphs (C), (D)(1), or (D)(2), the clerk(s) of courts of the transferring judicial district(s) shall promptly transmit to the clerk of courts of the judicial district to which the proceedings are being transferred a certified copy of all docket entries, together with all the original papers filed in the proceeding in the clerk’s judicial district, a copy of the bail bond and any deposits in satisfaction of a monetary condition of bail, and a bill of the costs which have accrued but have not been collected prior to the transfer.

(F) When a proceeding is transferred pursuant to this rule, the case shall proceed to trial and judgment in the same manner as if the proceeding had been instituted in the transfer judicial district.

(1) If the proceeding is transferred before an information has been filed in the transferring judicial district, the attorney for the Commonwealth in the transfer judicial district shall join the charges from the transferring judicial district with the charges in the transfer judicial district in the same information.

(2) If the proceeding is transferred after an information has been filed, the attorney for the Commonwealth in the transfer judicial district shall proceed pursuant to Rule 582 (Joinder—Trial of Separate Indictments or Informations).

(3) The results of any pretrial proceedings that have been completed in the transferring judicial district shall be binding on the transfer judicial district proceedings.

(4) Costs, not previously collected, shall be collected in the transfer judicial district.

(G) If the defendant is in custody in a transferring judicial district, the order transferring the case shall provide that the defendant shall be delivered to the custody of the sheriff of the transfer judicial district.

Rule 555 permits the transfer of proceedings in cases in which multiple charges arising from a single criminal episode have occurred in more than one judicial district so all the charges may be tried together in one judicial district.

In many cases, multiple charges arising from a single criminal episode will be known to the police officers and attorneys for the Commonwealth involved in the case, and will be joined in the first instance in one criminal complaint, and filed before one issuing authority in one judicial district. See Rule 130(A)(3). However, since there may be cases in which this does not occur, and the charges are filed in more than one judicial district, Rule 555 establishes the procedures, after such a case is held for court, for the transfer of proceedings to one judicial district. See Rule 130(B) for the procedures for transferring charges prior to the preliminary hearing. Rule 555 also governs the transfer of charges in cases in which all the charges are filed in one judicial district, but the parties or the attorneys for the Commonwealth agree that the charges should have been filed in one of the other judicial districts in which the charges occurred.

The procedures in this rule are distinct from the Rule 584 (Motion for Change of Venue or Change of Venire) procedures for a change of venue in cases in which it is determined at a hearing that a fair and impartial trial cannot be had in the county in which the case is pending.

It is expected that the parties will be able to agree on the judicial district in which the case should proceed. However, if they cannot agree, paragraph (B)(2) provides for the determination to be by the agreement of the attorneys for the Commonwealth. In determining the judicial district to which the proceedings are to be transferred, the parties must consider in which judicial district it would be in the interests of justice to have the case proceed, based upon the convenience of the defendant and the witnesses, and the prompt administration of justice.

Pursuant to paragraph (B)(2), upon the filing of the agreement of the attorneys for the Commonwealth, the defendant must be served a copy of the agreement, and be given an opportunity to object to the transfer or to the judicial district selected for the trial.

When an agreement is filed pursuant to this rule, the clerk of courts must promptly transmit the agreement as provided in Rule 576.

Pursuant to paragraphs (C) and (D), the court, immediately upon receipt of the agreement, must issue a transfer order, unless the defendant challenges the transfer or the judicial district to which the case would be transferred. ‘‘Court,’’ as used in this rule, includes the judge assigned to handle miscellaneous motions in criminal matters or the president judge, unless a judge has already been assigned to the case.

The decision to transfer a proceeding under this rule should be made at the earliest time after the case is held for court, so that most, if not all, of the pretrial proceedings can be accomplished in the transfer judicial district.

For venue between magisterial districts, see Rule 21(A).

For the procedures for the joinder of offenses in a complaint, see Rule 505.

For the procedures for the joinder of offenses in an information, see Rule 563.

For the procedures for the joinder or consolidation for trial of offenses charged in separate informations, see Rule 1127.

For the procedures for nolle prosequi, see Rule 585.

When proceedings are transferred pursuant to this rule, the case is to proceed in the same manner as if the charges had been instituted in the transfer judicial district. If any pretrial proceedings have been conducted in the transferring judicial district, the results of those proceedings will be binding on the proceedings in the transfer judicial district. For example, if discovery has been initiated, and the judge in the transferring judicial district has ordered or denied disclosure, this order would be binding on the judge and parties in the transfer judicial district. See Commonwealth v. Starr, 664 A.2d 1326 (Pa. 1995), concerning the coordinate jurisdiction rule and the law of the case doctrine.

Any costs, except bail-related costs, collected before a proceeding is transferred will remain in the transferring judicial district. See Rule 535 concerning bail-related costs.

Official Note

Former Rule 300 rescinded June 28, 1974, effective immediately; rescinded and number reserved June 29, 1977, and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; new Rule 300 adopted April 20, 2000, effective July 1, 2000; renumbered Rule 555 effective April 1, 2000; amended May 21, 2004, effective July 1, 2004.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 30 Pa.B. 2219 (May 6, 2000).

Final Report explaining the May 21, 2004 changes published with the Court’s Order at 34 Pa.B. 2911 (June 5, 2004).

The provisions of this Rule 555 adopted April 20, 2000, effective July 1, 2000, 30 Pa.B. 2211; amended May 21, 2004, effective July 1, 2004, 34 Pa.B. 2910. Immediately preceeding text appears at serial pages (266550) to (266552).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 556 Indicting Grand Jury. {#sec-rule-556 omnilex-key=us-pa-regs-official--title-234--Rule 556}

(A) Each of the several courts of common pleas may proceed with an indicting grand jury pursuant to these rules only in cases in which witness intimidation has occurred, is occurring, or is likely to occur.

(B) Any court of common pleas seeking to resume the use of indicting grand juries pursuant to these rules shall petition the Supreme Court of Pennsylvania in the following form:

(1) The petition shall identify the petitioner, who shall be either the president judge or a designee, and the judicial district. If the petition is seeking permission to resume the use of indicting grand juries in a two-county judicial district, and the indicting grand jury is sought for only one county, that county shall be identified in the petition. The president judge’s designee shall be a member of the court of common pleas of the judicial district.

(2) The petition shall aver that the petitioner has reviewed the district attorney’s certificate required under paragraphs (B)(4) and (5) and the petitioner agrees with the averments contained therein.

(3) An original and 2 copies of the petition shall be filed, and shall bear an original signature of the petitioner.

(4) There shall be appended to the petition a certificate from the district attorney for the judicial district or, in the case of a two-county judicial district, a certificate from the district attorney or district attorneys for the county or counties within the judicial district.

(5) The district attorney’s certificate shall contain:

(a) the name and county of the district attorney;

(b) an averment that witness intimidation has occurred, is occurring, or is likely to occur in the judicial district or, in the case of a two-county district where an indicting grand jury is sought for only one county, the county;

(c) An averment that the district attorney believes that an indicting grand jury will remedy the problem of witness intimidation; and

(d) the original signature of the district attorney.

This rule was adopted in 2012 to permit the use of an indicting grand jury as an alternative to the preliminary hearing but only in cases in which witness intimidation has occurred, is occurring, or is likely to occur.

The Supreme Court, by Order issued with the promulgation of the new Rules of Criminal Procedure governing the indicting grand jury, requires that each of the judicial districts must petition the Court for permission to resume using the indicting grand jury, but only as provided in these rules. By further Order of the Supreme Court, the form and contents of the petition were established. See 43 Pa.B. 1706 (March 30, 2013). This rule was amended in 2015 to include the form and contents of the petition required to resume indicting grand juries as established by the Court’s Order.

The rules in Chapter 5 Part E apply only to the indicting grand jury and do not apply to any county, regional, or statewide investigating grand jury.

Official Note

New Rule 556 adopted June 21, 2012, effective in 180 days; amended September 8, 2015, effective November 1, 2015.

Committee Explanatory Reports:

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

Final Report explaining the September 8, 2015 amendment regarding the content of the petition to resume using indicting grand juries published with the Court’s Order at 45 Pa.B. 5786 (September 26, 2015).

The provision of this Rule 556 adopted June 21, 2012, effective in 180 days, 42 Pa.B. 4140; amended September 8, 2015, effective November 1, 2015, 45 Pa.B. 5785. Immediately preceding text appears at serial page (361838).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 556.1 Summoning Panels of Grand Jurors. {#sec-rule-556.1 omnilex-key=us-pa-regs-official--title-234--Rule 556.1}

(A) When the court of common pleas elects to proceed with an indicting grand jury, the president judge, or president judge’s designee, shall order one or more grand juries to be summoned for the purpose of issuing indictments or shall order that the sitting investigating grand jury shall sit as the indicting grand jury.

(B) The judge shall order the officials designated by law to summon prospective jurors to summon such number of jurors who are eligible by law as the judge deems necessary to serve as a panel for grand jury service.

(C) The summons shall be made returnable on such date as is ordered by the court.

Pursuant to paragraph (A), the president judge, or president judge’s designee, may order that an investigating grand jury that is sitting will also serve in the capacity of the indicting grand jury.

The number of persons who may be summoned is left to the discretion of the president judge or the president judge’s designee to accommodate the needs of the judicial district.

The qualification, selection, and summoning of prospective jurors, as well as related matters, are generally dealt with in 42 Pa.C.S. § § 4501—4503, 4521—4527, and 4531—4532.

Official Note

New Rule 556.1 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 556.1 adopted June 21, 2012, effective in 180 days, 42 Pa.B. 4140.

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 556.2 Proceeding by Indicting Grand Jury Without Preliminary Hearing. {#sec-rule-556.2 omnilex-key=us-pa-regs-official--title-234--Rule 556.2}

(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.

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.

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 556.3 Composition and Organization of the Indicting Grand Jury. {#sec-rule-556.3 omnilex-key=us-pa-regs-official--title-234--Rule 556.3}

(A) There initially shall be impaneled to serve on an indicting grand jury 23 legally qualified jurors and a minimum of 7 and not more than 15 legally qualified alternates. During its term, the indicting grand jury shall consist, as provided hereinafter, of not less than 15 nor more than 23 legally qualified jurors, and the remaining alternates.

(B) When an indicting grand jury is to be impaneled, the supervising judge in charge of the grand jury shall examine prospective jurors to determine which prospective jurors to excuse for cause. After prospective grand jurors have been excused for cause, the reduction to the minimum of 30 or maximum of 38 shall take place by random drawing in the following manner: 30 to 38 jurors shall be selected by random drawing, of which the first 23 jurors so selected shall be designated permanent grand jurors and the next 7 to 15 jurors shall be designated alternate jurors. Alternate jurors shall replace permanent jurors in the sequence in which the alternate jurors are selected.

(C) Alternate jurors shall attend and participate in sessions of the grand jury but they may not attend or participate in the deliberations and voting until such time as they may be appointed as permanent grand jurors as provided in paragraph (D).

(D) The court shall have the power to permanently excuse a permanent or alternate grand juror for cause at any time during the term of the indicting grand jury. For each such excused permanent grand juror, the court shall appoint a new permanent grand juror from among the available alternates.

(E) Fifteen permanent members of the grand jury shall constitute a quorum, but an affirmative vote of 12 permanent members of the grand jury shall be required to indict.

(F) Whenever the number of permanent grand jurors, including alternates who have been appointed to replace permanent grand jurors, becomes less than 15, the term of the indicting grand jury shall be considered at an end.

(G) The supervising judge shall appoint one of the grand jurors as foreperson and another juror as the deputy foreperson, who will act in the foreperson’s absence. The grand jury shall select one of its members as a secretary to assist the foreperson in keeping a record of the action of the grand jury.

To accommodate the possibility that a grand jury would serve the dual function of both an investigating and indicting grand jury, see Rule 556.1(A), the procedures in this rule comport to the procedures in Rule 222 (Composition and Organization of the Investigating Grand Jury).

The term ‘‘permanent grand juror’’ is used to distinguish grand jurors with the power to vote from alternate grand jurors. The purpose of providing a built-in system of alternates is to ensure the smooth functioning of the grand jury throughout its term and to provide that alternates, when made permanent grand jurors, will be fully cognizant of all the proceedings before the grand jury.

It is intended that no alternate may be appointed as a temporary substitute for a permanent grand juror, and that the court will excuse permanent grand jurors only when necessary and in the interests of justice. However, whenever a permanent juror is excused for cause and an alternate is available to become a permanent grand juror, the court must substitute an alternate for the excused permanent grand juror. It is intended that such substitution be made in the order of the alternate jurors’ numerical designation.

Official Note

New Rule 556.3 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 556.3 adopted June 21, 2012, effective In 180 days, 42 Pa.B. 4140.

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 556.4 Challenges to Grand Jury and Grand Jurors. {#sec-rule-556.4 omnilex-key=us-pa-regs-official--title-234--Rule 556.4}

(A) Challenges

The attorney for the Commonwealth or a defendant may challenge the grand jury on the ground that it was not lawfully drawn, summoned, or selected, and may challenge an individual juror on the ground that the juror is not legally qualified.

(1) The challenge shall be in the form of a written motion and shall allege the ground upon which the challenge is made.

(2) If a challenge to an individual grand juror is sustained, the juror shall be discharged and replaced with an alternate juror.

(B) Motion to Dismiss

(1) The attorney for the Commonwealth or a defendant may move to dismiss the information filed following the grand jury’s vote to indict the defendant based on the following grounds:

(a) an objection to the grand jury or on an individual juror’s lack of legal qualification, unless the court has previously ruled on the same objection under paragraph (A);

(b) the evidence did not establish a prima facie case that an offense has been committed and the defendant committed the offense;

(c) lack of jurisdiction of the grand jury; or

(d) expiration of the statute of limitations.

(2) The judge shall not dismiss the information on the ground that a grand juror was not legally qualified if the record shows that at least 12 qualified jurors concurred in the indictment.

(C) Any motion under paragraph (A) or paragraph (B) shall be made as part of the omnibus pretrial motion.

Concerning the right to challenge the array of the grand jury, see Commonwealth v. Dessus, 423 Pa. 177, 188, 224 A.2d 188, 194 (1966), in which the Court held, inter alia, that ‘‘the law . . . must not deprive an accused of any of his legal or Constitutional rights-in this case the right to promptly (a) challenge the array of the grand jury and (b) prove by legally competent evidence that one or more of the grand jurors should be disqualified for cause.’’

Nothing in this rule is intended to limit the availability of habeas corpus review as provided by law.

Nothing in this rule is intended to require notice to the defendant of the time and place of the impaneling of a grand jury, or to give the defendant the right to be present for the selection of the grand jury.

Official Note

New Rule 556.4 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 556.4 adopted June 21, 2012, effective in 180 days, 42 Pa.B. 4140.

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 556.5 Duration of Indicting Grand Jury. {#sec-rule-556.5 omnilex-key=us-pa-regs-official--title-234--Rule 556.5}

(A) The length of the grand jury term shall be determined by the president judge, or the president judge’s designee, but shall not exceed 18 months, unless an order for discharge is entered earlier by the supervising judge upon determination by the grand jury, by majority vote, that its business has been completed, or an extension is granted pursuant to paragraph (B).

(B) At the end of its original term or any extension thereof, if the grand jury determines by majority vote that it has not completed its business, it may request the supervising judge to extend its term for an additional period of 6 months. No grand jury term shall exceed 24 months from the time the grand jury was originally summoned.

(1) The supervising judge shall grant a request for extension unless the judge determines that such request clearly is without basis.

(2) Failure to grant an extension of term under this rule may be appealed by the attorney for the Commonwealth to the Supreme Court in the manner prescribed by general rule.

(3) If an appeal is taken, the grand jury shall continue to exercise its powers pending the disposition of the appeal.

(C) At any time within the original term of a grand jury, or any extension thereof, if the supervising judge determines that the grand jury is not conducting proper indicting activity, the judge may order that the grand jury be discharged.

(1) An order of discharge under this rule shall not become effective less than 10 days after the date on which the order is issued and actual notice given to the attorney for the Commonwealth and the foreperson of the grand jury.

(2) The order may be appealed by the attorney for the Commonwealth to the Supreme Court in the manner prescribed by general rule.

(3) If an appeal is taken, the grand jury shall continue to exercise its powers pending the disposition of the appeal.

The procedures governing the duration of the indicting grand jury are consistent with the procedures for investigating grand juries as set forth in 42 Pa.C.S. § 4546.

Official Note

New Rule 556.5 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 556.5 adopted June 21, 2012, effective in 180 days, 42 Pa.B. 4140.

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 556.6 Administering Oath to Grand Jury and Foreperson. {#sec-rule-556.6 omnilex-key=us-pa-regs-official--title-234--Rule 556.6}

(A) After the selection of the members of the grand jury, the supervising judge shall administer the oath separately to the foreperson and deputy foreperson and then to the other grand jurors. The supervising judge shall then charge the grand jury concerning its duties.

(B) The supervising judge shall administer the oath to the grand jury in substantially the following form:

‘‘You, as grand jurors, do solemnly swear that you will make diligent inquiry with regard to all matters brought before you as well as such things as may come to your knowledge in the course of your duties; that you will keep secret all that transpires in the jury room except as authorized by law; that you will neither approve any indictment or present any person for hatred, envy or malice, or refuse to approve any indictment or present any person for love, fear, favor, or any reward or hope thereof; and that you will present all things truly to the court as they come to your knowledge and understanding.’’

(C) The supervising judge shall administer the oath to the foreperson and deputy foreperson in substantially the following form:

‘‘You, as foreperson, do solemnly swear that you will make diligent inquiry with regard to all matters as shall be given you in charge; that you will keep secret all that transpires in the jury room, except as authorized by law; that you will neither approve any indictment or present any person for hatred, envy or malice, or refuse to approve any indictment or present any person for love, fear, favor, or any reward or hope thereof; and that you will present all things truly to the court as they come to your knowledge and understanding.’’

It is intended that all grand jurors, including alternate grand jurors, will be sworn at this time.

Official Note

New Rule 556.6 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 556.6 adopted June 21, 2012, effective in 180 days, 42 Pa.B. 4140.

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 556.7 Administration of Oath to Witnesses; Court Personnel. {#sec-rule-556.7 omnilex-key=us-pa-regs-official--title-234--Rule 556.7}

(A) Each witness to be heard by the indicting grand jury shall be sworn by the foreperson before testifying.

(B) All court personnel who are to be present during any portion of the grand jury proceedings, and all others who assist in the proceedings, shall be sworn to secrecy by the supervising judge prior to their participation.

When it is necessary to give constitutional warnings to a witness, the warnings and the oath must be administered by the supervising judge. As to warnings that the court may have to give to the witness when the witness is sworn, see, e.g., Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764 (1971).

Official Note

New Rule 556.7 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 556.7 adopted June 21, 2012, effective in 180 days, 42 Pa.B. 4140.

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 556.8 Recording of Testimony Before Indicting Grand Jury. {#sec-rule-556.8 omnilex-key=us-pa-regs-official--title-234--Rule 556.8}

(A) Proceedings before an indicting grand jury, other than the deliberations and voting of the grand jury, shall be recorded by a court reporter or by a suitable recording device, and a transcript made.

(B) The supervising judge shall retain control of the recording device and the original and all copies of the transcript, and shall maintain their secrecy.

(C) When physical evidence is presented before the indicting grand jury, the supervising judge shall establish procedures for supervising custody.

This rule requires that the supervising judge retain control over the transcript of the indicting grand jury proceedings and all copies thereof, as the record is transcribed, until such time as the transcript is released as provided in these rules.

Official Note

New Rule 556.8 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 556.8 adopted June 21, 2012, effective in 180 days, 42 Pa.B. 4140.

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 556.9 Who May Be Present During Sessions of Indicting Grand Jury. {#sec-rule-556.9 omnilex-key=us-pa-regs-official--title-234--Rule 556.9}

(A) The attorney for the Commonwealth, the alternate grand jurors, the witness under examination, and a stenographer may be present while the indicting grand jury is in session. Counsel for the witness under examination may be present as provided by law.

(B) The supervising judge, upon the request of the attorney for the Commonwealth or the grand jury, may order that an interpreter, security officers, and such other persons as the judge may determine are necessary to the presentation of the evidence may be present while the indicting grand jury is in session.

(C) All persons who are to be present while the indicting grand jury is in session shall be identified in the record, shall be sworn to secrecy as provided in these rules, and shall not disclose any information pertaining to the grand jury except as provided by law.

(D) No person other than the permanent grand jurors may be present during the deliberations or voting of the grand jury.

It is intended in paragraph (B) that when the supervising judge authorizes a certain individual to be present during a session of the indicting grand jury, the person may remain in the grand jury room only as long as is necessary for that person to assist the grand jurors.

See also Rule 556.10 concerning secrecy and disclosure of indicting grand jury proceedings.

Nothing in these rules precludes the supervising judge from permitting a witness to testify using two-way simultaneous audio-visual communication.

Official Note

New Rule 556.9 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 556.9 adopted June 21, 2012, effective in 180 days, 42 Pa.B. 4140.

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 556.10 Secrecy; Disclosure. {#sec-rule-556.10 omnilex-key=us-pa-regs-official--title-234--Rule 556.10}

(A) Secrecy

(1) All evidence, including exhibits and all testimony presented to the grand jury, is subject to grand jury secrecy, and no person may disclose any matter occurring before the grand jury, except as provided in paragraph (B).

(2) A violation of grand jury secrecy rules may be punished as a contempt of court.

(B) Disclosure

No person may disclose any matter occurring before the grand jury, except as provided below.

(1) Attorney for the Commonwealth:

Upon receipt of the certified transcript of the proceedings before the indicting grand jury, the supervising judge shall furnish a copy of the transcript to the attorney for the Commonwealth for use in the performance of official duties.

(2) Defendant in a Criminal Case:

If a defendant in a criminal case has testified before the indicting grand jury concerning the subject matter of the charges against him or her, upon application of such defendant, the supervising judge shall order that the defendant be furnished with a copy of the transcript of such testimony.

(3) Witnesses:

(a) A grand jury witness may disclose his or her testimony unless the attorney for the Commonwealth obtains an order from the supervising judge that the interests of justice dictate otherwise.

(b) The attorney for the Commonwealth may request that the supervising judge delay the disclosure of a grand jury witness’ testimony, but such delay in disclosure shall not be later than the conclusion of direct testimony of that witness at trial.

(4) Other Disclosures:

(a) Disclosure of grand jury material or matters, other than the grand jury’s deliberations and the vote of individual jurors, may be made to any law enforcement personnel that an attorney for the Commonwealth considers necessary to assist in the enforcement of the criminal law.

(b) Upon motion, and after a hearing into relevancy, the supervising judge may order that a transcript of testimony before an indicting grand jury, or physical evidence before the indicting grand jury, may be released to an investigative agency under such conditions as the supervising judge may impose.

(5) Pretrial Discovery:

Pretrial discovery in cases indicted by a grand jury is subject to Rule 573. Pretrial discovery does not include testimony or other evidence that would disclose the identity of any witness or victim who has been intimidated, is being intimidated, or who is likely to be intimidated. Disclosure of such testimony or other evidence shall be only as ordered by the supervising judge.

(C) The supervising judge shall close to the public any hearing relating to grand jury proceedings to the extent necessary to prevent disclosure of a matter occurring before a grand jury. Records, orders, and subpoenas relating to grand jury proceedings shall be kept under seal to prevent the unauthorized disclosure of a matter occurring before a grand jury.

The attorney for the Commonwealth has an affirmative duty to provide the defendant with any testimony before the indicting grand jury and any physical evidence presented to the grand jury that is exculpatory to the defendant consistent with the line of cases beginning with Brady v. Maryland, 373 U.S. 83 (1963), and the refinements of the Brady standards embodied in subsequent judicial decisions.

Paragraph (B) establishes the limitations on pretrial discovery in cases in which a defendant has been indicted by a grand jury information. Although the Criminal Rules generally recognize the defendant’s right to have pretrial discovery to be able to prepare his or her case, given the nature of the cases presented to the grand jury, see Rule 556, this rule places with the supervising judge the responsibility of determining when testimony and other evidence that would disclose the identity of any witness or victim who has been intimidated, is being intimidated, or who is likely to be intimidated will be discoverable.

Paragraph (B)(3)(b) permits the supervising judge to delay the time for the disclosure of a grand jury witness’ testimony upon the request of the attorney for the Commonwealth. Under no circumstances may the extension be later than the completion of the witness’ direct testimony at trial.

The supervising judge may grant a continuance to enable the defendant to review the grand jury testimony as the interests of justice require.

Official Note

New Rule 556.10 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 556.10 adopted June 21, 2012, effective in 180 days, 42 Pa.B. 4140.

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 556.11 Proceedings When Case Presented to Grand Jury. {#sec-rule-556.11 omnilex-key=us-pa-regs-official--title-234--Rule 556.11}

(A) A grand jury has the authority to:

(1) inquire into violations of criminal law through subpoenaing witnesses and documents; and

(2) based upon evidence it has received, including hearsay evidence as permitted by law, or upon a presentment issued by an investigating grand jury, if the grand jury finds the evidence establishes a prima facie case that (1) an offense has been committed and (2) the defendant has committed it, indict defendant for an offense under the criminal laws of the Commonwealth of Pennsylvania; or

(3) based upon evidence it has received, including hearsay evidence as permitted by law, or upon a presentment issued by an investigating grand jury, if the grand jury finds the evidence establishes a prima facie case that (1) an offense has been committed and (2) the person other than the defendant in the matter originally presented to the indicting grand jury has committed it, indict the individual for an offense under the criminal laws of the Commonwealth of Pennsylvania, but only if the offense arises from the same criminal conduct or episode that gave rise to the original referral to the indicting grand jury; or

(4) decline to indict.

(B) After a grand jury has considered the evidence presented, the grand jury shall vote whether to indict the defendant or the person other than the defendant who has been identified as having committed an offense as provided in paragraph (A)(3). The affirmative vote of at least 12 grand jurors is required to indict.

(C) In cases in which the grand jury votes to indict, an indictment shall be prepared setting forth the offenses on which the grand jury has voted to indict. The indictment shall be signed by the grand jury foreperson, or deputy foreperson if the foreperson is unavailable, and returned to the supervising judge.

(D) Upon receipt of the indictment, the supervising judge shall:

(1) provide a copy of the indictment to the Commonwealth authorizing the attorney to prepare an information pursuant to Rule 560; and

(2) forward the indictment to the clerk of courts.

(E) If the subject of the indictment has not been arrested on the charges contained in the indictment, upon receipt of a copy of the indictment, the attorney for the Commonwealth shall file a complaint with the clerk of courts of the judicial district in which the indicting grand jury sits, and shall request the supervising judge issue an arrest warrant.

(1) The indictment shall be used in lieu of the affidavit of probable cause.

(2) The supervising judge shall issue an arrest warrant.

(F) At the request of the attorney for the Commonwealth, the supervising judge shall order the indictment to be sealed.

(G) In cases in which the grand jury does not vote to indict, the foreperson promptly and in writing shall so report to the supervising judge who immediately shall dismiss the complaint and shall notify the clerk of courts of the dismissal.

Nothing in this rule is intended to preclude the investigating grand jury, when sitting as an indicting grand jury and as part of its determination of whether to indict, from considering evidence already presented to it during an investigation.

When the grand jury votes to indict the defendant, the vote to indict is the functional equivalent of holding the defendant for court following a preliminary hearing. In these cases, the matter will proceed in the same manner as when the defendant is held for court following a preliminary hearing. See, e.g., Rules 547 and 560.

The indictment required by paragraph (C) no longer serves the traditional function of an indictment, but rather serves as an instrument authorizing the attorney for the Commonwealth to file an information. See Rule 103.

Concerning hearsay evidence before the indicting grand jury, see Commonwealth v. Dessus, 224 A.2d 188 (Pa. 1966).

This rule was amended in 2018 to clarify that a person who has not been previously charged may be indicted. A case must be properly before the grand jury as provided in Rule 556.2. If during the course of that grand jury proceeding, it is determined that a prima facie case exists that an offense has been committed by an individual who is not the defendant in the case that was originally presented to the indicting grand jury, that individual may be indicted. However, the offense for which this new defendant has been indicted must be related to the same criminal conduct or episode that originally resulted in the case being referred to the indicting grand jury. Thereafter, the attorney for the Commonwealth must file a complaint and a request that an arrest warrant be issued as provided in paragraph (E). The filing of this complaint marks the beginning of the time period for speedy trial under Rule 600. See Rule 556.13 for the procedures following the execution of an arrest warrant issued following indictment.

In cases in which the grand jury has declined to indict and the complaint has been dismissed, the attorney for the Commonwealth may reinstitute the charges as provided in Rule 544.

Official Note

New Rule 556.11 adopted June 21, 2012, effective in 180 days; amended November 27, 2018, effective March 1, 2019.

Committee Explanatory Reports:

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

Final Report explaining the November 27, 2018 amendment regarding the issuance of indictment of non-defendants published with the Court’s Order at 48 Pa.B. 7632 (December 15, 2018).

The provisions of this Rule 556.11 adopted June 21, 2012, effective in 180 days, 42 Pa.B. 4140; amended November 27, 2018, effective March 1, 2019, 48 Pa.B. 7626. Immediately preceding text appears at serial pages (361847) to (361848).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 556.12 Waiver of Grand Jury Action. {#sec-rule-556.12 omnilex-key=us-pa-regs-official--title-234--Rule 556.12}

(A) A defendant, with the consent of the attorney for the Commonwealth and the approval of the supervising judge, may waive action by the grand jury and consent to be bound over to court. If the defendant is represented by counsel,

(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 action of the grand jury 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 waiver shall be in writing and signed by the defendant and defense attorney, if any, and shall certify that:

(1) the defendant voluntarily waives the grand jury action and consents to be bound over to court, and

(2) when represented by counsel, the defendant understands that by waiving action by grand jury, he or she is thereafter precluded from raising challenges to the sufficiency of the prima facie case.

Nothing in this rule is intended to preclude a waiver of action by the grand jury 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.

Official Note

New Rule 556.12 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 556.12 adopted June 21, 2012, effective in 180 days, 42 Pa.B. 4140.

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 556.13 Procedures Following Execution of Warrant of Arrest Issued Following Indictment. {#sec-rule-556.13 omnilex-key=us-pa-regs-official--title-234--Rule 556.13}

(A) When a defendant has been arrested within the judicial district where the warrant of arrest has been issued by the supervising judge of an indicting grand jury following the receipt of the indictment as provided in Rule 556.11(E), the defendant shall be afforded a preliminary arraignment by the supervising judge or another judge designated by the president judge without unnecessary delay.

(B) When a defendant has been arrested outside of the judicial district where the warrant of arrest has been issued by the supervising judge of an indicting grand jury following the receipt of the indictment as provided in Rule 556.11(E), the case shall proceed as provided in Rules 517 and 518 and this rule.

(C) Following the preliminary arraignment provided pursuant to paragraph (A) and (B), the case shall proceed in the court of common pleas pursuant to Rules 560 and 571.

This rule provides the procedures following the arrest of a defendant pursuant to a warrant issued by the supervising judge of an indicting grand jury. The defendant must be provided a preliminary arraignment in a timely manner following arrest. Because a case that had been submitted to the indicting grand jury is transferred to the court of common pleas, the preliminary arraignment must be held before the supervising judge or another judge of the common pleas designated by the president judge.

An indictment by a grand jury is a prima facie determination made in lieu of a preliminary hearing in cases where witness intimidation has occurred, is occurring, or will occur. Therefore, following indictment, the case is in the same status as a case that has been held for court. The next steps following the preliminary arraignment in these situations would be the filing of the criminal information as provided in Rule 560 and the arraignment as provided in Rule 571.

Official Note

New Rule 556.13 adopted November 27, 2018, effective March 1, 2019.

Committee Explanatory Reports:

Final Report explaining new Rule 556.13 providing procedures following the execution of arrest warrants issued by the supervising judge of an investigating grand jury published with the Court’s Order at 48 Pa.B. 7632 (December 15, 2018).

The provisions of this Rule 556.13 adopted November 27, 2018, effective March 1, 2019, 48 Pa.B. 7626.

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 559 Request for Bench Warrant. {#sec-rule-559 omnilex-key=us-pa-regs-official--title-234--Rule 559}

In any case held for court following a preliminary hearing conducted in the defendant’s absence pursuant to Rule 543(D), upon receipt of a request by the issuing authority for the common pleas court to issue a bench warrant, the court promptly shall act upon the request.

For the requirement that the issuing authority request a bench warrant from the court of common pleas in cases in which the defendant has failed to appear for the preliminary hearing, see Rule 543(D)(3)(b)(i) and (ii). See also Rule 547(C)(5) that requires the issuing authority to transmit the request for a bench warrant with the transcript of the proceedings before the issuing authority.

Official Note

Adopted May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007.

Committee Explanatory Reports:

Final Report explaining new Rule 559 published with the Court’s Order at 37 Pa.B. 2503 (June 2, 2007).

The provisions of this Rule 559 adopted May 1, 2007, effective September 4, 2007, 37 Pa.B. 2496.

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 560 Information: Filing, Contents, Function. {#sec-rule-560 omnilex-key=us-pa-regs-official--title-234--Rule 560}

(A) After the defendant has been held for court following a preliminary hearing or an indictment, the attorney for the Commonwealth shall proceed by preparing an information and filing it with the court of common pleas.

(B) The information shall be signed by the attorney for the Commonwealth and shall be valid and sufficient in law if it contains:

(1) a caption showing that the prosecution is carried on in the name of and by the authority of the Commonwealth of Pennsylvania;

(2) the name of the defendant, or if the defendant is unknown, a description of the defendant as nearly as may be;

(3) the date when the offense is alleged to have been committed if the precise date is known, and the day of the week if it is an essential element of the offense charged, provided that if the precise date is not known or if the offense is a continuing one, an allegation that it was committed on or about any date within the period fixed by the statute of limitations shall be sufficient;

(4) the county where the offense is alleged to have been committed;

(5) a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint;

(6) a concluding statement that ‘‘all of which is against the Act of Assembly and the peace and dignity of the Commonwealth’’; and

(7) a certification that the information complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania regarding confidential information and documents.

(C) The information shall contain the official or customary citation of the statute and section thereof, or other provision of law that the defendant is alleged therein to have violated; but the omission of or error in such citation shall not affect the validity or sufficiency of the information.

(D) In all court cases tried on an information, the issues at trial shall be defined by such information.

The attorney for the Commonwealth may electronically prepare, sign, and transmit the information for filing.

Before an information is filed, the attorney for the Commonwealth may withdraw one or more of the charges by filing a notice of withdrawal with the clerk of courts. See Rule 561(A). Upon the filing of an information, any charge not listed on the information will be deemed withdrawn by the attorney for the Commonwealth. See Rule 561(B). After the information is filed, court approval is required before a nolle prosequi may be entered on a charge listed therein. See Rule 585.

In any case in which there are summary offenses joined with the misdemeanor, felony, or murder charges that are held for court, the attorney for the Commonwealth must include the summary offenses in the information. See Commonwealth v. Hoffman, 594 A.2d 772 (Pa. Super. 1991).

See Rule 113.1 regarding the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania and the requirements regarding filings and documents that contain confidential information.

When there is an omission or error of the type referred to in paragraph (C), the information should be amended pursuant to Rule 564.

See Rule 543(D) for the procedures when a defendant fails to appear for the preliminary hearing. When the preliminary hearing is held in the defendant’s absence and the case is held for court, the attorney for the Commonwealth should proceed as provided in this rule.

See Chapter 5 Part E for the procedures governing indicting grand juries. As explained in the Comment to Rule 556.11, when the grand jury indicts the defendant, this is the functional equivalent to holding the defendant for court following a preliminary hearing.

Official Note

Rule 225 adopted February 15, 1974, effective immediately; Comment revised January 28, 1983, effective July 1, 1983; amended August 14, 1995, effective January 1, 1996; renumbered Rule 560 and amended March 1, 2000, effective April 1, 2001; Comment revised April 23, 2004, effective immediately; Comment revised August 24, 2004, effective August 1, 2005; Comment revised March 9, 2006, effective September 1, 2006; amended June 21, 2012, effective in 180 days; amended January 5, 2018, effective January 6, 2018; amended June 1, 2018, effective July 1, 2018.

Committee Explanatory Reports:

Final Report explaining the August 14, 1995 amendments published with the Court’s Order at 25 Pa.B. 3468 (August 26, 1995).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the April 23, 2004 Comment revision published with the Court’s Order at 34 Pa.B. 2543 (May 15, 2004).

Final Report explaining the August 24, 2004 Comment revision concerning failure to appear for preliminary hearing published with the Court’s Order at 34 Pa.B. 5025 (September 11, 2004).

Final Report explaining the March 9, 2006 Comment revision concerning joinder of summary offenses with misdemeanor, felony, or murder charges published with the Court’s Order at 36 Pa.B. 1392 (March 25, 2006).

Final Report explaining the June 21, 2012 amendments to paragraph (A) concerning indicting grand juries published with the Court’s Order at 42 Pa.B. 4153 (July 7, 2012).

Final Report explaining the January 5, 2018 amendment regarding the Court’s public access policy published with the Court’s Order at 48 Pa.B. 490 (January 20, 2018).

Amendment regarding the Court’s public access policy published with the Court’s Order at 48 Pa.B. 3575 (June 16, 2018).

The provisions of this Rule 560 amended April 23, 2004, effective immediately, 34 Pa.B. 2543; amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended March 9, 2006, effective September 1, 2006, 36 Pa.B. 1385; amended June 21, 2012, effective in 180 days, 42 Pa.B. 4140; amended January 5, 2018, effective January 6, 2018, 48 Pa.B. 487; amended June 1, 2018, effective July 1, 2018, 48 Pa.B. 3575. Immediately preceding text appears at serial pages (390252) to (390253).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 561 Withdrawal of Charges by Attorney for the Commonwealth. {#sec-rule-561 omnilex-key=us-pa-regs-official--title-234--Rule 561}

(A) After a case is held for court, at any time before the information is filed, the attorney for the Commonwealth may withdraw one or more charges by filing notice with the clerk of courts.

(B) Upon the filing of the information, any charge not listed on the information shall be deemed withdrawn by the attorney for the Commonwealth.

(C) In any case in which all the misdemeanor, felony, and murder charges are withdrawn pursuant to this rule, any remaining summary offenses shall be disposed of in the court of common pleas.

Court approval is not required for the withdrawal of charges prior to the filing of an information. Cf. 42 Pa.C.S. § 8932 and Rule 585 (Nolle Prosequi).

Official Note

Former Rule 224 adopted November 22, 1971, effective immediately; amended February 15, 1974, effective immediately; amended April 26, 1979, effective July 1, 1979; rescinded August 12, 1993, effective September 1, 1993. New Rule 224 adopted August 14, 1995, effective January 1, 1996; renumbered Rule 561 and amended March 1, 2000, effective April 1, 2001; amended February 12, 2010, effective April 1, 2010.

Committee Explanatory Reports:

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

Final Report explaining the August 14, 1995 amendments published with the Court’s Order at 25 Pa.B. 3468 (August 26, 1995).

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 (C) concerning disposition of summary offenses at the court of common pleas published at 40 Pa.B. 1068 (February 27, 2010).

The provisions of this Rule 561 amended February 12, 2010, effective April 1, 2010, 40 Pa.B. 1068. Immediately preceding text appears at serial pages (328097) to (328098).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 562 Copy of Information to be Furnished Defendant. {#sec-rule-562 omnilex-key=us-pa-regs-official--title-234--Rule 562}

The clerk of courts shall, upon request, furnish each defendant against whom an information or informations have been filed with a copy of the information or informations filed against the defendant.

Official Note

Rule 227 adopted February 15, 1974, effective immediately; renumbered Rule 562 and amended March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 563 Joinder of Offenses in Information. {#sec-rule-563 omnilex-key=us-pa-regs-official--title-234--Rule 563}

(A) Two or more offenses, of any grade, may be charged in the same information if:

(1) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or

(2) the offenses charged are based on the same act or transaction.

(B) There shall be a separate count for each offense charged.

Under these rules, it is assumed that offenses charged in the same information will be tried together, unless the court orders separate trials. For joint trial of offenses or defendants charged in separate informations, see Rule 582. For severance of offenses or defendants, see Rule 583.

Official Note

Rule 228 adopted February 15, 1974, effective immediately; amended December 11, 1981, effective July 1, 1982; amended August 14, 1995, effective January 1, 1996; renumbered Rule 563 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the August 14, 1995 changes published with the Court’s Order at 25 Pa.B. 3471 (August 26, 1995).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 564 Amendment of Information. {#sec-rule-564 omnilex-key=us-pa-regs-official--title-234--Rule 564}

The court may allow an information to be amended, provided that the information as amended does not charge offenses arising from a different set of events and that the amended charges are not so materially different from the original charge that the defendant would be unfairly prejudiced. Upon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

The rule was amended in 2016 to more accurately reflect the interpretation of this rule that has developed since it first was adopted in 1974. See Commonwealth v. Brown, 727 A.2d 541 (Pa. 1999). See also Commonwealth v. Beck, 78 A.3d. 656 (Pa. Super. 2013); Commonwealth v. Page, 965 A.2d 1212 (Pa. Super. 2009); Commonwealth v. Sinclair, 897 A.2d 1218 (Pa. Super. 2006).

Official Note

Rule 229 adopted February 15, 1974, effective immediately; renumbered Rule 564 and amended March 1, 2000, effective April 1, 2001; amended December 21, 2016, effective December 21, 2017.

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. 1478 (March 18, 2000).

Final Report explaining the December 21, 2016 amendment regarding the standard for amendment published with the Court’s Order at 47 Pa.B. 186 (January 14, 2017).

The provisions of this Rule 564 amended December 21, 2016, effective December 21, 2017, 46 Pa.B. 185. Immediately preceding text published at serial page (361853).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 565 Presentation of Information Without Preliminary Hearing. {#sec-rule-565 omnilex-key=us-pa-regs-official--title-234--Rule 565}

(A) When the attorney for the Commonwealth certifies to the court of common pleas that a preliminary hearing cannot be held for a defendant for good cause, the court may grant leave to the attorney for the Commonwealth to file an information with the court without a preliminary hearing.

(B) When a juvenile has been transferred for prosecution as an adult, the attorney for the Commonwealth may file an information with the court without a preliminary hearing.

The prior language of the rule, authorizing the attorney for the Commonwealth, with the permission of the court, to bypass the preliminary hearing to toll the statute of limitations or to extradite a defendant, was deleted in 1993 in light of changes in the law simplifying the process for obtaining custody of the defendant. It is intended that use of the bypass procedure as set forth in paragraph (A) will be limited to exceptional circumstances only.

Under the Rules of Juvenile Court Procedure and the Juvenile Act, a juvenile is entitled to substantially the same rights at a transfer hearing as a defendant would be at a preliminary hearing. See Rules of Juvenile Court Procedure 394 and 395 and Juvenile Act, 42 Pa.C.S. § 6355. Therefore, to avoid duplicative proceedings, this rule permits the attorney for the Commonwealth to bypass the preliminary hearing when a juvenile has been transferred for prosecution as an adult.

Nothing in this rule is intended to preclude the attorney for the Commonwealth from filing an information or from having the date for the arraignment scheduled in those cases in which the issuing authority has conducted the preliminary hearing in the defendant’s absence as provided in Rule 543(D).

Official Note

Rule 231 adopted February 15, 1974, effective immediately; amended April 26, 1979, effective July 1, 1979; amended August 12, 1993, effective September 1, 1993; renumbered Rule 565 and amended March 1, 2000, effective April 1, 2001; Comment revised August 24, 2004, effective August 1, 2005; Comment revised April 1, 2005, effective October 1, 2005.

Committee Explanatory Reports:

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

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the August 24, 2004 Comment revision concerning preliminary hearing in defendant’s absence published with the Court’s Order at 34 Pa.B. 5025 (September 11, 2004).

Final Report explaining the April 1, 2005 Comment revision concerning Rules of Juvenile Court Procedure published with the Court’s Order at 35 Pa.B. 2213 (April 16, 2005).

The provisions of this Rule 565 amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended April 1, 2005, effective October 1, 2005, 35 Pa.B. 2210. Immediately preceeding text published at serial page (305487).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 566 Application of Indictment Statutes to Information. {#sec-rule-566 omnilex-key=us-pa-regs-official--title-234--Rule 566}

The term ‘‘indictment’’ in any statute shall be construed to include the term ‘‘information’’ unless the purpose of the statute manifestly relates only to indictment by grand jury.

For the definition of ‘‘information,’’ see Rule 103.

See also Section 8931(g) and (h) of the Judicial Code, 42 Pa.C.S. § 8931(g), (h).

Official Note

Rule 232 adopted February 15, 1974, effective immediately; Comment revised August 12, 1993, effective September 1, 1993; renumbered Rule 566 and Comment revised March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

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

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).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 567 Notice of Alibi Defense. {#sec-rule-567 omnilex-key=us-pa-regs-official--title-234--Rule 567}

(A) NOTICE BY DEFENDANT

A defendant who intends to offer the defense of alibi at trial shall file with the clerk of courts not later than the time required for filing the omnibus pretrial motion provided in Rule 579 a notice specifying an intention to offer an alibi defense, and shall serve a copy of the notice and a certificate of service on the attorney for the Commonwealth.

(1) The notice and a certificate of service shall be signed by the attorney for the defendant, or the defendant if unrepresented.

(2) The notice shall contain specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses whom the defendant intends to call in support of the claim.

(B) FAILURE TO FILE NOTICE

(1) If the defendant fails to file and serve the notice of alibi as required by this rule, the court may exclude entirely any evidence offered by the defendant for the purpose of proving the defense, except testimony by the defendant, may grant a continuance to enable the Commonwealth to investigate such evidence, or may make such other order as the interests of justice require.

(2) If the defendant omits any witness from the notice of alibi, the court at trial may exclude the testimony of the omitted witness, may grant a continuance to enable the Commonwealth to investigate the witness, or may make such other order as the interests of justice require.

(C) RECIPROCAL NOTICE OF WITNESSES

Within 10 days after receipt of the defendant’s notice of defense of alibi, or within such other time as allowed by the court upon cause shown, the attorney for the Commonwealth shall file and serve upon defendant’s attorney, or the defendant if unrepresented, written notice of the names and addresses of all witnesses the attorney for the Commonwealth intends to call to disprove or discredit the defendant’s claim of alibi.

(D) FAILURE TO FILE RECIPROCAL NOTICE

(1) If the attorney for the Commonwealth fails to file and serve a list of its witnesses required by this rule, the court may exclude any evidence offered by the Commonwealth for the purpose of disproving the alibi defense, may grant a continuance to enable the defense to investigate such evidence, or may make such other order as the interests of justice require.

(2) If the attorney for the Commonwealth omits a witness from the list of its witnesses required by paragraph (C), the court at trial may exclude the testimony of the omitted witness, may grant a continuance to enable the defense to investigate the witness, or may make such other order as the interests of justice require.

(E) CONTINUING DUTY TO DISCLOSE

If prior to or during trial a party learns of an additional witness whose identity, if known, should have been included in the notice furnished under paragraphs (A) or (C), the party promptly shall notify the other party’s attorney, or if unrepresented, the party, of the existence and identity of such additional witness.

(F) FAILURE TO CALL WITNESSES

No adverse inference may be drawn against the defendant, nor may any comment be made concerning the defendant’s failure to call available alibi witnesses, when such witnesses have been prevented from testifying by reason of this rule, unless the defendant or the defendant’s attorney shall attempt to explain such failure to the jury.

(G) IMPEACHMENT

A defendant may testify concerning an alibi notwithstanding that the defendant has not filed notice, but if the defendant has filed notice and testifies concerning his or her presence at the time of the offense at a place or time different from that specified in the notice, the defendant may be cross-examined concerning such notice.

This rule, which is derived from paragraphs (C)(1)(a), (c)—(g), and (D) of Rule 573 (Pretrial Discovery and Inspection) and was made a separate rule in 2006, sets forth the notice procedures when a defendant intends to raise an alibi defense at trial.

The reference in paragraph (A) to Rule 579 (Time for Omnibus Pretrial Motion and Service) contemplates consideration of the exceptions to the time for filing set forth in Rule 579(A).

The notice-of-alibi provision is intended to comply with the requirement of Wardius v. Oregon, 412 U.S. 470 (1973), by the inclusion of reciprocal disclosure responsibilities placed upon the Commonwealth in paragraph (C). See also Commonwealth v. Contakos, 314 A.2d 259 (Pa. 1974).

Any motion under this rule must comply with the provisions of Rule 575 (Motions and Answers) and Rule 576 (Filing and Service by Parties).

See Rule 576(b)(4) and Comment for the contents and form of the certificate of service.

Official Note

Adopted January 27, 2006, effective August 1, 2006.

Committee Explanatory Reports:

Final Report explaining the provisions of new Rule 567 governing notice of alibi defense published at 36 Pa.B. 700 (February 11, 2006).

The provisions Rule 567 adopted January 27, 2006, effective August 1, 2006, 36 Pa.B. 694; amended January 4, 2022, effective July 1, 2022, 52 Pa.B. 346. Immediately preceding text appears at serial pages (388413) and (361855) to (361856).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 568 Notice of Defense of Insanity or Mental Infirmity; Notice of Expert Evidence of a Mental Condition. {#sec-rule-568 omnilex-key=us-pa-regs-official--title-234--Rule 568}

(A) NOTICE BY DEFENDANT

(1) Notice of Defense of Insanity or Mental Infirmity

A defendant who intends to offer at trial the defense of insanity or mental infirmity shall file with the clerk of courts not later than the time required for filing an omnibus pretrial motion provided in Rule 579 a notice of the intention to offer the defense of insanity or mental infirmity, and shall serve a copy of the notice and a certificate of service on the attorney for the Commonwealth.

(a) The notice and certificate shall be signed by the attorney for the defendant, or the defendant if unrepresented.

(b) The notice shall contain specific available information as to the nature and extent of the alleged insanity or mental infirmity, the period of time that the defendant allegedly suffered from such insanity or mental infirmity, and the names and addresses of witnesses, expert or otherwise, whom the defendant intends to call to establish such defense.

(2) Notice of Expert Evidence of Mental Condition

Except as provided in Rule 841, a defendant who intends to introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant bearing (1) on the issue of guilt, or (2) in a capital case, on the issue of punishment, shall file with the clerk of courts not later than the time required for filing an omnibus pretrial motion provided in Rule 579 a notice of the intention to offer this expert evidence, and shall serve a copy of the notice and a certificate of service on the attorney for the Commonwealth.

(a) The notice and certificate shall be signed by the attorney for the defendant, or the defendant if unrepresented.

(b) The notice shall contain specific available information as to the nature and extent of the alleged mental disease or defect or any other mental condition, the period of time that the defendant allegedly suffered from such mental disease or defect or any other mental condition, and the names and addresses of the expert witness(es) whose evidence the defendant intends to introduce.

(B) FAILURE TO FILE NOTICE

(1) If the defendant fails to file and serve a notice of insanity or mental infirmity defense, or a notice of expert evidence of a mental condition as required by this rule, the court may exclude entirely any evidence offered by the defendant for the purpose of proving the defense, except testimony by the defendant, may grant a continuance to enable the Commonwealth to investigate such evidence, or may make any other order as the interests of justice require.

(2) If the defendant omits a witness from the notice of insanity or mental infirmity defense or a notice of expert evidence of a mental condition, the court at trial may exclude the testimony of the omitted witness, may grant a continuance to enable the Commonwealth to investigate such evidence, may grant a continuance to enable the Commonwealth to investigate the witness, or may make any other order as the interests of justice require.

(C) RECIPROCAL NOTICE OF WITNESSES

Within 10 days after receipt of the defendant’s notice of the insanity or mental infirmity defense, or notice of expert evidence of a mental condition, or within such other time as allowed by the court upon cause shown, the attorney for the Commonwealth shall file and serve upon defendant’s attorney, or the defendant if unrepresented, written notice of the names and addresses of all witnesses the attorney for the Commonwealth intends to call to disprove or discredit the defendant’s claim of insanity or mental infirmity, or mental disease, defect, or other mental condition.

(D) FAILURE TO SUPPLY RECIPROCAL NOTICE

(1) If the attorney for the Commonwealth fails to file and serve a list of its witnesses as required by this rule, the court may exclude any evidence offered by the Commonwealth for the purpose of disproving the insanity or mental infirmity defense, may grant a continuance to enable the defense to investigate such evidence, or may make such other order as the interests of justice require.

(2) If the attorney for the Commonwealth omits a witness from the list of its witnesses required by this rule, the court at trial may exclude the testimony of the omitted witness, may grant a continuance to enable the defense to investigate the witness, or may make such other order as the interests of justice require.

(E) CONTINUING DUTY TO DISCLOSE

If prior to or during trial a party learns of an additional witness whose identity, if known, should have been included in the notice furnished under paragraphs (A) or (C), the party shall promptly notify the other party’s attorney, or if unrepresented, the other party, of the existence and identity of such additional witness.

(F) FAILURE TO CALL WITNESSES

No adverse inference may be drawn against the defendant, nor may any comment be made concerning the defendant’s failure to call available witnesses with regard to the insanity or mental infirmity defense, when such witnesses have been prevented from testifying by reason of this rule, unless the defendant or the defendant’s attorney shall attempt to explain such failure to the jury.

This rule, which is derived from paragraphs (C)(1)(b), (c)—(f), and (D) of Rule 573 (Pretrial Discovery and Inspection) and was made a separate rule in 2006, sets forth the notice procedures when a defendant intends to raise a defense of insanity or mental infirmity, or introduce evidence relating to a mental disease or defect or any other mental condition at trial.

For the procedures related to the determination of mental retardation precluding imposition of a sentence of death, see Chapter 8 Part (B).

The reference in paragraph (A) to Rule 579 (Time for Omnibus Pretrial Motion and Service) contemplates consideration of the exceptions to the time for filing set forth in Rule 579(A).

See Rule 569 (Examination of Defendant by Mental Health Expert) for the procedures for the examination of the defendant by the Commonwealth’s expert when the defendant provides notice of an intention to raise a defense of insanity or mental infirmity or an intention to introduce expert evidence concerning his or her mental condition.

Any motion under this rule must comply with the provisions of Rule 575 (Motions and Answers) and Rule 576 (Filing and Service by Parties).

See Rule 576(b)(4) and Comment for the contents and form of the certificate of service.

Official Note

Adopted January 27, 2006, effective August 1, 2006; amended July 31, 2013, effective October 1, 2013.

Committee Explanatory Reports:

Final Report explaining the provisions of new Rule 568 governing notice of insanity or mental infirmity defense and notice of expert evidence of a mental condition published at 36 Pa.B. 700 (February 11, 2006).

Final Report explaining the July 31, 2013 amendment to paragraph (A)(2) and Comment revisions regarding notice of mental retardation published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).

The provisions of this Rule 568 adopted January 27, 2006, effective August 1, 2006, 36 Pa.B. 694; amended July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715; amended January 4, 2022, effective July 1, 2022, 52 Pa.B. 346. Immediately preceding text appears at serial pages (361856) and (368305) to (368306).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 569 Examination of Defendant by Mental Health Expert. {#sec-rule-569 omnilex-key=us-pa-regs-official--title-234--Rule 569}

(A) EXAMINATION OF DEFENDANT

(1) BY AGREEMENT

(a) The defendant, defendant’s counsel, and the attorney for the Commonwealth may agree to an examination of the defendant by the mental health expert(s) designated in the agreement.

(b) The agreement shall be in writing and signed by the defendant, defendant’s counsel, and the attorney for the Commonwealth, or made orally on the record.

(c) Unless otherwise agreed, the mental health expert(s) promptly shall prepare a written report stating the subject matter, the substance of the facts relied upon, and a summary of the expert’s opinions and the grounds for each opinion.

(2) BY COURT ORDER

(a) Upon motion of the attorney for the Commonwealth, if the court determines the defendant has provided notice of an intent to assert a defense of insanity or mental infirmity or notice of the intention to introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant pursuant to Rule 568, the court shall order that the defendant submit to an examination by one or more mental health experts specified in the motion by the Commonwealth for the purpose of determining the mental condition put in issue by the defendant.

(b) When the court orders an examination pursuant to this paragraph, the court on the record shall advise the defendant in person and in the presence of defendant’s counsel:

(i) of the purpose of the examination and the contents of the court’s order;

(ii) that the information obtained from the examination may be used at trial; and

(iii) the potential consequences of the defendant’s refusal to cooperate with the Commonwealth’s mental health expert(s).

(c) The court’s order shall:

(i) specify who may be present at the examination; and

(ii) specify the time within which the mental health expert(s) must submit the written report of the examination.

(d) Upon completion of the examination of the defendant, the mental health expert(s), within the time specified by the court as provided in paragraph (A)(2)(c)(ii), shall prepare a written report stating the subject matter, the substance of the facts relied upon, and a summary of the expert’s opinions and the grounds for each opinion.

(B) DISCLOSURE OF REPORTS BETWEEN PARTIES

(1) The mental health experts’ reports shall be confidential, and not of public record.

(2) Any mental health expert whom either party intends to call to testify concerning the defendant’s mental condition must prepare a written report. No mental health expert may be called to testify concerning the defendant’s mental condition until the expert’s report has been disclosed as provided herein.

(3) The court shall set a reasonable time after the Commonwealth’s expert’s examination for the disclosure of the reports of the parties’ mental health experts.

(C) PROTECTIVE ORDERS

Upon a sufficient showing, the court may at any time order that the disclosure of a report or reports be restricted or deferred for a specified time, or make such other order as is appropriate. Upon motion of any party, the court may permit the showing to be made in camera.

(D) SANCTIONS FOR NON-COMPLIANCE

At any time during the course of the proceedings, upon motion or sua sponte, if the court determines there has been a failure to comply with this rule, the court may order compliance, may grant a continuance, or may grant other appropriate relief. Upon motion, any hearing to determine if there has been a failure to comply may be held in camera and the record sealed until after disposition of the case.

(E) This rule does not apply to competency proceedings.

This rule establishes the procedures for the examination of the defendant by a mental health expert(s) retained by the prosecution pursuant to an agreement by the parties, see paragraph (A)(1), or a court order, see paragraph (A)(2).

‘‘Mental Health Expert,’’ as used in this rule, includes a psychiatrist, a licensed psychologist, a physician, or any other expert in the field of mental health who will be of substantial value in the determination of the issues raised by the defendant concerning his or her mental condition.

Examination of Defendant

Paragraph (A)(1) is intended to encourage the defendant, defendant’s counsel, and the attorney for the Commonwealth to agree to an examination of the defendant by the Commonwealth’s mental health expert(s).

When the defendant, defendant’s attorney, and the attorney for the Commonwealth agree that the defendant will be examined under this rule, at a minimum, the agreement should specify the time, place, and conditions of the examination, who may be present during the examination, and the time within which the parties will disclose the reports of their experts.

For the procedures when the Commonwealth files a motion pursuant to paragraph (A)(2)(a), see Rules 575 (Motions and Answers), 576 (Filing and Service by Parties), 577 (Procedures Following Filing of Motion).

It is intended that the examining mental health expert(s), whether appointed pursuant to the agreement of the parties or a Commonwealth’s motion, have substantial discretion in how to conduct an examination. The conduct of the examination, however, must conform to generally recognized and accepted practices in that profession. Therefore, the examination of the defendant may consist of such interviewing, clinical evaluation, and psychological testing as the examining mental health expert(s) considers appropriate, within the limits of non-experimental, generally accepted medical, psychiatric, or psychological practices.

Nothing in this rule is intended to limit the number of examining experts the defense may use, nor is it to be construed as a limitation on any party with regard to the number of other expert or lay witnesses they may call to testify concerning the defendant’s mental condition.

The court is required in paragraph (A)(2)(b) to inform the defendant, in person on the record, about the request for a compelled examination. See Rule 119 (Use of Two-Way Simultaneous Audio-Video Communication in Criminal Proceedings). The court is to explain that the examination is being conducted at the request of the attorney for the Commonwealth and that the purpose of the examination is to obtain information about defendant’s mental condition. In addition, the court should explain the procedures for the examination that are included in the court’s order as set forth in paragraph (A)(2)(b), and explain the potential consequences of the defendant’s failure to cooperate with the examination.

Paragraph (A)(2)(d) requires that the examining mental health expert(s) promptly prepare a written report and sets forth the minimum contents of that report. It is intended that the scope of the mental health expert’s report be limited in the court’s order to matters related to the defendant’s mental condition at the time put into issue by the defendant.

Disclosure of Reports

After the examination of the defendant by the Commonwealth’s mental health expert(s) is completed and the mental health expert’s report has been prepared, the defendant and the Commonwealth are required in paragraph (B) to disclose the reports that are made by any experts either party intends to call to testify concerning the defendant’s mental condition. The reports must be in writing, and should comply with the content requirements in paragraph (A)(2)(d). An expert witness cannot testify until the report is disclosed as provided in paragraph (B)(2) and (3). There may be situations in which the court would have to call a short recess to permit the expert to complete a written report and to give the parties an opportunity to review the report, such as when a mental health expert(s) is observing the defendant during the trial and will be called to testify on these observations.

When the parties agree to the examination, the time for the disclosure of the reports should be set by the agreement of the parties. The agreement should permit adequate time to review the reports and prepare for the proceeding. If the parties cannot agree, in cases proceeding pursuant to court order under paragraph (A)(2), the court should set the time for the disclosure of reports, which should afford the parties adequate time to review the reports and prepare for the proceeding.

Establishing a reasonable time frame and providing for the reciprocal disclosure are intended to further promote the fair handling of these cases. In no case should the disclosure occur until after the defendant has been examined by the Commonwealth’s mental health expert(s) and the mental health expert(s) has prepared and submitted a written report. When the defendant intends to introduce an expert’s psychiatric findings at the penalty phase of a death penalty case only, the disclosure may not take place until the penalty phase. See Commonwealth v. Sartin, 561 Pa. 522, 751 A.2d 1140 (2000) (the results of any examinations of the defendant by a Commonwealth’s expert must be sealed ‘‘until such time as the penalty phase commences and the defendant declares his intent to present his own psychiatric evidence in mitigation.’’)

There may be cases in which, although proceeding pursuant to a court order, the parties, with the court’s approval, agree to an earlier time for disclosure consistent with the purposes of this rule. This rule would not preclude such an agreement.

The procedures in paragraph (C) are similar to the existing procedures for protective orders in Rule 573(F).

Use of Information Obtained Under This Rule

Information obtained from the examination of a defendant by a Commonwealth’s expert is not to be disclosed or used except as permitted by case law, which is evolving. See, e.g., Commonwealth v. Santiago, 541 Pa. 188, 662 A.2d 610 (1995), Commonwealth v. Morley, 545 Pa. 420, 681 A.2d 1254 (1996), Commonwealth v. Szuchon, 548 Pa. 37, 693 A.2d 959 (1997), Commonwealth v. Karenbauer, 552 Pa. 420, 715 A.2d 1086 (1998), and Commonwealth v. Sartin, 561 Pa. 522, 751 A.2d 1140 (2000).

See the Pennsylvania Rules of Evidence concerning the admissibility of the experts’ reports and information from any examinations of the defendant by an expert.

Sanctions

The sanctions authorized by paragraph (D) may be imposed on any person who has failed to comply with any of the provisions of this rule, including the attorney for the Commonwealth, the defendant, defendant’s counsel, or an expert.

When the defendant has refused to cooperate in the examination by the Commonwealth’s mental health expert(s), before imposing a sanction, the court should consider whether the defendant’s failure to cooperate (1) was intentional, (2) was the result of the defendant’s mental illness, and (3) will have an adverse and unfair impact on the Commonwealth’s ability to respond to the defendant’s claim. The court also should consider whether ordering the defendant to resubmit to the examination would result in the defendant’s cooperation. See ABA Criminal Justice Mental Health Standards, Std. 7-3.4(c), for examples of possible sanctions to impose on a defendant.

Mental Health Procedures Act

Section 7402 (Incompetence to Proceed on Criminal Charges and Lack of Criminal Responsibility as Defense) of the Mental Health Procedures Act, 50 P. S. § 7402, prescribes, inter alia, procedures for conducting court-ordered examinations of a defendant when the defendant’s competency is an issue. The procedures in Section 7402 related to competency are distinct from the procedures set forth in this rule.

Official Note

Adopted January 27, 2006, effective August 1, 2006; Comment revised September 21, 2012, effective November 1, 2012.

Committee Explanatory Reports:

Final Report explaining the provisions of new Rule 569 governing the examination of the defendant by mental health experts published with the Court’s Order at 36 Pa.B. 700 (February 11, 2006).

Final Report explaining the September 21, 2012 revision of the Comment correcting a typographical error in the eighth paragraph published with the Court’s Order at 42 Pa.B. 6251 (October 6, 2012).

The provisions of this Rule 569 adopted January 27, 2006, effective August 1, 2006, 36 Pa.B. 694; amended September 21, 2012, effective November 1, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361859) to (361862).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 570 Pretrial Conference. {#sec-rule-570 omnilex-key=us-pa-regs-official--title-234--Rule 570}

(A) At any time after the filing of an information, upon motion, or upon its own motion, the court may order the attorney for the Commonwealth and the defense attorney or the pro se defendant to appear before it for a conference in open court, unless agreed by the defendant to be in chambers, to consider:

(1) the terms and procedures for pretrial discovery and inspection;

(2) the simplification or stipulation of factual issues, including admissibility of evidence;

(3) the qualification of exhibits as evidence to avoid unnecessary delay;

(4) the number of witnesses who are to give testimony of a cumulative nature;

(5) the defenses of alibi and insanity, as to which appropriate rulings may be made; and

(6) such other matters as may aid in the disposition of the proceeding.

(B) The parties shall have the right to record an objection to rulings of the court during the conference.

(C) The court shall place on the record the agreements or objections made by the parties and rulings made by the court as to any of the matters considered in the pretrial conference. Such order shall control the subsequent proceedings unless modified at trial to prevent injustice.

The following are suggested topics for the pretrial conference. The list is meant only to be suggestive and by no means exhaustive of the possible subjects for consideration.

(1) All motions including those for pretrial discovery and inspection, and for a bill of particulars.

(2) The establishing of the time and place of the offense charged and the corpus delecti.

(3) The qualifying of pictures, documents, confessions, records, or the like as evidence.

(4) The obtaining of admissions of fact.

(5) Pleas to various counts in the information(s) and whether the jury should be informed of such pleas.

(6) The nolle prosequi or other disposition of some counts of the information(s).

(7) All objections or defenses which are capable of determination before trial.

(8) Whether a defense of alibi, or insanity, or diminished responsibility resulting from other mental infirmity, or other defenses will be raised at the trial.

(9) The determination of the suppression or return of evidence.

(10) Whether there shall be any severance as to defendants or as to information(s) or counts thereof.

(11) The number of counsel who are to participate and examine witnesses.

(12) The order or procedure when there is more than one defendant.

(13) The length and number of addresses of counsel.

(14) The number of challenges of jurors.

(15) The procedure of voir dire, if pertinent.

The 1978 addition of the phrase ‘‘or a pro se defendant’’ in paragraph (A), and the deletion of paragraph (d), were made pursuant to the decision of the United States Supreme Court in Faretta v. California, 422 U. S. 806 (1975).

See Rule 595 for the requirements for a mandatory status conference following the arraignment in cases in which the defendant was under the age of 18 at the time of the commission of the alleged offense and charged with one of the offenses excluded from the definition of ‘‘delinquent act’’ in paragraphs (2)(i), (2)(ii), and (2)(iii) of 42 Pa.C.S. § 6302.

Official Note

Rule 311 adopted June 30, 1964, effective January 1, 1965; amended February 15, 1974, effective immediately; amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; amended August 12, 1993, effective September 1, 1993; renumbered Rule 570 March 1, 2000, effective April 1, 2001; Comment revised July 31, 2012, effective November 1, 2012.

Committee Explanatory Reports:

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

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining July 31, 2012 Comment revision cross-referencing proposed new Rule 595 concerning requests for transfer from criminal proceedings to juvenile proceedings published with the Court’s Order at 42 Pa.B. 5340 (August 18, 2012).

The provisions of this Rule 570 amended July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333. Immediately preceding text appears at serial pages (361862) to (361864).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 571 Arraignment. {#sec-rule-571 omnilex-key=us-pa-regs-official--title-234--Rule 571}

(A) Except as otherwise provided in paragraph (D), arraignment shall be in such form and manner as provided by local court rule. Notice of arraignment shall be given to the defendant as provided in Rule 114 or by first class mail. Unless otherwise provided by local court rule, or postponed by the court for cause shown, arraignment shall take place no later than 10 days after the information has been filed.

(B) In the discretion of the court, the arraignment of the defendant may be conducted by using two-way simultaneous audio-visual communication. When the counsel for the defendant is present, the defendant must be permitted to communicate fully and confidentially with defense counsel immediately prior to and during the arraignment.

(C) At arraignment, the defendant shall be advised:

(1) of the right to be represented by counsel;

(2) of the nature of the charges contained in the information;

(3) of the right to file motions, including a Request for a Bill of Particulars, a Motion for Pretrial Discovery and Inspection, a Motion Requesting Transfer from Criminal Proceedings to Juvenile Proceedings Pursuant to 42 Pa.C.S. § 6322, and an Omnibus Pretrial Motion, and the time limits within which the motions must be filed; and.

(4) if the defendant fails to appear without cause at any proceeding for which the defendant’s presence is required, including trial, that the defendant’s absence may be deemed a waiver of the right to be present, and the proceeding may be conducted in the defendant’s absence.

If the defendant or counsel has not received a copy of the information(s) pursuant to Rule 562, a copy thereof shall be provided.

(D) A defendant may waive appearance at arraignment if the following requirements are met:

(1) the defendant is represented by counsel of record and counsel concurs in the waiver; and

(2) the defendant and counsel sign and file with the clerk of courts a waiver of appearance at arraignment that acknowledges the defendant:

(a) understands the nature of the charges;

(b) understands the rights and requirements contained in paragraph (C) of this rule; and

(c) waives his or her right to appear for arraignment.

The main purposes of arraignment are: to ensure that the defendant is advised of the charges; to have counsel enter an appearance, or if the defendant has no counsel, to consider the defendant’s right to counsel; and to commence the period of time within which to initiate pretrial discovery and to file other motions. Although the specific form of the arraignment is not prescribed by this rule, judicial districts are required to ensure that the purposes of arraignments are accomplished in all court cases.

Concerning the waiver of counsel, see Rule 121.

Nothing in this rule is intended to preclude judicial districts from providing written notice of the arraignment to the defendant at the conclusion of the preliminary hearing when a case is held for court. See Rule 543.

Under paragraph (A), in addition to other instances of ‘‘cause shown’’ for delaying the arraignment, the arraignment may be delayed when the defendant is unavailable for arraignment within the 10-day period after the information is filed.

Within the meaning of paragraph (B), counsel is present when physically with the defendant or with the judicial officer presiding over the arraignment.

Under paragraph (B), the court has discretion to order that a defendant appear in person for the arraignment.

Under paragraph (B), two-way simultaneous audio-visual communication is a form of advanced communication technology.

Paragraph (C)(4) requires that the defendant be advised of the consequences of failing to appear for any court proceeding. See Rule 602 concerning a defendant’s failure to appear for trial; see also Commonwealth v. Bond, 693 A.2d 220, 223 (Pa. Super. 1997) (‘‘[A] defendant who is unaware of the charges against him, unaware of the establishment of his trial date or is absent involuntarily is not absent ‘without cause.’’’).

Paragraph (D) is intended to facilitate, for defendants represented by counsel, waiver of appearance at arraignment through procedures such as arraignment by mail. For the procedures to provide notice of court proceedings requiring the defendant’s presence, see Rule 114.

See Rule 596 for the procedures for requesting transfer from criminal proceedings to juvenile proceedings pursuant to 42 Pa.C.S. § 6322 in cases in which the defendant was under the age of 18 at the time of the commission of the alleged offense and charged with one of the offenses excluded from the definition of ‘‘delinquent act’’ in paragraphs (2)(i), (2)(ii), and (2)(iii) of 42 Pa.C.S. § 6302. See also Rules 595 (mandatory status conference), 597 (procedures when motion filed), and 598 (place of detention).

Official Note

Formerly Rule 317, adopted June 30, 1964, effective January 1, 1965; paragraph (b) amended November 22, 1971, effective immediately; paragraphs (a) and (b) amended and paragraph (e) deleted November 29, 1972, effective 10 days hence; paragraphs (a) and (c) amended February 15, 1974, effective immediately. Rule 317 renumbered Rule 303 and amended June 29, 1977, amended and paragraphs (c) and (d) deleted October 21, 1977, and amended November 22, 1977, all effective as to cases in which the indictment or information is filed on or after January 1, 1978; Comment revised January 28, 1983, effective July 1, 1983; amended October 21, 1983, effective January 1, 1984; amended August 12, 1993, effective September 1, 1993; rescinded May 1, 1995, effective July 1, 1995, and replaced by new Rule 303. New Rule 303 adopted May 1, 1995, effective July 1, 1995; renumbered Rule 571 and amended March 1, 2000, effective April 1, 2001; amended November 17, 2000, effective January 1, 2001; amended May 10, 2002, effective September 1, 2002; amended March 3, 2004, effective July 1, 2004; amended August 24, 2004, effective August 1, 2005; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; amended July 31, 2012, effective November 1, 2012; amended May 2, 2013, effective June 1, 2013.

Committee Explanatory Reports:

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

Final Report explaining the May 1, 1995 changes published with the Court’s Order at 25 Pa.B. 1944 (May 20, 1995).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the November 17, 2000 amendments concerning a defendant’s waiver of appearance at arraignment published with the Court’s Order at 30 Pa.B. 6184 (December 2, 2000).

Final Report explaining the May 10, 2002 amendments concerning advanced communication technology published with the Court’s Order at 32 Pa.B. 2591 (May 25, 2002).

Final Report explaining the March 3, 2004 amendments updating the cross-references correlative to the March 3, 2004 changes to the motions rules published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

Final Report explaining the August 24, 2004 addition of paragraph (E) and the correlative Comment provisions published with the Court’s Order at 34 Pa.B. 5025 (September 11, 2004).

Final Report explaining the May 1, 2007 deletion of paragraph (E) and the correlative Comment provisions published with the Court’s Order at 37 Pa.B. 2503 (June 2, 2007).

Final Report explaining the July 31, 2012 amendments concerning requests for transfer from criminal proceedings to juvenile proceedings published with the Court’s Order at 42 Pa.B. 5340 (August 18, 2012).

Final Report explaining the May 2, 2013 amendments concerning notice of consequences of failing to appear published the Court’s Order at 43 Pa.B. 2710 (May 18, 2013).

The provisions of this Rule 571 amended November 17, 2000, effective January 1, 2001, 30 Pa.B. 6183; amended May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended May 1, 2007, effective September 4, 2007, 37 Pa.B. 2496; amended July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333; amended May 2, 2013, effective June 1, 2013, 43 Pa.B. 2704. Immediately preceding text appears at serial pages (363584) to (363586).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 572 Bill of Particulars. {#sec-rule-572 omnilex-key=us-pa-regs-official--title-234--Rule 572}

(A) A request for a bill of particulars shall be served in writing by the defendant upon the attorney for the Commonwealth within 7 days following arraignment. The request shall promptly be filed and served as provided in Rule 576.

(B) The request shall set forth the specific particulars sought by the defendant, and the reasons why the particulars are requested.

(C) Upon failure or refusal of the attorney for the Commonwealth to furnish a bill of particulars after service of a request, the defendant may make written motion for relief to the court within 7 days after such failure or refusal. If further particulars are desired after an original bill of particulars has been furnished, a motion therefor may be made to the court within 5 days after the original bill is furnished.

(D) When a motion for relief is made, the court may make such order as it deems necessary in the interests of justice.

The traditional function of a Bill of particulars is to clarify the pleadings and to limit the evidence which can be offered to support the information.

Official Note

Rule 304 adopted June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; amended October 21, 1983, effective January 1, 1984; amended June 19, 1996, effective July 1, 1996; renumbered Rule 572 and amended March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004.

Committee Explanatory Reports:

Final Report explaining the June 19, 1996 amendments published with the Court’s Order at 26 Pa.B. 3128 (July 6, 1996).

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 March 3, 2004 amendments to paragraph (A) published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

The provisions of this Rule 572 amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547. Immediately preceeding text appears at serial pages (289105) and (264279).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 573 Pretrial Discovery and Inspection. {#sec-rule-573 omnilex-key=us-pa-regs-official--title-234--Rule 573}

(A) INFORMAL

Before any disclosure or discovery can be sought under these rules by either party, counsel for the parties shall make a good faith effort to resolve all questions of discovery, and to provide information required or requested under these rules as to which there is no dispute. When there are items requested by one party which the other party has refused to disclose, the demanding party may make appropriate motion. Such motion shall be made within 14 days after arraignment, unless the time for filing is extended by the court. In such motion the party must set forth the fact that a good faith effort to discuss the requested material has taken place and proved unsuccessful. Nothing in this provision shall delay the disclosure of any items agreed upon by the parties pending resolution of any motion for discovery.

(B) DISCLOSURE BY THE COMMONWEALTH

(1) MANDATORY:

In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.

(a) Any evidence favorable to the accused that is material either to guilt or to punishment, and is within the possession or control of the attorney for the Commonwealth;

(b) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made that is in the possession or control of the attorney for the Commonwealth;

(c) the defendant’s prior criminal record;

(d) the circumstances and results of any identification of the defendant by voice, photograph, or in-person identification;

(e) any results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant that are within the possession or control of the attorney for the Commonwealth;

(f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence; and

(g) the transcripts and recordings of any electronic surveillance, and the authority by which the said transcripts and recordings were obtained.

(2) DISCRETIONARY WITH THE COURT:

(a) In all court cases, except as otherwise provided in Rules 230 (Disclosure of Testimony Before Investigating Grand Jury) and 556.10 (Secrecy; Disclosure), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:

(i) the names and addresses of eyewitnesses;

(ii) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial;

(iii) all written and recorded statements, and substantially verbatim oral statements, made by co-defendants, and by co-conspirators or accomplices, whether such individuals have been charged or not; and

(iv) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.

(b) If an expert whom the attorney for the Commonwealth intends to call in any proceeding has not prepared a report of examination or tests, the court, upon motion, may order that the expert prepare, and that the attorney for the Commonwealth disclose, a report stating the subject matter on which the expert is expected to testify; the substance of the facts to which the expert is expected to testify; and a summary of the expert’s opinions and the grounds for each opinion.

(C) DISCLOSURE BY THE DEFENDANT

(1) In all court cases, if the Commonwealth files a motion for pretrial discovery, upon a showing of materiality to the preparation of the Commonwealth’s case and that the request is reasonable, the court may order the defendant, subject to the defendant’s rights against compulsory self-incrimination, to allow the attorney for the Commonwealth to inspect and copy or photograph any of the following requested items:

(a) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, that the defendant intends to introduce as evidence in chief, or were prepared by a witness whom the defendant intends to call at the trial, when results or reports relate to the testimony of that witness, provided the defendant has requested and received discovery under paragraph (B)(1)(e); and

(b) the names and addresses of eyewitnesses whom the defendant intends to call in its case-in-chief, provided that the defendant has previously requested and received discovery under paragraph (B)(2)(a)(i).

(2) If an expert whom the defendant intends to call in any proceeding has not prepared a report of examination or tests, the court, upon motion, may order that the expert prepare and the defendant disclose a report stating the subject matter on which the expert is expected to testify; the substance of the facts to which the expert is expected to testify; and a summary of the expert’s opinions and the grounds for each opinion.

(D) CONTINUING DUTY TO DISCLOSE

If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material, or witness.

(E) REMEDY

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

(F) PROTECTIVE ORDERS

Upon a sufficient showing, the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion of any party, the court may permit the showing to be made, in whole or in part, in the form of a written statement to be inspected by the court in camera. If the court enters an order granting relief following a showing in camera, the entire text of the statement shall be sealed and preserved in the records of the court to be made available to the appellate court(s) in the event of an appeal.

(G) WORK PRODUCT

Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the attorney for the Commonwealth or the attorney for the defense, or members of their legal staffs.

This rule is intended to apply only to court cases. However, the constitutional guarantees mandated in Brady v. Maryland, 373 U. S. 83 (1963), and the refinements of the Brady standards embodied in subsequent judicial decisions, apply to all cases, including court cases and summary cases, and nothing to the contrary is intended. For definitions of ‘‘court case’’ and ‘‘summary case,’’ see Rule 103.

See Rule 556.10(B)(5) for discovery in cases indicted by a grand jury.

The attorney for the Commonwealth should not charge the defendant for the costs of copying pretrial discovery materials. However, nothing in this rule is intended to preclude the attorney for the Commonwealth, on a case-by-case basis, from requesting an order for the defendant to pay the copying costs. In these cases, the trial judge has discretion to determine the amount of costs, if any, to be paid by the defendant.

Any motion under this rule must comply with the provisions of Rule 575 (Motions and Answers) and Rule 576 (Filing and Service by Parties).

See Rule 576(b)(4) and Comment for the contents and form of the certificate of service.

See Rule 569 (Examination of Defendant by Mental Health Expert) for the procedures for the examination of the defendant by the mental health expert when the defendant has given notice of an intention to assert a defense of insanity or mental infirmity or notice of the intention to introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant.

Included within the scope of paragraph (B)(2)(a)(iv) is any information concerning any prosecutor, investigator, or police officer involved in the case who has received either valuable consideration, or an oral or written promise or contract for valuable consideration, for information concerning the case, or for the production of any work describing the case, or for the right to depict the character of the prosecutor or investigator in connection with his or her involvement in the case.

Pursuant to paragraphs (B)(2)(b) and (C)(2), the trial judge has discretion, upon motion, to order an expert who is expected to testify at trial to prepare a report. However, these provisions are not intended to require a prepared report in every case. The judge should determine, on a case-by-case basis, whether a report should be prepared. For example, a prepared report ordinarily would not be necessary when the expert is known to the parties and testifies about the same subject on a regular basis. On the other hand, a report might be necessary if the expert is not known to the parties or is going to testify about a new or controversial technique.

Whenever the rule makes reference to the term ‘‘identification,’’ or ‘‘in-person identification,’’ it is understood that such terms are intended to refer to all forms of identifying a defendant by means of the defendant’s person being in some way exhibited to a witness for the purpose of an identification: e.g., a line-up, stand-up, show-up, one-on-one confrontation, one-way mirror, etc. The purpose of this provision is to make possible the assertion of a rational basis for a claim of improper identification based upon Stovall v. Denno, 388 U. S. 293 (1967), and United States v. Wade, 388 U. S. 218 (1967).

This rule is not intended to affect the admissibility of evidence that is discoverable under this rule or evidence that is the fruits of discovery, nor the standing of the defendant to seek suppression of such evidence. See Rule 211 for the procedures for disclosure of a search warrant affidavit(s) that has been sealed.

Paragraph (C)(1), which provided the requirements for notice of the defenses of alibi, insanity, and mental infirmity, was deleted in 2006 and moved to Rules 567 (Notice of Alibi Defense) and 568 (Notice of Defense of Insanity or Mental Infirmity).

It is intended that the remedies provided in paragraph (E) apply equally to the Commonwealth and the defendant as the interests of justice require.

The provision for a protective order, paragraph (F), does not confer upon the Commonwealth any right of appeal not presently afforded by law.

It should also be noted that as to material which is discretionary with the court, or which is not enumerated in the rule, if such information contains exculpatory evidence as would come under the Brady rule, it must be disclosed. Nothing in this rule is intended to limit in any way disclosure of evidence constitutionally required to be disclosed.

The limited suspension of Section 5720 of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5720, see Rule 1101(E), is intended to insure that the statutory provision and Rule 573(B)(1)(g) are read in harmony. A defendant may seek discovery under paragraph (B)(1)(g) pursuant to the time frame of the rule, while the disclosure provisions of Section 5720 would operate within the time frame set forth in Section 5720 as to materials specified in Section 5720 and not previously discovered.

Official Note

Present Rule 305 replaces former Rules 310 and 312 in their entirety. Former Rules 310 and 312 adopted June 30, 1964, effective January 1, 1965. Former Rule 312 suspended June 29, 1973, effective immediately. Present Rule 305 adopted June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; Comment revised April 24, 1981, effective June 1, 1981; amended October 22, 1981, effective January 1, 1982; amended September 3, 1993, effective January 1, 1994; amended May 13, 1996, effective July 1, 1996; Comment revised July 28, 1997, effective immediately; Comment revised August 28, 1998, effective January 1, 1999; renumbered Rule 573 and amended March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004; Comment revised March 26, 2004, effective July 1, 2004; amended January 27, 2006, effective August 1, 2006; amended June 21, 2012, effective in 180 days.

Committee Explanatory Reports:

Report explaining the September 3, 1993 amendments published at 21 Pa.B. 3681 (August 17, 1991).

Final Report explaining the May 13, 1996 amendments published with the Court’s Order at 26 Pa.B. 2488 (June 1, 1996).

Final Report explaining the July 28, 1997 Comment revision deleting the references to the ABA Standards published with the Court’s Order at 27 Pa.B. 3997 (August 9, 1997).

Final Report explaining the August 28, 1998 Comment revision concerning disclosure of remuneration published with the Court’s Order at 28 Pa.B. 4883 (October 3, 1998).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 3, 2004 amendments to paragraphs (A), (C)(1)(a), and (C)(1)(b), and the revision to the Comment adding the reference to Rules 575 and 576 published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

Final Report explaining the March 26, 2004 Comment revision concerning costs of copying discovery materials published with the Court’s Order at 34 Pa.B. 1933 (April 10, 2004).

Final Report explaining the January 27, 2006 changes to paragraph (C) deleting the notice of defenses of alibi, insanity, and mental infirmity published with the Court’s Order at 36 Pa.B. 700 (February 11, 2006).

Final Report explaining the June 21, 2012 amendments concerning discovery when case is indicted by grand jury published with the Court’s Order at 42 Pa.B. 4153 (July 7, 2012).

The provisions of this Rule 573 amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended March 26, 2004, effective July 1, 2004, 34 Pa.B. 1932; amended January 27, 2006, effective August 1, 2006, 36 Pa.B. 694; amended June 21, 2012, effective in 180 days, 42 Pa.B. 4140; amended January 4, 2022, effective July 1, 2022, 52 Pa.B. 346. Immediately preceeding text appears at serial pages (371045) to (371050).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 574 Forensic Laboratory Report; Certification in Lieu of Expert Testimony. {#sec-rule-574 omnilex-key=us-pa-regs-official--title-234--Rule 574}

(a) In any trial, the attorney for the Commonwealth may seek to offer into evidence a forensic laboratory report supported by a certification, as provided in subdivision (e), in lieu of testimony by the person who performed the analysis or examination that is the subject of the report.

(b) Notice.

(1) If the attorney for the Commonwealth intends to offer the forensic laboratory report and accompanying certification as provided in subdivision (a) as evidence at trial, the attorney for the Commonwealth shall file and serve, as provided in Rule 576, upon the defendant’s attorney or, if unrepresented, the defendant a written notice of that fact at the time of the disclosure of the report but no later than 20 days prior to the start of trial.

(2) The notice shall include a statement informing the defendant that, as provided in subdivision (c)(3), if no written demand for testimony by the person who performed the analysis or examination that is the subject of the forensic laboratory report is made within 10 days of the service of the notice, the forensic laboratory report and accompanying certification are admissible in evidence without the person who performed the analysis or examination testifying.

(3) Except as provided in subdivision (c), the laboratory report and accompanying certification are admissible in evidence to the same effect as if the person who performed the analysis or examination had personally testified.

(c) Demand.

(1) Within 10 days of service of the notice provided in subdivision (b), the defendant’s attorney, or if unrepresented, the defendant may file and serve, as provided in Rule 576, upon the attorney for the Commonwealth a written demand for the person who performed the analysis or examination that is the subject of the forensic laboratory report to testify at trial.

(2) If a written demand is filed and served, the forensic laboratory report and accompanying certification are not admissible under subdivision (b)(3) unless the person who performed the analysis or examination testifies.

(3) If no demand for live testimony regarding the forensic laboratory report and accompanying certification is filed and served within the time allowed by this section, the forensic laboratory report and accompanying certification are admissible in evidence without the person who performed the analysis or examination testifying.

(d) Extension. For cause shown, the judge may:

(1) extend the time period for filing the notice or for filing the demand for live testimony; or

(2) grant a continuance of the trial.

(e) Certification.

The person who performed the analysis or examination that is the subject of the forensic laboratory report shall complete a certification in which the person shall state:

(1) the education, training, and experience that qualify him or her to perform the analysis or examination;

(2) the entity by which he or she is employed and a description of his or her regular duties;

(3) the name and location of the laboratory where the analysis or examination was performed;

(4) any state, national, or international accreditations of the laboratory at which the analysis or examination was performed;

(5) that the analysis or examination was performed under industry-approved procedures or standards; and

(6) the report accurately reflects the findings and opinions of the person who performed the analysis or examination regarding the results of the analysis or examination.

This rule was adopted in 2014 to address the issues raised by the U.S. Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), that held that the 6th Amendment confrontation right precluded presentation of laboratory reports without a live witness testifying in the trial. In Melendez-Diaz, the U.S. Supreme Court noted with approval the use of ‘‘notice and demand’’ procedures as a means of permitting routine laboratory reports to be admitted without the expense of supporting the admission by live expert testimony while protecting a defendant’s confrontation rights.

This rule provides a ‘‘notice and demand’’ procedure for Pennsylvania. Under the rule, the attorney for the Commonwealth may seek to admit a forensic laboratory report as evidence without the testimony of the analyst who performed the testing that was the subject of the report if notice requirements are met and no demand for the presence of the analyst is made. If the defendant makes such a demand, the analyst would be required to testify before the report could be admitted into evidence.

Nothing in this rule is intended to preclude a stipulation agreed to by the parties for the admission of the laboratory report without the analyst’s presence.

Nothing in the rule would prevent further stipulation by the parties in light of the admission of the report and certification.

Nothing in this rule is intended to change the requirement for the provision of discovery under Rule 573.

Under subdivision (d), the trial judge may permit filing of the notice or demand after the time period required in the rule if the party seeking the late filing shows cause for the delay. In the situation where the judge permits the late filing of the notice, the defendant still has 10 days in which to make the demand for the live testimony of the analyst. This may necessitate a continuance of the trial.

The certification in subdivision (e) does not require a description of the actual tests performed for the analysis. This information more properly belongs in the report itself. Since one of the goals of this rule is to permit the defendant to make an informed decision regarding whether to demand the live testimony of the analyst, the report should provide information sufficient to describe the methodology by which the results were determined.

For purposes of this rule, a laboratory is ‘‘accredited’’ when its management, personnel, quality system, operational and technical procedures, equipment and physical facilities meet the ISO/IEC 17025 standard in the forensic field of testing as determined by an International Laboratory Accreditation Cooperation recognized accreditation organization that has been evaluated to meet the ISO/IEC 17011 standard and that has expertise in the forensic laboratory accreditation field.

The provisions of this Rule 574 adopted February 19, 2014, effective April 1, 2014, 44 Pa.B. 1309; amended September 11, 2023, effective January 1, 2024, 53 Pa.B. 5885. Immediately preceding text appears at serial pages (409882) to (409884).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 575 Motions and Answers. {#sec-rule-575 omnilex-key=us-pa-regs-official--title-234--Rule 575}

(A) MOTIONS

(1) All motions shall be in writing, except as permitted by the court or when made in open court during a trial or hearing.

(2) A written motion shall comply with the following requirements:

(a) The motion shall be signed by the person or attorney making the motion. The signature of an attorney shall constitute a certification that the attorney has read the motion, that to the best of the attorney’s knowledge, information, and belief there is good ground to support the motion, and that it is not interposed for delay. The motion also shall contain a certification that the motion complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania regarding confidential information and documents.

(b) The motion shall include the court, caption, term, and number of the case in which relief is requested.

(c) The motion shall state with particularity the grounds for the motion, the facts that support each ground, and the types of relief or order requested.

(d) The motion shall be divided into consecutively numbered paragraphs, each containing only one material allegation as far as practicable.

(e) The motion shall include any requests for hearing or argument, or both.

(f) The motion shall include a certificate of service as required by Rule 576(b)(4).

(g) If the motion sets forth facts that do not already appear of record in the case, the motion shall 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.

(3) The failure, in any motion, to state a type of relief or a ground therefor shall constitute a waiver of such relief or ground.

(4) Any motion may request such alternative relief as may be appropriate.

(5) Rules to Show Cause and Rules Returnable are abolished. Notices of hearings are to be provided pursuant to Rules 114(B) and 577(A)(2).

(B) ANSWERS

(1) Except as provided in Rule 906 (Answer to Petition for Post-Conviction Collateral Relief), an answer to a motion is not required unless the judge orders an answer in a specific case as provided in Rule 577. Failure to answer shall not constitute an admission of the facts alleged in the motion.

(2) A party may file a written answer, or, if a hearing or argument is scheduled, may respond orally at that time, even though an answer is not required.

(3) A written answer shall comply with the following requirements:

(a) The answer shall be signed by the person or attorney making the answer. The signature of an attorney shall constitute a certification that the attorney has read the answer, that to the best of the attorney’s knowledge, information, and belief there is good ground to support the answer, and that it is not interposed for delay. The answer also shall contain a certification that the answer complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania regarding confidential information and documents.

(b) The answer shall meet the allegations of the motion and shall specify the type of relief, order, or other action sought.

(c) The answer shall include a certificate of service as required by Rule 576(b)(4).

(d) If the answer sets forth facts that do not already appear of record in the case, the answer shall 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.

(e) The answer shall be filed not later than 10 days after service of the motion, unless otherwise ordered by the court.

(C) Format of Motions, Answers, and Briefs

All motions, answers, and briefs must conform to the following requirements:

(1) The document shall be on 8 1/2 inch by 11 inch paper.

(2) The document shall be prepared on white paper (except for dividers and similar sheets) of good quality.

(3) The first sheet shall contain a 3-inch space from the top of the paper for all court stampings, filing notices, etc.

(4) The text must be double spaced, but quotations more than two lines long may be indented and single spaced. Margins must be at least one inch on all four sides.

(5) The lettering shall be clear and legible and no smaller than point 12. The lettering shall be on only one side of a page, except that exhibits and similar supporting documents may be lettered on both sides of a page.

(6) Documents and papers shall be firmly bound.

(D) Unified Practice

Any local rule that is inconsistent with the provisions of this rule is prohibited, including any local rule requiring a party to attach a proposed order to a motion or an answer, requiring an answer to every motion, or requiring a cover sheet or a backer for any motion or answer.

For the definition of ‘‘motion,’’ see Rule 103.

See Rule 1005 for the procedures for pretrial applications for relief in the Philadelphia Municipal Court.

‘‘Rules to Show Cause’’ and ‘‘Rules Returnable’’ were abolished in 2004 because the terminology is arcane, and the concept of these ‘‘rules’’ has become obsolete. These ‘‘rules’’ have been replaced by the plain language ‘‘notice of hearings’’ provided in Rule 577(A)(2).

Pursuant to paragraphs (A)(2)(f) and (B)(3)(c), and Rule 576(b)(4), all filings by the parties must include a certificate of service setting forth the date and manner of service, and the names, addresses, and phone numbers of the persons served.

Although paragraph (B)(1) does not require an answer to every motion, the rule permits a judge to order an answer in a specific case. See Rule 114 for the requirements for the filing and serving of orders, and for making docket entries.

Paragraph (B)(1) changes prior practice by providing that the failure to answer a motion in a criminal case never constitutes an admission. Although this prohibition applies in all cases, even those in which an answer has been ordered in a specific case or is required by the rules, the judge would have discretion to impose other appropriate sanctions if a party fails to file an answer ordered by the judge or required by the rules.

See Rule 113.1 regarding the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania and the requirements regarding filings and documents that contain confidential information.

Paragraph (C), added in 2006, sets forth the format requirements for all motions, answers, and briefs filed in criminal cases. These new format requirements are substantially the same as the format requirements in Pennsylvania Rule of Appellate Procedure 124(a) and Pennsylvania Rule of Civil Procedure 204.1.

The format requirements in paragraph (C) are not intended to apply to pre-printed and computer-generated forms prepared by the Administrative Office of Pennsylvania Courts; to charging documents; to documents routinely used by court-related agencies; or to documents routinely prepared or utilized by the courts.

Pro se defendants may submit handwritten documents that comply with the other requirements in paragraph (C) and are clearly readable.

Paragraph (D), titled ‘‘Unified Practice,’’ was added in 2004 to emphasize that local rules must not be inconsistent with the statewide rules. Although this prohibition on local rules that are inconsistent with the statewide rules applies to all criminal rules through Rule 105 (Local Rules) and Pa.R.J.A. No. 103(d), the reference to the specific prohibitions is included because these types of local rules have been identified by practitioners as creating significant impediments to the statewide practice of law within the unified judicial system. See Pa.R.J.A. No. 103(d)(1). The term ‘‘local rule’’ includes every rule, regulation, directive, policy, custom, usage, form or order of general application. See Pa.R.J.A. No. 103(d)(1).

The prohibition on local rules mandating cover sheets was added because cover sheets are no longer necessary with the addition of the Rule 576(b)(1) requirement that the court administrator be served a copy of all motions and answers.

Although paragraph (D) precludes local rules that require a proposed order be included with a motion, a party should consider whether to include a proposed order. Proposed orders may aid the court by defining the relief requested in the motion or answer.

Official Note

Former Rule 9020 adopted October 21, 1983, effective January 1, 1984; renumbered Rule 574 and amended March 1, 2000, effective April 1, 2001; rescinded March 3, 2004, effective July 1, 2004. Former Rule 9021 adopted October 21, 1983, effective January 1, 1984; renumbered Rule 575 and amended March 1, 2000, effective April 1, 2001; Rules 574 and 575 combined as Rule 575 and amended March 3, 2004, effective July 1, 2004; amended July 7, 2006, effective February 1, 2007; amended January 5, 2018, effective January 6, 2018; amended June 1, 2018, effective July 1, 2018.

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. 1478 (March 18, 2000).

Final Report explaining the March 3, 2004 rule changes combining Rule 574 with Rule 577 published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

Final Report explaining the July 7, 2006 addition of the format requirements in paragraph (C) published with the Court’s Order at 36 Pa.B. 3808 (July 22, 2006).

Final Report explaining the January 5, 2018 amendment regarding the Court’s public access policy published with the Court’s Order at 48 Pa.B. 490 (January 20, 2018).

Amendment regarding the Court’s public access policy published with the Court’s Order at 48 Pa.B. 3575 (June 16, 2018).

The provisions of this Rule 575 amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended July 7, 2006, effective February 1, 2007, 36 Pa.B. 3808; amended January 5, 2018, effective January 6, 2018, 48 Pa.B. 487; amended June 1, 2018, effective July 1, 2018, 48 Pa.B. 3575; amended January 4, 2022, effective July 1, 2022, 52 Pa.B. 346. Immediately preceding text appears at serial pages (392762) to (392765).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 576 Filing and Service by Parties. {#sec-rule-576 omnilex-key=us-pa-regs-official--title-234--Rule 576}

(a) Filing.

(1) All written motions and any written answers, and any notices or documents for which filing is required, shall be filed with the clerk of courts.

(2) Filing shall be:

(i) by personal delivery to the clerk of courts;

(ii) by mail addressed to the clerk of courts. Except as provided by law, filing by mail shall be timely only when actually received by the clerk of courts within the time fixed for filing; or,

(iii) in a judicial district that permits electronic filing pursuant to Rule 576.1, as provided in Rule 576.1(E).

(3) The clerk of courts shall accept all written motions, answers, notices, or documents presented for filing. When a document, which is filed pursuant to subdivision (a)(1), is received by the clerk of courts, the clerk shall time stamp it with the date of receipt and make a docket entry reflecting the date of receipt, and promptly shall place the document in the criminal case file.

(4) In any case in which a defendant is represented by an attorney, if the defendant submits for filing a written motion, notice, or document that has not been signed by the defendant’s attorney, the clerk of courts shall accept it for filing, time stamp it with the date of receipt and make a docket entry reflecting the date of receipt, and place the document in the criminal case file. A copy of the time stamped document shall be forwarded to the defendant’s attorney and the attorney for the Commonwealth within 10 days of receipt.

(5) If a defendant submits a document pro se to a judge without filing it with the clerk of courts, and the document requests some form of cognizable legal relief, the judge promptly shall forward the document to the clerk of courts for filing and processing in accordance with this rule.

(6) Unified Practice. Any local rule that is inconsistent with the provisions of this rule is prohibited, including any local rule requiring that a document has to be presented in person before filing or requiring review by a court or court administrator before a document may be filed.

(b) Service.

(1) All written motions and any written answers, and notices or documents for which filing is required, shall be served upon each party and the court administrator concurrently with filing.

(2) Service on the parties shall be by:

(i) personal delivery of a copy to a party’s attorney, or the party if unrepresented; or

(ii) personal delivery of a copy to the party’s attorney’s employee at the attorney’s office; or

(iii) mailing a copy to a party’s attorney or leaving a copy for the attorney at the attorney’s office; or

(iv) in those judicial districts that maintain in the courthouse assigned boxes for counsel to receive service, when counsel has agreed to receive service by this method, leaving a copy for the attorney in the attorney’s box; or

(v) sending a copy to an unrepresented party by certified, registered, or first class mail addressed to the party’s place of residence, business, or confinement; or

(vi) sending a copy by facsimile transmission or other electronic means if the party’s attorney, or the party if unrepresented, has made a written request for this method of service for the document; or

(vii) delivery to the party’s attorney, or the party if unrepresented, by carrier service.

(3) Service on the court administrator shall be by:

(i) mailing a copy to the court administrator; or

(ii) in those judicial districts that maintain in the courthouse assigned boxes for the court administrator to receive service, leaving a copy for the court administrator in the court administrator’s box; or

(iii) leaving a copy for the court administrator at the court administrator’s office; or

(iv) sending a copy to the court administrator by facsimile transmission or other electronic means if authorized by local rule; or

(v) delivery to the court administrator by carrier service.

(4) Certificate of Service.

(i) All documents that are filed and served pursuant to this rule shall include a certificate of service.

(ii) The certificate of service shall be in substantially the form set forth in the Comment, signed by the party’s attorney, or the party if unrepresented, and shall include the date and manner of service, and the names, addresses, and phone numbers of the persons served.

(5) In a judicial district that permits electronic filing pursuant to Rule 576.1, service shall be made as provided in Rule 576.1(D)(2) and (H)(1).

(c) Any non-party requesting relief from the court in a case shall file the motion with the clerk of courts as provided in subdivision (a), and serve the defendant’s attorney, or the defendant if unrepresented, the attorney for the Commonwealth, and the court administrator as provided in subdivision (b).

For the procedures for electronic filing and service as a local option, see Rule 576.1.

Subdivision (a)(1) requires the filing of all written motions, and answers. The provision also applies to notices and other documents only if filing is required by some other rule or provision of law. See, e.g., the notice of withdrawal of charges provisions in Rule 561 (Withdrawal of Charges by Attorney for the Commonwealth), the notice of alibi defense and notice of insanity defense or mental infirmity defense provisions in Rule 573 (Pretrial Discovery and Inspection), the notice that offenses or defendants will be tried together provisions in Rule 582 (Joinder—Trial of Separate Indictments or Informations), the notice of aggravating circumstances provisions in Rule 802 (Notice of Aggravating Circumstances), and the notice of challenge to a guilty plea provisions in Municipal Court cases in Rule 1007 (Challenge to Guilty Plea).

When a motion, notice, document, or answer is presented for filing pursuant to subdivision (a)(1), the clerk of courts must accept it for filing even if the motion, notice, document, or answer does not comply with a rule or statute or appears to be untimely filed. It is suggested that the judicial district implement procedures to inform the filing party when a document is not in compliance with these rules or a local rule so the party may correct the problem.

See Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997); and Commonwealth v. Little, 716 A.2d 1287 (Pa. Super. 1998) concerning the timeliness of filings by prisoners proceeding pro se (the ‘‘prisoner mailbox rule’’).

Subdivision (a)(4) requires, in all cases in which a represented defendant files a document, that the clerk of courts make a docket entry of the defendant’s filing and place the document in the criminal case file, and then forward a copy of the document to both the attorney of record and the attorney for the Commonwealth. See Commonwealth v. Castro, 766 A.2d 1283 (Pa. Super. 2001). Compare Pa.R.A.P. 121(g) (Hybrid representation). The requirement that the clerk time stamp and make docket entries of the filings in these cases only serves to provide a record of the filing, and does not trigger any deadline nor require any response. See Rules 120 (Attorneys—Appearance and Withdrawals) and 122 (Assignment of Counsel) concerning the duration of counsel’s obligation under the rules.

Subdivision (a)(4) only applies to cases in which the defendant is represented by counsel, not cases in which the defendant is proceeding pro se.

The purpose of subdivision (a)(5) is to ensure documents raising cognizable legal issues submitted to the judge are transmitted to the clerk of courts, and does not relieve the defendant from complying with the other requirements of the rules. When a document is forwarded to the clerk from a judge, if the defendant is unrepresented, the clerk is to proceed as provided in subdivision (a)(3) and the defendant is to be treated like any other party. If the defendant is represented, the clerk is to proceed pursuant to subdivision (a)(4).

Subdivision (a)(6), titled ‘‘Unified Practice,’’ was added in 2004 to emphasize that local rules must not conflict with the statewide rules. Although this prohibition on local rules that are inconsistent with the statewide rules applies to all Criminal Rules through Rule 105 (Local Rules) and Rule of Judicial Administration 103 (Procedures for Adoption, Filing, and Publishing Rules), the reference to the specific prohibitions is included because these types of local rules have been identified by practitioners as creating significant impediments to the statewide practice of law within the unified judicial system. See the first paragraph of the Note to Pa.R.J.A. No. 103. The term ‘‘local rule’’ includes every rule, regulation, directive, policy, custom, usage, form or order of general application. See Pa.R.J.A. No. 103(d)(1).

Any local rule that requires personal appearance in addition to filing with the clerk of courts is inconsistent with this rule.

See Rule 113 (Criminal Case File and Docket Entries) for the requirements concerning the contents of the criminal case file and the minimum information to be included in the docket entries.

Subdivision (b)(1) requires that, concurrently with filing, the party must serve a copy on the court administrator. This requirement provides flexibility to accommodate the various practices for scheduling. However, it is not intended to replace the requirement that the party must file with the clerk of courts.

When a judge is assigned to a case, in addition to the requirements of subdivision (b)(1), it is suggested counsel send the judge a courtesy copy of any filings.

Under any system of scheduling, once a hearing or argument is scheduled, the court or court administrator must give notice of the hearing or argument to the parties, and a copy of the notice must be filed in the criminal case file and a docket entry made. See Rule 114(C)(2).

Although subdivision (b)(2)(iv) permits the use of assigned mailboxes for service under this rule, the Attorney General’s office never may be served by this method.

A facsimile number or an electronic address set forth on letterhead is not sufficient to authorize service by facsimile transmission or other electronic means under subdivision (b)(2)(vi). The authorization for service by facsimile transmission or other electronic means under this rule is document specific and only valid for an individual document. Counsel will have to renew the authorization for each document.

Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service’s return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

For the definition of ‘‘carrier service,’’ see Rule 103.

Subdivision (b)(4) requires the filing party to include with the document filed a certificate of service. The certificate of service should be in substantially the following form:

The provisions of this Rule 576 amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105; amended September 18, 2008, effective February 1, 2009, 38 Pa.B. 5425; amended September 21, 2012, effective November 1, 2012, 42 Pa.B. 6247; amended January 25, 2018, effective May 1, 2018, 48 Pa.B. 856; amended January 4, 2022, effective July 1, 2022, 52 Pa.B. 346. Immediately preceding text appears at serial pages (392765) to (392768) and (402523) to (402524).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 576.1 Electronic Filing and Service of Legal Papers. {#sec-rule-576.1 omnilex-key=us-pa-regs-official--title-234--Rule 576.1}

(A) The president judge of a judicial district by local rule promulgated pursuant to Rule 105 and Rule of Judicial Administration 103 may authorize electronic filing of legal papers with the clerk of courts in cases in the courts of common pleas and in the Philadelphia Municipal Court through the statewide electronic filing system as provided in this rule.

(B) Local Rule

(1) The local rule required under this rule shall include the following provisions:

(a) subject to the provisions in paragraph (B)(2), a statement that the electronic filing system is permissive and specify the legal papers subject to the rule, but in no case shall legal papers prohibited from being filed electronically by this rule be permitted to be filed electronically;

(b) a provision for the procedures to ensure that any party who declines to participate in the system, or who is unable to electronically file or accept service of legal papers which were filed electronically, or who is otherwise unable to access the system, at a minimum, shall be able to file legal papers in a physical paper format and be served legal papers in a physical format which were electronically filed;

(c) any additional provisions as the court may deem necessary to provide a full and complete procedure for the use of the system within the judicial district; and

(d) a notation that the Administrative Office of Pennsylvania Courts and the judicial district have agreed upon an implementation plan for PACFile in the judicial district.

(2) Any judicial district that authorized electronic filing for a period of two years thereafter may amend their local rule, subject to the requirements of Rule 105 and Rule of Judicial Administration 103, to make participation in electronic filing mandatory.

(C) As used in this rule, the following words shall have the following meanings:

‘‘electronic filing,’’ the electronic submission of legal papers by means other than facsimile transmission and the acceptance of the document by the clerk of courts;

‘‘filing party,’’ an attorney, defendant, or other person who files a legal paper by means of electronic filing;

‘‘legal paper,’’ a pleading or other submission to the court, including motions, answers, notices, or other documents, of which filing is required or permitted, including orders, copies of exhibits, and attachments, but excluding

(1) applications for search warrants,

(2) applications for arrest warrants,

(3) any grand jury materials, except the indicting grand jury indictment or the investigating grand jury presentment,

(4) submissions filed ex parte as authorized by law,

(5) submissions filed or authorized to be filed under seal, and

(6) exhibits offered into evidence, whether or not admitted, in a court proceeding;

‘‘original document,’’ a legal paper filed electronically shall be deemed the original document, but copies of exhibits electronically filed do not constitute the original of the exhibit for evidentiary purposes; and

‘‘the system,’’ the PACFile electronic filing system, developed and administered by the Administrative Office of Pennsylvania Courts, is the exclusive system for electronic filing.

(D) Participation

(1) The system shall permit attorneys and defendants proceeding without counsel to file electronically.

(a) In order to participate in the system, an attorney shall establish an account in the system by procedures established by the Administrative Office of Pennsylvania Courts.

(b) A defendant who is proceeding without counsel shall be permitted to utilize the system through an authorization process established by the Administrative Office of Pennsylvania Courts.

(2) Establishment of an account by an attorney or authorization of a defendant proceeding without counsel in the system, to the extent so authorized by the Administrative Office of Pennsylvania Courts pursuant to paragraph (D)(1), shall constitute consent to participate in electronic filing, including acceptance of service electronically of any document filed on the system in any judicial district that permits electronic filing.

(3) An attorney or defendant participating in the system is permitted to file a legal paper either in an electronic format or in a physical paper format. Service upon an attorney or defendant participating in the system shall be done electronically.

(E) Filing

(1) When a legal paper is to be electronically filed, it shall be submitted to the system at the Unified Judicial System web portal at http://ujsportal.pacourts.us, in accordance with this rule, any local rule adopted pursuant to this rule, and any filing instructions as may be otherwise provided at the web portal site.

(2) Electronic filings may be submitted at any time, except during times of periodic maintenance. The electronic submission must be completed by 11:59:59 p.m. EST/EDT to be considered filed that day.

(3) The time and date on which a legal paper is submitted to the system shall be recorded by the system. The system shall provide an acknowledgement to the filing party that the legal paper has been submitted.

(4) The time and date on which the legal paper is accepted by the clerk of courts office also shall be recorded by the system. The system shall provide an acknowledgement to the filing party that the legal paper has been accepted.

(5) A legal paper shall be considered filed upon submission of the legal paper to the system and acceptance of the filing by the clerk of courts. If the clerk of courts determines that the requirements for filing have been met, the time and date of filing shall be the time and date that the legal paper was sub-mitted to the system. If the clerk of courts finds that the requirements for filing are not met, the clerk may reject the filing.

(6) A filing party shall be responsible for any delay, disruption, and interruption of the electronic signals and legibility of the document electronically filed, except when caused by the failure of the system’s website.

(7) The system shall attribute the filing of an electronic legal paper to the party whose account is used to log onto the system and file the legal paper.

(8) Legal papers shall be presented for filing in portable document format (‘‘.pdf’’).

(9) All legal papers electronically filed shall be maintained and retained by the clerk of courts in an electronic format. Neither the clerk of courts nor the court is required to maintain in a physical paper format any legal paper filed electronically as provided in this rule.

(10) Any legal paper submitted for filing to the clerk of courts in a physical paper format shall be accepted by the clerk of courts in that format and shall be retained by the clerk of courts as may be required by applicable rules of court and record retention policies. The clerk of courts shall convert such legal paper in a physical paper format to .pdf and add it to the system. However, those submissions that are excluded from the definition of ‘‘legal paper’’ under paragraph (C) shall not be converted and added to the system.

(11) No legal paper that complies with the Pennsylvania Rules of Criminal Procedure shall be refused for filing by the clerk of courts or the electronic filing system based upon a requirement of a local rule or local administrative procedure or practice pertaining to the electronic filing of legal papers.

(F) Signature

(1) Except as provided in paragraph (F)(3), an electronic signature of the filer as provided for in the system is permitted on electronic filings in the following form: /s/ John L. Doe.

(2) The electronic filing of a motion or answer that includes an electronic signature constitutes a certification pursuant to Pa.R.Crim.P. 575 that the filing party or attorney has read the legal paper, that to the best of the filing party’s or attorney’s knowledge, information and belief there is good ground to support the motion or answer, and that it is not interposed for delay.

(3) Any motion that, pursuant to Rule 575(A)(2)(g), avers facts not of record and requiring a sworn affidavit must be created in a physical paper form, have a physical signature placed on it, and then be converted into a .pdf before it may be electronically filed.

(4) The original of a sworn or verified legal paper that is an electronic filing or is contained within an electronic filing shall be maintained by the electronic filer in either electronic or paper format and made available upon direction of the court or reasonable request of the signatory or opposing party.

(G) The court by local rule shall provide for the maintenance by the clerk of courts of an electronic file only, or of such electronic and physical paper format files as set forth in the local rule. Those legal papers that are not permitted to be electronically filed pursuant to paragraph (C) shall be maintained in a physical paper format only.

(H) Service

(1) Upon the submission of a legal paper for electronic filing, the system shall provide an electronic notification to other parties and attorneys to the case who are participating in electronic filing that the legal paper has been submitted. This notification upon submission shall satisfy the service requirements of Rules 114(B) and 576(b) on any attorney or party who has established a system account.

(2) Upon the acceptance by the clerk of courts office of a legal paper for electronic filing, the system shall provide an electronic notification to other parties and attorneys to the case who are participating in electronic filing that the legal paper has been accepted.

(3) Service of electronic filings on any attorney or party who has not established a UJS web portal account or who is unable to file or receive legal papers electronically or otherwise unable to access the system shall be made by the procedures provided under Rules 114(B) and 576(b).

This rule, adopted in 2018, permits as a local practice the electronic filing of legal papers. This rule does not require the implementation of electronic filing by a local court. To provide a uniform system for electronic filing, the Administrative Office of Pennsylvania Courts has developed the PACFile electronic filing system. This is the only authorized system for electronic filing of legal documents in criminal court cases in the courts of common pleas and Philadelphia Municipal Court.

Paragraph (B) requires that a judicial district that desires to participate in the electronic filing system must adopt a local rule to that effect. As part of the initial ‘‘opting into’’ electronic filing, this local rule must provide that participation is voluntary. Once a judicial district has allowed electronic filing for two years, participation may be made mandatory. Paragraph (B)(1)(b) requires that all judicial districts in which electronic filing is allowed must make accommodations for those parties who are unable to participate. In no event shall access to the court filing be precluded solely on the basis of participation in the electronic filing system.

This rule is applicable to cases in courts of record. See Rule 103 for the definition of a ‘‘court.’’

The UJS Portal contains other automated services beside PACFile. There may be circumstances when an attorney, who has registered as a user on another service of the UJS Portal, may have an established account that would be usable for PACFile. Any questions about the requirements of registration or accessibility to PACFile should be referred to the Administrative Office of Pennsylvania Courts.

The system permits a user to designate other users as proxies on individual cases. These proxies all receive notice of any filing in the case. It is anticipated that offices such as those of a district attorney or public defender would be able to establish general user accounts with particular attorneys assigned and their supervisors or back-ups listed as proxies in individual cases.

An attorney is responsible for the actions of other individuals whom the attorney authorizes to use the attorney’s account.

The local rule required by this rule must conform to the requirements of Rule 105 (Local Rules) and Rule of Judicial Administration 103 (Procedures for Adoption, Filing, and Publishing Rules).

A file in physical paper format is not required by this rule. If the local rule requires a file in physical paper format, the requirement may extend to all cases or only to certain specified cases. For example, the court may require files in physical paper format for cases listed for trial or scheduled for argument while maintaining only electronic files for all other cases.

Upon submission of the electronic filing of a legal paper, the electronic filing system shall automatically send notice of the filing to all parties who have agreed to service by electronic transmission , see paragraph (D). If the electronic filing system sends notice of such filing, the party filing the legal paper only need serve those parties who are not served by the electronic filing system. An electronic mail address set forth on letterhead is not a sufficient basis under this rule to permit electronic service of legal papers.

Nothing in this rule is intended to prohibit the use of advanced communication technology to submit an application for search warrant as provided in Rule 203(A) or to submit an application for an arrest warrant using advanced communications technology as provided in Rule 513(B)(1).

In addition to the filing fees now applicable, an online payment convenience fee for use of the PACFile system may be imposed. See 204 Pa. Code § 207.3.

See Rule 114(B) providing for the clerk of courts to serve orders and court notices by facsimile transmission or other means.

Legal papers filed electronically should be consistent with the formatting requirements of Rule 575(C).

See Rule 576(b) governing service of motions and any written answers, and any notices or documents for which filing is required by facsimile transmission or other means.

See Rule 1002, for the applicability of this rule to summary cases filed in the Philadelphia Municipal Court.

Official Note

New Rule 576.1 adopted January 25, 2018, effective May 1, 2018; amended August 3, 2020, effective October 1, 2020.

Committee Explanatory Reports:

Final Report explaining new Rule 576.1 providing for electronic filing published with the Court’s Order at 48 Pa.B. 861 (February 10, 2018).

Final Report regarding the August 3, 2020 amendments clarifying the definition of ‘‘legal papers’’ and correcting a Comment reference to the initiation of electronic service published with the Court’s Order at 50 Pa.B. 4127 (August 15, 2020).

The provisions of this Rule 576.1 adopted January 25, 2018, effective May 1, 2018, 48 Pa.B. 856; amended January 25, 2018, effective May 1, 2018, 48 Pa.B. 2759; amended August 3, 2020, effective October 1, 2020, 50 Pa.B. 4124; amended January 4, 2022, effective July 1, 2022, 52 Pa.B. 346. Immediately preceding text appears at serial pages (402524) to (402529).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 577 Procedures Following Filing of Motion. {#sec-rule-577 omnilex-key=us-pa-regs-official--title-234--Rule 577}

(A) Following the filing of a motion,

(1) if the judge determines an answer is necessary, the court may order a written answer, or it may order an oral response at the time of a hearing or argument on a motion. Any written order shall be filed, a docket entry made, and served by the clerk of courts pursuant to Rule 114(B), (C), and (D).

(2) If the judge determines the motion requires a hearing or argument, the court or the court administrator shall schedule the date and time for the hearing or argument. Pursuant to Rule 114(B)(2), notice of the date and time for the hearing or argument shall be served by the clerk of courts, unless the president judge has designated the court or court administrator to serve these notices.

(B) The judge promptly shall dispose of any motion.

(C) Unified Practice

Any local rule that is inconsistent with the provisions of this rule is prohibited, including any local rule requiring a personal appearance as a prerequisite to a determination of whether a hearing or argument is scheduled.

In all cases, the notice of the date and time of the hearing or argument must be filed and served, and docket entries made, as required by Rule 114.

Paragraph (C), titled ‘‘Unified Practice,’’ emphasizes that local rules must not conflict with the statewide rules. Although this prohibition on local rules that are inconsistent with the statewide rules applies to all criminal rules through Rule 105 (Local Rules), the reference to the specific prohibitions is included because these types of local rules have been identified by practitioners as creating significant impediments to the statewide practice of law within the unified judicial system. See the first paragraph of the Rule 105 Comment. The term ‘‘local rule’’ includes every rule, regulation, directive, policy, custom, usage, form or order of general application. See Rule 105(A).

The practice in some counties of requiring an attorney to take a motion to a judge for the scheduling of a hearing is inconsistent with this rule.

Official Note

Rule 9023 adopted October 21, 1983, effective January 1, 1984; amended June 2, 1994, effective September 1, 1994; renumbered Rule 577 and amended March 1, 2000, effective April 1, 2001; rescinded March 3, 2004, effective July 1, 2004, and replaced by Rule 576(B). New Rule 577 adopted March 3, 2004, effective July 1, 2004.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

The provisions of this Rule 577 adopted March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547.

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 578 Omnibus Pretrial Motion for Relief. {#sec-rule-578 omnilex-key=us-pa-regs-official--title-234--Rule 578}

Unless otherwise required in the interests of justice, all pretrial requests for relief shall be included in one omnibus motion.

Types of relief appropriate for the omnibus pretrial motions include the following requests:

(1) for continuance;

(2) for severance and joinder or consolidation;

(3) for suppression of evidence;

(4) for psychiatric examination;

(5) to quash or dismiss an information;

(6) for change of venue or venire;

(7) to disqualify a judge;

(8) for appointment of investigator;

(9) for pretrial conference;

(10) challenging the array of an indicting grand jury;

(11) for transfer from criminal proceedings to juvenile proceedings pursuant to 42 Pa.C.S. § 6322; and

(12) proposing or opposing the admissibility of scientific or expert evidence.

The omnibus pretrial motion rule is not intended to limit other types of motions, oral or written, made pretrial or during trial, including those traditionally called motions in limine, which may affect the admissibility of evidence or the resolution of other matters. The earliest feasible submissions and rulings on such motions are encouraged.

See Pa.R.E. 702 and 703 regarding the admissibility of scientific or expert testimony. Pa.R.E. 702 codifies Pennsylvania’s adherence to the test to determine the admissibility of expert evidence first established in Frye v. United States, 293 F.1013 (D.C. Cir. 1923) and adopted by the Pennsylvania Supreme Court in Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977). Given the potential complexity when the admissibility of such evidence is challenged, such challenges should be raised in advance of trial as part of the omnibus pretrial motion if possible. However, nothing in this rule precludes such challenges from being raised in a motion in limine when circumstances necessitate it.

All motions filed pursuant to this rule are public records. However, in addition to restrictions placed by law and rule on the disclosure of confidential information, the motions are subject to the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania and may require further precautions, such as placing certain types of information in a ‘‘Confidential Information Form’’. See Rule 113.1.

See Rule 113.1 regarding the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania and the requirements regarding filings and documents that contain confidential information.

See Rule 556.4 for challenges to the array of an indicting grand jury and for motions to dismiss an information filed after a grand jury indicts a defendant.

The provisions of this Rule 578 adopted June 21, 2012, effective in 180 days, 42 Pa.B. 4140; amended July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333; amended September 21, 2017, effective January 1, 2018, 47 Pa.B. 6173; amended January 5, 2018, effective January 6, 2018, 48 Pa.B. 487; amended June 1, 2018, effective July 1, 2018, 48 Pa.B. 3575; amended December 1, 2021, effective January 1, 2022, 51 Pa.B. 7622. Immediately preceding text appears at serial pages (402531) to (402532).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 579 Time for Omnibus Pretrial Motion and Service. {#sec-rule-579 omnilex-key=us-pa-regs-official--title-234--Rule 579}

(A) Except as otherwise provided in these rules, the omnibus pretrial motion for relief shall be filed and served within 30 days after arraignment, unless opportunity therefor did not exist, or the defendant or defense attorney, or the attorney for the Commonwealth, was not aware of the grounds for the motion, or unless the time for filing has been extended by the court for cause shown.

(B) Copies of all pretrial motions shall be served in accordance with Rule 576.

Contemplated within the concept of cause shown is a finding by the court that discovery has not been completed, or a bill of particulars has not been furnished, or that contested motions for discovery or for a bill of particulars are pending. ‘‘Arraignment’’ for purposes of this rule also means any proceeding held in lieu of arraignment in accordance with local rule, as permitted under Rule 571. This rule is not intended to preclude the filing by any party of a motion prior to arraignment when circumstances necessitate such a motion and when otherwise not precluded by rule or by law.

For general requirements concerning the filing and service of motions, notices, and other documents by parties, see Rule 576.

Official Note

Formerly Rule 305 adopted June 30, 1964, effective January 1, 1965; renumbered Rule 307 and amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; amended October 21, 1983, effective January 1, 1984; renumbered Rule 579 and amended March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004.

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 March 3, 2004 amendments updating the cross-references correlative to the March 3, 2004 changes to the motions rules published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

The provisions of this Rule 579 amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547. Immediately preceeding text appears at serial page (264289).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 580 Disposition of Pretrial Motions. {#sec-rule-580 omnilex-key=us-pa-regs-official--title-234--Rule 580}

Unless otherwise provided in these rules, all pretrial motions shall be determined before trial. Trial shall be postponed by the court for the determination of pretrial motions, if necessary.

See Rule 587(b) for the procedures for motions to dismiss on double jeopardy grounds.

Official Note

Rule 309 adopted June 30, 1964, effective January 1, 1965; renumbered Rule 310 June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978 ; renumbered Rule 580 March 1, 2000, effective April 1, 2001; Comment revised June 4, 2013, effective July 4, 2013.

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. 1478 (March 18, 2000).

Final Report explaining the June 4, 2013 revision of the Comment adding a citation to Rule 587 concerning motions to dismiss on double jeopardy grounds published with the Court’s Order at 43 Pa.B. 3331 (June 22, 2013).

The provisions of this Rule 580 amended June 4, 2013, effective July 4, 2013, 43 Pa.B. 3330; amended January 4, 2022, effective July 1, 2022, 52 Pa.B. 346. Immediately preceding text appears at serial page (407918).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 581 Suppression of Evidence. {#sec-rule-581 omnilex-key=us-pa-regs-official--title-234--Rule 581}

(A) The defendant’s attorney, or the defendent if unrepresented, may make a motion to the court to suppress any evidence alleged to have been obtained in violation of the defendant’s rights.

(B) Unless the opportunity did not previously exist, or the interests of justice otherwise require, such motion shall be made only after a case has been returned to court and shall be contained in the omnibus pretrial motion set forth in Rule 578. If timely motion is not made hereunder, the issue of suppression of such evidence shall be deemed to be waived.

(C) Such motion shall be made to the court of the county in which the prosecution is pending.

(D) The motion shall state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof.

(E) A hearing shall be scheduled in accordance with Rule 577 (Procedures Following Filing of Motion). A hearing may be either prior to or at trial, and shall afford the attorney for the Commonwealth a reasonable opportunity for investigation. The judge shall enter such interim order as may be appropriate in the interests of justice and the expeditious disposition of criminal cases.

(F) The hearing, either before or at trial, ordinarily shall be held in open court. The hearing shall be held outside the presence of the jury. In all cases, the court may make such order concerning publicity of the proceedings as it deems appropriate under Rules 110 and 111.

(G) A record shall be made of all evidence adduced at the hearing.

(H) The Commonwealth shall have the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant’s rights. The defendant may testify at such hearing, and if the defendant does testify, the defendant does not thereby waive the right to remain silent during trial.

(I) At the conclusion of the hearing, the judge shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights, or in violation of these rules or any statute, and shall make an order granting or denying the relief sought.

(J) If the court determines that the evidence shall not be suppressed, such determination shall be final, conclusive, and binding at trial, except upon a showing of evidence which was theretofore unavailable, but nothing herein shall prevent a defendant from opposing such evidence at trial upon any ground except its suppressibility.

The rule is designed to provide one single procedure for the suppression of evidence alleged to have been obtained in violation of the defendant’s rights. The first revision of this rule extended its coverage to violation of the fourth, fifth, and sixth amendments of the Constitution of the United States; such as those proscribed by Mapp v. Ohio, 367 U. S. 643, 81 S.Ct. 1684 (1961); Escobedo v. Illinois, 378 U. S. 478, 84 S.Ct. 1758 (1964); Jackson v. Denno, 378 U. S. 368, 84 S.Ct. 1774 (1964); Miranda v. Arizona, 384 U. S. 436, 86 S.Ct. 1602 (1966); United States v. Wade, 388 U. S. 218, 87 S.Ct. 1926 (1967); and Gilbert v. California, 388 U. S. 263, 87 S.Ct. 1951 (1967). Later Pennsylvania cases such as Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), sanctioned the use of Rule 581 to test certain violations of Pennsylvania Rules of Criminal Procedure; however, Commonwealth v. Murphy, 459 Pa. 297, 328 A.2d 842 (1974), questioned whether the rule in its earlier form permitted such a challenge. The rule was therefore further revised in 1977 to permit use of the suppression motion to test admissibility of evidence where the issue is the method by which the evidence was obtained. The rule merely provides a vehicle by which the court may determine the issues involved and sets the time at which the application is to be made. The rule and the 1977 revision do not purport to define or expand the basis on which suppression may be had. There is no longer a multi-county provision for suppression hearings because it is the opinion of the Committee that the prosecution county is the most interested forum for determining the admissibility of challenged evidence. In addition, the order of the judge determining admissibility is to be final and binding at trial, absent newly discovered and hitherto undiscoverable evidence.

It should be noted that failure to file the motion within the appropriate time limit constitutes a waiver of the right to suppress. However, once the motion is timely filed, the hearing may be held at any time prior to or at trial.

All motions to supress must comply with the provisions of Rule 575 (Motions and Answers) and Rule 576 (Filing and Service by Parties).

In all cases, the burden of production is now upon the Commonwealth. See Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). The burden of persuasion is there as well. See Miranda v. Arizona, 384 U. S. 436, 479, 86 S.Ct. 1602, 1630 (1966). See also, Commonwealth ex rel. Butler v. Rundle, supra., which establishes a preponderance of the evidence as the standard of proof.

With regard to the recording and transcribing of the evidence adduced at the hearing, see Rule 115.

Formerly, the law provided that a suppression hearing would be held in camera on motion of the defendant. Recently, however, developments in the law have established minimum constitutional requirements that are to be met before a court may order any criminal proceeding closed.

The law on closure of criminal proceedings is still developing. The 1985 amendments, therefore, are intended to remove the possibility that the rule will be mistaken to imply that the defendant has an absolute right to closure of a suppression hearing. It is intended that a suppression hearing will be held in open court unless the court orders all or part of the hearing closed in accordance with the existing case law. See, e.g., United States v. Criden, 675 F.2d 550 (3d Cir. 1982); Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980); Commonwealth v. Buehl, 316 Pa.Super. 215, 462 A.2d 1316 (1983), in which the courts recognized the public’s general constitutional right to access to criminal proceedings, which right is to be balanced with the defendant’s constitutional right to a fair trial. With regard to a court ordering part of a criminal proceeding closed, see Commonwealth v. Contakos, 499 Pa. 340, 453 A.2d 578 (1982), in which a new trial was ordered because the public had been excluded from a portion of the trial although the press was present.

In all cases it is the continuing duty of the trial court to guard against public disclosure of prejudicial matters by invoking Rules 110 and 111.

In Commonwealth v. Millner, 585 Pa. 237, 888 A.2d 680 (2005), the Court reiterated the importance of a specific and contemporaneous announcement of findings of fact and conclusions of law at the conclusion of the suppression hearing.

Paragraph (J) does not change the Massachusetts or ‘‘humane’’ rule (whereby a defendant may raise the issue of voluntariness of a confession to the jury following denial of a motion to suppress) which is followed in the Commonwealth.

Official Note

Rule 323 adopted March 15, 1965, effective September 15, 1965; amended November 25, 1968, effective February 3, 1969. The 1968 amendment, suspended, amended, and consolidated former Rules 323, 324, 2000 and 2001 of the Pennsylvania Rules of Criminal Procedure. This was done in accordance with Section 1 of the Act of July 11, 1957, P. L. 819, 17 P. S. § 2084. Paragraph (f) amended March 18, 1972, effective immediately; amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; paragraphs (f) and (g) and Comment amended September 23, 1985, effective January 1, 1986; effective date extended to July 1, 1986; renumbered Rule 581 and amended March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004; Comment revised November 2, 2007, effective February 1, 2008.

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 March 3, 2004 amendments to paragraphs (A) and (E) and the revision to the Comment adding the reference to Rules 575 and 576 published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

Final Report explaining the November 2, 2007 revisions to the Comment regarding the requirement for the judge to make findings of fact and conclusions of law at the conclusion of the suppression hearing published with the Court’s Order at 37 Pa.B. 6204 (November 24, 2007).

The provisions of this Rule 581 amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended November 2, 2007, effective February 1, 2008, 37 Pa.B. 6203. Immediately preceeding text appears at serial pages (303683) to (303686).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 582 Joinder—Trial of Separate Indictments or Informations. {#sec-rule-582 omnilex-key=us-pa-regs-official--title-234--Rule 582}

(A) STANDARDS

(1) Offenses charged in separate indictments or informations may be tried together if:

(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or

(b) the offenses charged are based on the same act or transaction.

(2) Defendants charged in separate indictments or informations may be tried together if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.

(B) PROCEDURE

(1) Notice that offenses or defendants charged in separate indictments or informations will be tried together shall be in writing and filed with the clerk of courts. A copy of the notice shall be served on the defendant at or before arraignment.

(2) When notice has not been given under paragraph (B)(1), any party may move to consolidate for trial separate indictments or informations, which motion must ordinarily be included in the omnibus pretrial motion.

Ordinarily offenses or defendants charged in separate indictments or informations will be tried separately. Under the scheme set forth in this rule, it can be assumed that offenses charged in the same indictment or information will be tried together. See Rule 563. Similarly, offenses or defendants will be tried together if written notice is served pursuant to paragraph (B)(1) of this rule. In these situations, the court may order separate trials either when the standards in paragraph (A) are not met or pursuant to Rule 583. Absent joinder in the same indictment or information or absent written notice pursuant to paragraph (B)(1), a motion for consolidation is required under paragraph (B)(2). A party may oppose such a motion either on the ground that the standards in paragraph (A) are not met, or pursuant to Rule 583.

Paragraph (A)(1)(a) is based upon Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981). Paragraph (A)(1)(b) is based upon statutory and case law that, ordinarily, if all offenses arising from the same criminal episode or transaction are not tried together, subsequent prosecution on any such offense not already tried may be barred. See the Crimes Code, 18 Pa.C.S. § § 109—110; Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U. S. 808 (1973), addendum opinion on remand, 455 Pa. 622, 314 A.2d 854 (1974); Commonwealth v. Tarver, 467 Pa. 401, 357 A.2d 539 (1976). The court has also held that a defendant’s failure to move for consolidation does not ordinarily constitute a waiver of an objection to a subsequent, separate trial of any such offense. See, e.g., Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 (1981).

See Rule 571 concerning arraignment procedures.

Although most references to indictments and indicting grand juries were deleted from these rules in 1993 since the indicting grand jury was abolished in all counties (see PA. CONST. art. I, § 10 and 42 Pa.C.S. § 8931(b)), the reference was retained in paragraphs (A) and (B) of this rule because there may be some cases still pending that were instituted under the former indicting grand jury rules prior to the abolition of the indicting grand jury in 1993. These references to ‘‘indictment’’ do not apply in the context of an indicting grand jury convened pursuant to the new indicting grand jury procedures adopted in 2012 in which an information would be filed after a grand jury indicts a defendant. See Rules 103 and 556.11.

Official Note

Rule 1127 adopted December 11, 1981, effective July 1, 1982; amended August 12, 1993, effective September 1, 1993; amended August 14, 1995, effective January 1, 1996; renumbered Rule 582 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; Comment revised June 21, 2012, effective in 180 days.

Committee Explanatory Reports:

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

Final Report explaining the August 14, 1995 changes published with the Court’s Order at 25 Pa.B. 3471 (August 26, 1995).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the May 10, 2002 amendments to paragraph (B) published with the Court’s Order at 32 Pa.B. 2591 (May 25, 2002).

Final Report explaining the June 21, 2012 revision of the last paragraph of the Comment concerning the abolition of the indicting grand jury published with the Court’s Order at 42 Pa.B. 4153 (July 7, 2012).

Provisions of this Rule 582 amended May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended June 21, 2012, effective in 180 days, 42 Pa.B. 4140. Immediately preceding text appears at serial pages (331728) and (303687).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 583 Severance of Offenses or Defendants. {#sec-rule-583 omnilex-key=us-pa-regs-official--title-234--Rule 583}

The court may order separate trials of offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.

This rule provides the procedure whereby the court may, because of prejudice to a party, order separate trials of offenses or defendants that otherwise would be properly tried together under Rule 582. A defendant may also request severance of offenses or defendants on the ground that trying them together would be improper under Rule 582.

Under Rule 578 (Omnibus Pretrial Motion for Relief), any request for severance must ordinarily be made in the omnibus pretrial motion or it is considered waived unless a later filing is permitted under the exceptions enumerated in Rule 579. See Rules 578 and 579.

Official Note

Rule 1128 adopted December 11, 1981, effective July 1, 1982; renumbered Rule 583 and amended March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 584 Motion for Change of Venue or Change of Venire. {#sec-rule-584 omnilex-key=us-pa-regs-official--title-234--Rule 584}

(A) All motions for change of venue or for change of venire shall be made to the court in which the case is currently pending. Venue or venire may be changed by that court when it is determined after hearing that a fair and impartial trial cannot otherwise be had in the county where the case is currently pending.

(B) An order for change of venue or venire shall be certified forthwith to the Supreme Court. The Supreme Court shall designate and notify the county of transfer or the county from which the jury is to be impanelled. Unless otherwise ordered by the Supreme Court, a judge from the county in which the complaint was filed shall preside over all proceedings in the trial court.

(C) Whenever a change of venue has been ordered, the docket entries and all original papers in the proceedings shall be certified and transmitted to the clerk of courts of the county of transfer immediately prior to trial.

(D) Whenever a change of venire has been ordered, the jury shall be summoned, selected, and impanelled in the designated county of impanelment. The trial judge shall conduct the voir dire, unless otherwise ordered by the Supreme Court. The jury shall be transported to the county of the court where the case is currently pending.

(E) All costs accruing from a change of venue or from a change or venire shall be paid by the county in which the complaint was filed.

As used in paragraph (A) of this rule, ‘‘court in which the case is currently pending’’ and ‘‘county where the case is currently pending’’ will ordinarily refer to the court or the county in which the complaint was filed. However, when a change of venue has been previously ordered, the case would be considered pending in the court or the county to which the case had been transferred.

Ordinarily, a judge from the county in which the complaint was filed will be the trial judge and in change of venue cases will proceed with the case to the county of transfer. However, it is contemplated that the Supreme Court may assign a different trial judge when it determines that the particular circumstances of the case require such a change.

‘‘Proceedings in the trial court,’’ as used in paragraph (B), is intended to include, but is not limited to, voir dire in the county of impanelment and pretrial, post-verdict, and post-sentence matters in the trial court, as well as the trial.

Under this rule, the trial judge may sit to handle pretrial matters either in the county in which the complaint was filed or in the county of transfer. In deciding in which court the trail judge will sit to handle these matters, the following points, at a minimum, should be considered: (1) the potential cost and inconvenience of transporting the witnesses, parties, and counsel; (2) the possibility that the pretrial matters will result in prejudicial publicity which could taint the trial proceedings; (3) the type of pretrial matter and the relationship between it and the reasons for changing venue; and (4) the time of filing the pretrial matter.

As used in this rule, ‘‘change of venire’’ is intended to refer to the summoning, selecting, and impaneling of a jury in a county other than the one in which the trial is to be held, and the jury’s transportation to the county of trial, pursuant to an order entered under Section 8702 of the Judicial Code, 42 Pa.C.S. § 8702. A change of venire in the first instance would also dictate that the trial court consider the need to sequester the jury.

Paragraph (E), which prior to the 1981 amendment of this rule was the last sentence of paragraph (B), is merely a restatement of the cost allocation procedures in change of venue cases and also applies to cases in which a change of venire has been ordered. No change in procedure from the previous version is intended.

Official Note

Rule 313 adopted June 30, 1964, effective January 1, 1965; Comment added June 28, 1976, effective July 1, 1976; renumbered Rule 312, and amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; amended December 11, 1981, effective July 1, 1982; renumbered Rule 584 and amended March 1, 2000, effective April 1, 2001; amended September 21, 2012, effective November 1, 2012.

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. 1478 (March 18, 2000).

Final Report explaining the September 21, 2012 amendment correcting a typographical error in paragraph (A) published with the Court’s Order at 42 Pa.B. 6251 (October 6, 2012).

The provisions of this Rule 584 amended September 21, 2012, effective November 1, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361887) to (361888).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 585 Nolle Prosequi. {#sec-rule-585 omnilex-key=us-pa-regs-official--title-234--Rule 585}

(A) Upon motion of the attorney for the Commonwealth, the court may, in open court, order a nolle prosequi of one or more charges notwithstanding the objection of any person.

(B) Upon a nolle prosequi, costs may be imposed as the court may direct.

Section 8932 of the Judicial Code, 42 Pa.C.S. § 8932, prohibits the district attorney from entering a nolle prosequi without court approval at any time after the filing of an information.

Before an information is filed, the attorney for the Commonwealth may withdraw one or more of the charges by filing a notice of withdrawal with the clerk of courts. See Rule 561(A). Upon the filing of an information, any charge in the complaint not listed on the information will be deemed withdrawn by the attorney for the Commonwealth. See Rule 561(B). After the information is filed, court approval is required before a nolle prosequi may be entered on a charge listed therein. See 42 Pa.C.S. § 8932.

In any case in which a summary offense is joined with a misdemeanor, felony, or murder charge: (1) the judge may order a nolle prosequi on all the charges including the summary offense; and (2) if the judge has ordered a nolle prosequi on all the misdemeanor, felony, or murder charges pursuant to this rule, the judge may not remand the summary offense to the issuing authority for disposition, but must dispose of the summary offense in the court of common pleas as required by Rule 589 (Pretrial Disposition of Summary Offenses Joined With Misdemeanor, Felony, or Murder Charges).

Official Note

Rule 314 adopted June 30, 1964, effective January 1, 1965; Comment revised February 15, 1974, effective immediately; renumbered Rule 313 and Comment revised June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; Comment revised January 28, 1983, effective July 1, 1983; amended August 12, 1993, effective September 1, 1993; amended August 14, 1995, effective January 1, 1996; renumbered Rule 585 and amended March 1, 2000, effective April 1, 2001; Comment revised March 9, 2006, effective September 1, 2006.

Committee Explanatory Reports:

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

Final Report explaining the August 14, 1995 amendments published with the Court’s Order at 25 Pa.B. 3468 (August 26, 1995).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 3, 2006 Comment revision concerning joinder of summary offenses with misdemeanor, felony, or murder charges published with the Court’s Order at 36 Pa.B. 1392 (March 25, 2006).

The provisions of this Rule 585 amended March 9, 2006, effective September 1, 2006, 36 Pa.B. 1390. Immediately preceding text appears at serial pages (303689) to (303690).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 586 Court Dismissal Upon Satisfaction or Agreement. {#sec-rule-586 omnilex-key=us-pa-regs-official--title-234--Rule 586}

When a defendant is charged with an offense which is not alleged to have been committed by force or violence or threat thereof, the court may order the case to be dismissed upon motion and a showing that:

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

(2) the attorney for the Commonwealth consents to the dismissal; and

(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.

This rule applies only to courts of common pleas. Neither magisterial district judges, Philadelphia Municipal Court judges, nor any other issuing authority may dismiss a case under this rule, but rather only as provided in Rule 546.

This rule sets forth concisely the criteria a defendant must satisfy before the court has the discretion to order dismissal under this rule.

If a summary offense is joined with a misdemeanor, felony, or murder charge, and therefore is part of the court case, a dismissal of the case pursuant to this rule may include a dismissal of the summary offense. See the Comment to Rule 502 (Instituting Proceedings in Court Cases).

Official Note

Rule 315 adopted June 30, 1964, effective January 1, 1965; amended September 18, 1973, effective January 1, 1974; renumbered Rule 314 and amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; amended January 28, 1983, effective July 1, 1983; renumbered Rule 586 and amended March 1, 2000, effective April 1, 2001; Comment revised March 9, 2006, effective September 1, 2006.

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. 1478 (March 18, 2000).

Final Report explaining the March 3, 2006 Comment revision concerning joinder of summary offenses with misdemeanor, felony, or murder charges published with the Court’s Order at 36 Pa.B. 1392 (March 25, 2006).

The provisions of this Rule 586 amended March 9, 2006, effective September 1, 2006, 36 Pa.B. 1390. Immediately preceding text appears at serial page (303690).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 587 Motion for Dismissal. {#sec-rule-587 omnilex-key=us-pa-regs-official--title-234--Rule 587}

(a) Untimely Filing of Information.

(1) Upon motion and a showing that an information has not been filed within a reasonable time, the court may order dismissal of the prosecution, or in lieu thereof, make such other order as shall be appropriate in the interests of justice.

(2) The attorney for the Commonwealth shall be afforded an opportunity to respond.

(b) Double Jeopardy.

(1) A motion to dismiss on double jeopardy grounds shall state specifically and with particularity the basis for the claim of double jeopardy and the facts that support the claim.

(2) A hearing on the motion shall be scheduled in accordance with Rule 577 (Procedures Following Filing of Motion). The hearing shall be conducted on the record in open court.

(3) At the conclusion of the hearing, the judge shall enter on the record a statement of findings of fact and conclusions of law and shall issue an order granting or denying the motion.

(4) In a case in which the judge denies the motion, the findings of fact shall include a specific finding as to frivolousness.

(5) If the judge makes a finding that the motion is frivolous, the judge shall advise the defendant on the record that a defendant has a right to file a petition for review of that determination pursuant to Pa.R.A.P. 1311(a)(3) within 30 days of the order denying the motion.

(6) If the judge denies the motion but does not find it frivolous, the judge shall advise the defendant on the record that the denial is immediately appealable as a collateral order.

Cf. Pa.R.J.A. 1901 concerning termination of inactive cases.

A motion filed pursuant to this rule must comply with the provisions of Rule 575 (Motions and Answers) and Rule 576 (Filing and Service by Parties).

In any case in which a summary offense is joined with a misdemeanor, felony, or murder charge, and therefore is part of the court case, a dismissal of the prosecution pursuant to subdivision (a)(1) would include the dismissal of the summary offense. See the Comment to Rule 502 (Instituting Proceedings in Court Cases).

‘‘Hearing,’’ as used in subdivision (b)(2) includes the taking of testimony, or the hearing of argument, or both. See Rule 115 for the procedures for the recording and transcribing of the hearing.

Subdivision (b)(4) requires the judge to make a specific finding whether the motion is being dismissed as frivolous. The judge should expressly cite on-point controlling case law that would make the claim frivolous. See, e.g., Commonwealth v. Gains, 556 A.2d 870, 874 (Pa. Super. 1989) (‘‘A frivolous claim is a claim clearly and palpably without merit; it is a claim which presents no debatable question.’’). A mere adverse decision of the case does not mean the matter is frivolous.

Although the judge is required to advise the defendant of his or her appellate rights in subdivisions (b)(5) and (b)(6) upon dismissing the motion, nothing in this rule is intended to preclude the defendant from proceeding to trial without first appealing the double jeopardy question. See, e.g., Commonwealth v. Lee, 416 A.2d 503, 504-05 (Pa. 1980) (‘‘Unquestionably, appellant could have sought immediate appellate review of the question involved. For whatever reason, however, appellant proceeded to trial without first appealing the double jeopardy question. We believe that a defendant may choose to proceed to trial and if convicted, still challenge the propriety of the pretrial motion to dismiss on double jeopardy grounds on appeal.’’ (footnote omitted)).

For the procedures for challenging the denial of the motion to dismiss on double jeopardy grounds when the judge makes a finding that the motion is frivolous, see Pa.R.A.P. 1311(a)(3).

Pursuant to Pa.R.A.P. 1701(d), the filing of a petition for review does not affect the judge’s power to proceed further in the case while the petition for review is pending.

The provisions of this Rule 587 amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended March 9, 2006, effective September 1, 2006, 36 Pa.B. 1385; amended June 4, 2013, effective July 4, 2013, 43 Pa.B. 3330; amended January 4, 2022, effective July 1, 2022, 52 Pa.B. 346. Immediately preceeding text appears at serial pages (392298) and (390271) to (390272).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 588 Motion for Return of Property. {#sec-rule-588 omnilex-key=us-pa-regs-official--title-234--Rule 588}

(A) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.

(B) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.

(C) A motion to suppress evidence under Rule 581 may be joined with a motion under this rule.

A motion for the return of property should not be confused with a motion for the suppression of evidence, governed by Rule 581. However, if the time and effect of a motion brought under the instant rule would be, in the view of the judge hearing the motion, substantially the same as a motion for suppression of evidence, the judge may dispose of the motion in accordance with Rule 581.

Official Note

Rule 324 adopted October 17, 1973, effective 60 days hence; amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; renumbered Rule 588 and amended March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 589 Pretrial Disposition of Summary Offenses Joined with Misdemeanor, Felony, or Murder Charges. {#sec-rule-589 omnilex-key=us-pa-regs-official--title-234--Rule 589}

(A) In any case in which a summary offense is joined with a misdemeanor, felony, or murder charge, and therefore is part of the court case, when there is a dismissal of all misdemeanor, felony, and murder charges, unless the Commonwealth appeals the disposition, the trial judge shall dispose of the summary offense.

(B) In any case in which all the misdemeanor, felony, and murder charges are withdrawn pursuant to Rule 561, any remaining summary offenses shall be disposed of in the court of common pleas.

In any case in which a summary offense is joined with a misdemeanor, felony, or murder charge, and therefore is part of the court case, when an appeal of a pretrial disposition of the misdemeanor, felony, or murder charge is taken, disposition of the summary offense should be delayed pending the appeal. See Rules of Appellate Procedure 311 (Interlocutory Appeals as of Right), 903 (Time for Appeal), and 1701 (Effect of Appeal Generally).

Notwithstanding the provisions of this rule, a dismissal of the prosecution pursuant to Rule 586 (Court Dismissal Upon Satisfaction or Agreement) may include the dismissal of the summary offense.

For the procedures for nolle prosequi see Rule 585 (Nolle Prosequi).

Official Note

Adopted March 9, 2006, effective September 1, 2006; amended February 12, 2010, effective April 1, 2010.

Committee Explanatory Reports:

Final Report explaining the new rule published with the Court’s Order at 36 Pa.B. 1385 (March 25, 2006).

Final Report explaining the February 12, 2010 amendments to paragraph (B) concerning the disposition of summary offenses at the court of common pleas published with the Court’s Order at 40 Pa.B. 1068 (February 27, 2010).

The provisions of this Rule 589 adopted March 9, 2006, effective September 1, 2006, 36 Pa.B. 1385; amended February 12, 2010, effective April 1, 2010, 40 Pa.B. 1068. Immediately preceding text appears at serial pages (347928) and (338919).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 590 Pleas and Plea Agreements. {#sec-rule-590 omnilex-key=us-pa-regs-official--title-234--Rule 590}

(A) GENERALLY.

(1) Pleas shall be taken in open court.

(2) A defendant may plead not guilty, guilty, or, with the consent of the judge, nolo contendere. If the defendant refuses to plead, the judge shall enter a plea of not guilty on the defendant’s behalf.

(3) The judge may refuse to accept a plea of guilty or nolo contendere, and shall not accept it unless the judge determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record.

(B) PLEA AGREEMENTS.

(1) At any time prior to the verdict, when counsel for both sides have arrived at a plea agreement, they shall state on the record in open court, in the presence of the defendant, the terms of the agreement, unless the judge orders, for good cause shown and with the consent of the defendant, counsel for the defendant, and the attorney for the Commonwealth, that specific conditions in the agreement be placed on the record in camera and the record sealed.

(2) The judge shall conduct a separate inquiry of the defendant on the record to determine whether the defendant understands and voluntarily accepts the terms of the plea agreement on which the guilty plea or plea of nolo contendere is based.

(3) Any local rule that is inconsistent with the provisions of this rule is prohibited, including any local rule mandating deadline dates for the acceptance of a plea entered pursuant to a plea agreement.

(C) MURDER CASES.

In cases in which the imposition of a sentence of death is not authorized, when a defendant enters a plea of guilty or nolo contendere to a charge of murder generally, the degree of guilt shall be determined by a jury unless the attorney for the Commonwealth elects to have the judge, before whom the plea was entered, alone determine the degree of guilt.

The purpose of paragraph (A)(2) is to codify the requirement that the judge, on the record, ascertain from the defendant that the guilty plea or plea of nolo contendere is voluntarily and understandingly tendered. On the mandatory nature of this practice, see Commonwealth v. Ingram, 316 A.2d 77 (Pa. 1974); Commonwealth v. Campbell, 304 A.2d 121 (Pa. 1973); Commonwealth v. Jackson, 299 A.2d 209 (Pa. 1973).

It is difficult to formulate a comprehensive list of questions a judge must ask of a defendant in determining whether the judge should accept the plea of guilty or a plea of nolo contendere. Court decisions may add areas to be encompassed in determining whether the defendant understands the full impact and consequences of the plea, but is nevertheless willing to enter that plea. At a minimum the judge should ask questions to elicit the following information:

(1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he or she has the right to trial by jury?

(4) Does the defendant understand that he or she is presumed innocent until found guilty?

(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

(7) Does the defendant understand that the Commonwealth has a right to have a jury decide the degree of guilt if the defendant pleads guilty to murder generally?

The Court in Commonwealth v. Willis, 369 A.2d 1189 (Pa. 1977), and Commonwealth v. Dilbeck, 353 A.2d 824 (Pa. 1976), mandated that, during a guilty plea colloquy, judges must elicit the information set forth in paragraphs (1) through (6) above. In 2008, the Court added paragraph (7) to the list of areas of inquiry.

Many, though not all, of the areas to be covered by such questions are set forth in a footnote to the Court’s opinion in Commonwealth v. Martin, 282 A.2d 241, 244-245 (Pa. 1971), in which the colloquy conducted by the trial judge is cited with approval. See also Commonwealth v. Minor, 356 A.2d 346 (Pa. 1976), and Commonwealth v. Ingram, 316 A.2d 77 (Pa. 1974). As to the requirement that the judge ascertain that there is a factual basis for the plea, see Commonwealth v. Maddox, 300 A.2d 503 (Pa. 1973) and Commonwealth v. Jackson, 299 A.2d 209 (Pa. 1973).

It is advisable that the judge conduct the examination of the defendant. However, paragraph (A) does not prevent defense counsel or the attorney for the Commonwealth from conducting part or all of the examination of the defendant, as permitted by the judge. In addition, nothing in the rule would preclude the use of a written colloquy that is read, completed, signed by the defendant, and made part of the record of the plea proceedings. This written colloquy would have to be supplemented by some on-the-record oral examination. Its use would not, of course, change any other requirements of law, including these rules, regarding the prerequisites of a valid guilty plea or plea of nolo contendere.

The ‘‘terms’’ of the plea agreement, referred to in paragraph (B)(1), frequently involve the attorney for the Commonwealth—in exchange for the defendant’s plea of guilty or nolo contendere, and perhaps for the defendant’s promise to cooperate with law enforcement officials—promising concessions such as a reduction of a charge to a less serious offense, the dropping of one or more additional charges, a recommendation of a lenient sentence, or a combination of these. In any event, paragraph (B) is intended to insure that all terms of the agreement are openly acknowledged for the judge’s assessment. See, e.g., Commonwealth v. Wilkins, 277 A.2d 341 (Pa. 1971).

The 1995 amendment deleting former paragraph (B)(1) eliminates the absolute prohibition against any judicial involvement in plea discussions in order to align the rule with the realities of current practice. For example, the rule now permits a judge to inquire of defense counsel and the attorney for the Commonwealth whether there has been any discussion of a plea agreement, or to give counsel, when requested, a reasonable period of time to conduct such a discussion. Nothing in this rule, however, is intended to permit a judge to suggest to a defendant, defense counsel, or the attorney for the Commonwealth, that a plea agreement should be negotiated or accepted.

Paragraph (B)(1) was amended and paragraph (B)(3) was added in 2018 to clarify that the intent of this rule is that a plea made pursuant to an agreement may be entered any time prior to verdict. Any local rule that places a time limit for the entry of such pleas prior to verdict is in conflict with this rule and therefore invalid.

Under paragraph (B)(1), upon request and with the consent of the parties, a judge may, as permitted by law, order that the specific conditions of a plea agreement be placed on the record in camera and that portion of the record sealed. Such a procedure does not in any way eliminate the obligation of the attorney for the Commonwealth to comply in a timely manner with Rule 573 and the constitutional mandates of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Similarly, the attorney for the Commonwealth is responsible for notifying the cooperating defendant that the specific conditions to which the defendant agreed will be disclosed to third parties within a specified time period, and should afford the cooperating defendant an opportunity to object to the unsealing of the record or to any other form of disclosure.

When a guilty plea, or plea of nolo contendere, includes a plea agreement, the 1995 amendment to paragraph (B)(2) requires that the judge conduct a separate inquiry on the record to determine that the defendant understands and accepts the terms of the plea agreement. See Commonwealth v. Porreca, 595 A.2d 23 (Pa. 1991).

Former paragraph (B)(3) was deleted in 1995 for two reasons. The first sentence merely reiterated an earlier provision in the rule. See paragraph (A)(3). The second sentence concerning the withdrawal of a guilty plea was deleted to eliminate the confusion being generated when that provision was read in conjunction with Rule 591. As provided in Rule 591, it is a matter of judicial discretion and case law whether to permit or direct a guilty plea or plea of nolo contendere to be withdrawn. See also Commonwealth v. Porreca, 595 A.2d 23 (Pa. 1991) (the terms of a plea agreement may determine a defendant’s right to withdraw a guilty plea).

For the procedures governing the withdrawal of a plea of guilty or nolo contendere, see Rule 591.

For the procedures concerning sentences that include restitution in court cases, see Rule 705.1.

Paragraph (C) reflects a change in Pennsylvania practice, that formerly required the judge to convene a panel of three judges to determine the degree of guilt in murder cases in which the imposition of a sentence of death was not statutorily authorized. The 2008 amendment to paragraph (C) and the Comment recognizes the Commonwealth’s right to have a jury determine the degree of guilt following a plea of guilty to murder generally. See Article I, § 6 of the Pennsylvania Constitution that provides that ‘‘the Commonwealth shall have the same right to trial by jury as does the accused.’’ See also Commonwealth v. White, 910 A.2d 648 (Pa. 2006).

Official Note

Rule 319 (a) adopted June 30, 1964, effective January 1, 1965; amended November 18, 1968, effective February 3, 1969; paragraph (b) adopted and title of rule amended October 3, 1972, effective 30 days hence; specific areas of inquiry in Comment deleted in 1972 amendment, reinstated in revised form March 28, 1973, effective immediately; amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; paragraph (c) added and Comment revised May 22, 1978, effective July 1, 1978; Comment revised November 9, 1984, effective January 2, 1985; amended December 22, 1995, effective July 1, 1996; amended July 15, 1999, effective January 1, 2000; renumbered Rule 590 and Comment revised March 1, 2000, effective April 1, 2001; amended September 18, 2008, effective November 1, 2008; Comment revised March 9, 2016, effective July 1, 2016; amended January 18, 2018, effective April 1, 2018.

Committee Explanatory Reports:

Final Report explaining the December 22, 1995 amendments published with the Court’s Order at 26 Pa.B. 8 (January 6, 1996).

Final Report explaining the July 15, 1999 changes concerning references to nolo contendere pleas and cross-referencing Rule 320 published with the Court’s Order at 29 Pa.B. 4057 (July 31, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the September 18, 2008 amendments to paragraph (C) concerning juries determining degree of guilt published with the Court’s Order at 38 Pa.B. 5431 (October 4, 2008).

Final Report explaining the March 9, 2016 Comment revision concerning the Rule 705.1 restitution procedures published with the Court’s Order at 46 Pa.B. 1540 (March 26, 2016).

Final Report explaining the January 18, 2018 amendments concerning plea agreement deadlines published with the Court’s Order at 48 Pa.B. 730 (February 3, 2018).

The provisions of this Rule 590 amended September 18, 2008, effective November 1, 2008, 38 Pa.B. 5429; amended March 9, 2016, effective July 1, 2016, 46 Pa.B. 1532; amended January 18, 2018, effective April 1, 2018, 48 Pa.B. 729. Immediately preceding text appears at serial pages (380218) to (380220).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 591 Withdrawal of Plea of Guilty or Nolo Contendere. {#sec-rule-591 omnilex-key=us-pa-regs-official--title-234--Rule 591}

(A) At any time before the imposition of sentence, the court may, in its discretion, permit, upon motion of the defendant, or direct, sua sponte, the withdrawal of a plea of guilty or nolo contendere and the substitution of a plea of not guilty.

(B) When a defendant moves for the withdrawal of a plea of guilty or nolo contendere, the attorney for the Commonwealth shall be given 10 days to respond.

Under paragraph (A), when a defendant moves to withdraw a plea of guilty or nolo contendere, ordinarily the motion should be filed in writing before the date of the sentencing hearing. For the procedures governing motions, see Chapter 5 Part F(1). However, nothing in this rule would preclude a defendant from making an oral and on-the-record motion to withdraw a plea at the sentencing hearing prior to the imposition of sentence.

When the defendant orally moves to withdraw a plea of guilty or nolo contendere at the sentencing hearing, the court should conduct an on-the-record colloquy to determine whether a fair and just reason to permit the withdrawal of the plea exists. If the court finds that there is not a fair and just reason, then the motion should be denied, and the court should proceed to sentencing. If the court finds that there may be a fair and just reason, then pursuant to paragraph (B), the court must give the attorney for the Commonwealth 10 days to respond to the motion.

Under paragraph (B), the trial court may not permit the withdrawal of a guilty plea or plea of nolo contendere until the expiration of the 10 days from the date on which the attorney for the Commonwealth receives the defendant’s motion to withdraw the plea, unless the attorney for the Commonwealth responds prior to the expiration, nor may it compel the attorney for the Commonwealth to respond prior to the expiration of the 10-day period.

After the attorney for the Commonwealth has had an opportunity to respond, a request to withdraw a plea made before sentencing should be liberally allowed. See Commonwealth v. Randolph, 553 Pa. 224, 718 A.2d 1242 (1998); Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973).

When a defendant is permitted to withdraw a guilty plea or plea of nolo contendere under this rule and proceeds with a non-jury trial, the court and the parties should consider whether recusal might be appropriate to avoid prejudice to the defendant. See, e.g., Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

For a discussion of plea withdrawals when a guilty plea or plea of nolo contendere includes a plea agreement, see the Comment to Rule 590.

For the procedures for withdrawal of guilty pleas entered before a magisterial district judge in a court case, see Rule 550(D).

Official Note

Rule 320 adopted June 30, 1964, effective January 1, 1965; Comment added June 29, 1977, effective September 1, 1977; Comment revised March 22, 1993, effective January 1, 1994; Comment deleted August 19, 1993, effective January 1, 1994; new Comment approved December 22, 1995, effective July 1, 1996; amended July 15, 1999, effective January 1, 2000; renumbered Rule 591 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised January 6, 2014, effective March 1, 2014.

Committee Explanatory Reports:

Committee Note explaining the August 12, 1993 deletion of the Comment published with the Court’s Order at 23 Pa.B. 4215 (September 4, 1993).

Final Report explaining the new Comment approved on December 22, 1995 published with the Court’s Order at 26 Pa.B. 8 (January 6, 1996).

Final Report explaining the July 15, 1999 amendments concerning the requirements for the withdrawal of a plea published with the Court’s Order at 29 Pa.B. 4057 (July 31, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the January 6, 2014 revision to the Comment cross-referencing Rule 550 published with the Court’s Order at 44 Pa.B. 478 (January 25, 2014).

The provisions of this Rule 591 amended January 6, 2014, effective March 1, 2014, 44 Pa.B. 477. Immediately preceding text appears at serial pages (363264) and (363591).

Rule

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 595 Mandatory Status Conference. {#sec-rule-595 omnilex-key=us-pa-regs-official--title-234--Rule 595}

(A) In all cases in which the defendant was under the age of 18 at the time of the commission of the alleged offense and charged with one of the offenses excluded from the definition of ‘‘delinquent act’’ in paragraphs (2)(i), (2)(ii), and (2)(iii) of 42 Pa.C.S. § 6302, the judge shall hold a status conference.

(1) The status conference shall be held no later than 40 days after the arraignment.

(2) The defendant, the defendant’s attorney, and the attorney for the Commonwealth shall be present at the status conference.

(B) At the status conference, the judge shall determine whether the defendant has filed a motion requesting the transfer from criminal proceedings to juvenile proceedings pursuant to 42 Pa.C.S. § 6322, or is requesting additional time to file a motion for transfer, or does not intend to file a motion.

(1) If the defendant is requesting additional time to file the motion for transfer and the judge agrees to the request, the judge shall set the date by which the motion for transfer shall be filed.

(2) When the defendant has filed a motion, the judge shall determine whether the motion for transfer is ready to be heard and the case shall proceed as provided in Rule 597.

(3) If the defendant is not going to file a motion for transfer or the judge denies the defendant’s request for additional time to file a motion, the case shall continue to proceed as a court case under the Rules of Criminal Procedure.

This rule mandates a status conference in all cases in which the defendant was under the age of 18 at the time of the commission of the alleged offense, was charged with one of the offenses excluded from the definition of ‘‘delinquent act’’ in paragraphs (2)(i), (2)(ii), and (2)(iii) of 42 Pa.C.S. § 6302, and therefore may seek transfer from criminal proceedings to juvenile proceedings pursuant to 42 Pa.C.S. § 6322. Cf. Rule 570 (pretrial conference discretionary with judge).

See Rule 596 for the procedures for filing a motion requesting transfer from criminal proceedings to juvenile proceedings.

See Rule 597 for the procedures after a motion for transfer has been filed.

See Rule 598 for the procedures concerning the pretrial place of detention of the defendant who was under the age of 18 at the time of the commission of the alleged offense and charged with one of the offenses excluded from the definition of ‘‘delinquent act’’ in paragraphs (2)(i), (2)(ii), and (2)(iii) of 42 Pa.C.S. § 6302. See also 42 Pa.C.S. § 6327(c.1).

At the status conference, in addition to determining whether a motion for transfer has been or will be filed,

(1) the judge and parties may consider matters related to the conduct of the hearing including the simplification or stipulation of factual issues, including admissibility of evidence; the qualification of exhibits as evidence to avoid unnecessary delay; the number of witnesses who are to give testimony of a cumulative nature; and such other matters as may aid in the disposition of the motion.

(2) The parties may request an order from the judge for the release of records or other materials relevant to the defendant’s motion for transfer, for the appointment of experts, for the examination of the defendant, for a report from the juvenile probation office, or for any other aids necessary to the disposition of the motion for transfer. The request, if authorized by law, may be made ex parte.

(3) The parties have the right to record an objection to rulings of the judge during the status conference.

(4) The judge must place on the record the agreements or objections made by the parties and rulings made by the judge as to any of the matters considered in the status conference. Such order controls the subsequent proceedings unless modified at the hearing on the transfer motion to prevent injustice.

Nothing in this rule gives the defendant’s parents, guardian, or other custodian legal standing in the matter being heard by the court or creates a right of a defendant to have his or her parents, guardian, or other custodian present.

As used in this rule, ‘‘judge’’ means judge of the court of common pleas.

Official Note

Adopted July 31, 2012, effective November 1, 2012.

Committee Explanatory Reports:

Final Report explaining the July 31, 2012 new rule published with the Court’s Order at 42 Pa.B. 5340 (August 18, 2012).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 596 Motion Requesting Transfer from Criminal Proceedings to Juvenile Proceedings. {#sec-rule-596 omnilex-key=us-pa-regs-official--title-234--Rule 596}

A request for the transfer from criminal proceedings to juvenile proceedings in a case in which the defendant was under the age of 18 at the time of the commission of the alleged offense and charged with one of the offenses excluded from the definition of ‘‘delinquent act’’ in paragraphs (2)(i), (2)(ii), and (2)(iii) of 42 Pa.C.S. § 6302 shall be made in the form of a motion.

(1) Any motion under this rule shall be filed after the preliminary hearing but not later than 30 days after arraignment.

(2) The motion shall be filed with the clerk of courts.

(3) A copy of the motion shall be served on the attorney for the Commonwealth concurrently with filing.

The rule establishes the latest time for filing a motion requesting transfer from criminal to juvenile proceedings by requiring that any motion must be filed no later than 30 days after the arraignment. However, as with omnibus pretrial motions, the judge may extend the time for filing for cause shown. Contemplated within the concept of ‘‘cause shown’’ is, for example, a finding by the court that discovery has not been completed, or that contested motions for discovery or for a bill of particulars are pending.

By permitting the motion to be filed at any time after the preliminary hearing, this rule encompasses what is the practice in a number of judicial districts and recognizes the importance of prompt determinations in these cases. Furthermore, nothing in this rule is intended to preclude judicial districts by local rule from imposing a shorter period of time after the preliminary hearing within which the motion must be filed.

For the general requirements concerning the filing and service of motions, notices, and other documents by parties, see Rule 576.

Official Note

Adopted July 31, 2012, effective November 1, 2012.

Committee Explanatory Reports:

Final Report explaining the July 31, 2012 new rule published with the Court’s Order at 42 Pa.B. 5340 (August 18, 2012).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 597 Procedures Following the Filing of a Motion Requesting Transfer from Criminal Proceedings to Juvenile Proceedings. {#sec-rule-597 omnilex-key=us-pa-regs-official--title-234--Rule 597}

(A) If the judge at the status conference conducted pursuant to Rule 595 determines the motion for transfer is not ready to be heard, the judge shall schedule additional status conferences no later than every 60 days after the first status conference until the motion for transfer is ready to be heard. At the status conference, the parties shall advise the judge of the status of all matters pertinent to whether the motion for transfer is ready to be heard.

(B) When the judge determines the motion for transfer is ready to be heard, the judge shall schedule the hearing on the motion for transfer to be held no later than 30 days after the determination. Notice of the hearing date shall be given to the defendant, the defendant’s attorney, and the attorney for the Commonwealth.

(C) At the conclusion of the hearing, but in no case longer than 20 days after the conclusion of the hearing, the judge shall announce the decision in open court. The judge shall enter an order granting or denying the motion for transfer, and set forth in writing or orally on the record the findings of fact and conclusions of law.

(D) If the judge does not render a decision within 20 days of the conclusion of the hearing, the motion for transfer shall be denied by operation of law. The clerk of courts immediately shall enter an order on behalf of the judge.

(E) If the judge grants the motion,

(1) the judge immediately shall order the transfer of the case from criminal proceedings to juvenile proceedings and the case shall proceed pursuant to the Rules of Juvenile Court Procedure and the Juvenile Act, except as provided in paragraph (E)(3).

(2) The judge shall order the defendant to be taken forthwith to the juvenile probation office, except as provided in paragraph (E)(3).

(3) If, within 30 days of the judge’s order transferring the case from criminal proceedings to juvenile proceedings, the attorney for the Commonwealth files a notice of appeal from the order, the judge shall:

(a) stay the juvenile proceedings pending disposition of the appeal; and

(b) review the defendant’s bail status and may release the defendant conditioned upon the defendant being detained in a secure detention facility pursuant to Rule 598.

(F) If the judge denies the motion for transfer or the clerk of courts enters an order denying the motion for transfer on behalf of the judge, the case shall continue to proceed as a court case under the Rules of Criminal Procedure.

(G) The clerk of courts shall serve copies of the order granting or denying the motion for transfer to the defendant, the defendant’s attorney, and the attorney for the Commonwealth.

At the additional status conferences, the parties may request additional orders from the judge for the release of records or other materials relevant to the defendant’s motion for transfer, for the appointment of experts, for the examination of the defendant, for a report from the juvenile probation office, or for any other aids necessary to the disposition of the motion for transfer. The request, if authorized by law, may be made ex parte.

Nothing in this rule is intended to preclude the practice in some judicial districts of notifying the juvenile probation office when a motion requesting transfer is filed or of the date of the hearing on the motion.

Pursuant to 42 Pa.C.S. § 6322(a) of the Juvenile Act, at the hearing on the motion for transfer, the burden of proof is on the defendant ‘‘to establish by a preponderance of the evidence that the transfer will serve the public interest.’’

Paragraph (C) is derived from the 42 Pa.C.S. § 6322(b) of the Juvenile Act. The judge, when making his or her findings of fact and conclusions of law, must comply with the Juvenile Act’s requirement that the judge ‘‘make findings of fact, including specific references to the evidence, and conclusions of law in support of the transfer order.’’

Paragraph (D) also is derived from the requirements of 42 Pa.C.S. § 6322(a) of the Juvenile Act, that ‘‘the defendant’s petition to transfer the case shall be denied by operation of law’’ in any case in which the judge ‘‘does not make its finding within 20 days of the hearing on the petition to transfer the case.’’

When the judge grants a motion to transfer, paragraph (E)(2) requires that the case immediately be transferred for juvenile proceedings pursuant to the Rules of Juvenile Court Procedure and the Juvenile Act, and the criminal court no longer has jurisdiction over the case. However, because the transfer order is immediately appealable by the Commonwealth, Commonwealth v. Johnson, 542 Pa. 568, 669 A.2d 315 (1995), an appeal by the Commonwealth would preclude the transfer of the case and proceedings pursuant to the Rules of Juvenile Court Procedure. See, 42 Pa.C.S. § 6322(d).

When the defendant is taken to the juvenile probation office following the granting of a transfer motion as required in paragraph (E)(2), the juvenile probation officer will determine, pursuant to 42 Pa.C.S. § 6325, whether the defendant should be detained or placed in shelter care or released to the custody of his or her parent, guardian, custodian, or other person legally responsible for him or her. See, also, 42 Pa.C.S. § 6322(d).

Paragraph (E)(3) recognizes the right of the Commonwealth to appeal the transfer order. If the Commonwealth files a notice of appeal, the judge will stay the juvenile proceedings and review the bail status of the defendant, considering whether the defendant should be detained in a secure detention facility during the stay. Pursuant to the rule, the judge may release the defendant from custody in an adult jail conditioned upon the defendant being detained in a secure detention facility. See Rule 524(C)(2) that permits a judge to release a defendant on nonmonetary conditions.

Nothing in this rule gives the defendant’s parents, guardian, or other custodian legal standing in the matter being heard by the court or creates a right of a defendant to have his or her parents, guardian, or other custodian present.

As used in this rule, ‘‘judge’’ means judge of the court of common pleas.

Official Note

Adopted July 31, 2012, effective November 1, 2012.

Committee Explanatory Reports:

Final Report explaining the July 31, 2012 new rule published with the Court’s Order at 42 Pa.B. 5340 (August 18, 2012).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

234 Pa. Code Rule 598 Place of Detention During Procedures for Transfer from Criminal Proceedings to Juvenile Proceedings Pursuant to 42 Pa.C.S. § 6322. {#sec-rule-598 omnilex-key=us-pa-regs-official--title-234--Rule 598}

(A) Except as provided in paragraph (B), a defendant who is under the age of 18 at the time the complaint is filed and is charged with one of the offenses excluded from the definition of ‘‘delinquent act’’ in paragraphs (2)(i), (2)(ii), and (2)(iii) of 42 Pa.C.S. § 6302 shall be detained in the county jail unless released on bail.

(B) A defendant, who may seek or is seeking transfer from criminal proceedings to juvenile proceedings pursuant to 42 Pa.C.S. § 6322 and has not been released on bail, may file a motion in the court of common pleas requesting that he or she be detained in a secure detention facility.

(1) If the attorney for the Commonwealth consents to the motion requesting detention in a secure detention facility, the judge may order that the defendant be detained in a secure detention facility until:

(a) the defendant is released on bail; or

(b) the judge determines that the defendant is not seeking transfer of the case pursuant to 42 Pa.C.S. § 6322; or

(c) the judge denies the motion for transfer filed pursuant to 42 Pa.C.S. § 6322.

(2) In no event may the defendant be detained in a secure detention facility after the defendant’s 18th birthday, unless:

(a) the judge has granted the motion to transfer filed pursuant to 42 Pa.C.S. § 6322; or

(b) the juvenile court has issued an order for the defendant’s secure detention in a separate delinquency case.

(3) If the attorney for the Commonwealth files a notice of appeal from the judge’s order transferring the case from criminal proceedings to juvenile proceedings pursuant to Rule 597, the judge may order the release of the defendant conditioned upon the defendant being detained in a secure detention facility pending the disposition of the appeal.

(C) After the defendant has been detained in a secure detention facility pursuant to the judge’s order issued as provided in paragraph (B), the judge promptly shall order the defendant’s transfer to the county jail if:

(1) the judge denies the defendant’s motion to transfer;

(2) the judge determines that the defendant is not filing a motion to transfer or is no longer seeking transfer; or

(3) the judge determines that the defendant has reached his or her 18th birthday and a juvenile court has not ordered the defendant to be detained in the secure detention facility in a separate delinquency case.

(D) Except as provided in Rule 597(E)(3), if the defendant’s motion for transfer is granted, the judge shall order the defendant to be taken to the juvenile probation office pursuant to Rule 595(G)(2).

As provided in paragraph (B), a defendant, who may seek transfer from criminal proceedings to juvenile proceedings pursuant to 42 Pa.C.S. § 6322, with the consent of the attorney for the Commonwealth, may be transferred to a secure detention facility during the pendency of proceedings under this rule. See also 42 Pa.C.S. § 6327(c.1).

As used in this rule, ‘‘secure detention facility’’ is a facility approved by the Department of Public Welfare to provide secure detention of alleged and adjudicated delinquent children, see 55 Pa. Code § 3800.5, and does not include shelter care.

Nothing in this rule is intended to restrict or enlarge the defendant’s eligibility for release on bail or ability to post bail. If the Commonwealth files a notice of appeal of the judge’s order transferring the case from criminal proceedings to juvenile proceedings, the judge must review the defendant’s bail status and may release the defendant conditioned upon the defendant being detained in a secure detention facility. See Rule 597(E)(3). See also Rule 524(C)(2) that permits a judge to release a defendant on nonmonetary conditions.

As used in this rule, ‘‘judge’’ means judge of the court of common pleas. Neither Philadelphia Municipal Court judges nor magisterial district judges are permitted to order a defendant who may seek or is seeking transfer from criminal proceedings to juvenile proceedings pursuant to 42 Pa.C.S. § 6322 to be detained in a secure detention facility.

Official Note

Adopted July 31, 2012 effective November 1, 2012.

Committee Explanatory Reports:

Final Report explaining the July 31, 2012 new rule published with the Court’s Order at 42 Pa.B. 5340 (August 18, 2012).

History

• Source: The provisions of this Part I adopted July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333.

Chapter 6 TRIAL PROCEDURES IN COURT CASES

234 Pa. Code Rule 600 [Rescinded]. {#sec-rule-600 omnilex-key=us-pa-regs-official--title-234--Rule 600}

(A) COMMENCEMENT OF TRIAL; TIME FOR TRIAL

(1) For the purpose of this rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea of guilty or nolo contendere.

(2) Trial shall commence within the following time periods.

(a) Trial in a court case in which a written complaint is filed against the defendant shall commence within 365 days from the date on which the complaint is filed.

(b) Trial in a court case that is transferred from the juvenile court to the trial or criminal division shall commence within 365 days from the date on which the transfer order is filed.

(c) When a trial court has ordered that a defendant’s participation in the ARD program be terminated pursuant to Rule 318, trial shall commence within 365 days from the date on which the termination order is filed.

(d) When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within 365 days from the date on which the trial court’s order is filed.

(e) When an appellate court has remanded a case to the trial court, the new trial shall commence within 365 days from the date of the written notice from the appellate court to the parties that the record was remanded.

(B) PRETRIAL INCARCERATION

Except in cases in which the defendant is not entitled to release on bail as provided by law, no defendant shall be held in pretrial incarceration in excess of

(1) 180 days from the date on which the complaint is filed; or

(2) 180 days from the date on which the order is filed transferring a court case from the juvenile court to the trial or criminal division; or

(3) 180 days from the date on which the order is filed terminating a defendant’s participation in the ARD program pursuant to Rule 318; or

(4) 120 days from the date on which the order of the trial court is filed granting a new trial when no appeal has been perfected; or

(5) 120 days from the date of the written notice from the appellate court to the parties that the record was remanded.

(C) COMPUTATION OF TIME

(1) For purposes of paragraph (A), periods of delay at any stage of the proceedings caused by the Commonwealth when the Commonwealth has failed to exercise due diligence shall be included in the computation of the time within which trial must commence. Any other periods of delay shall be excluded from the computation.

(2) For purposes of paragraph (B), only periods of delay caused by the defendant shall be excluded from the computation of the length of time of any pretrial incarceration. Any other periods of delay shall be included in the computation.

(3)(a) When a judge or issuing authority grants or denies a continuance:

(i) the issuing authority shall record the identity of the party requesting the continuance and the reasons for granting or denying the continuance; and

(ii) the judge shall record the identity of the party requesting the continuance and the reasons for granting or denying the continuance. The judge also shall record to which party the period of delay caused by the continuance shall be attributed, and whether the time will be included in or excluded from the computation of the time within which trial must commence in accordance with this rule.

(b) The determination of the judge or issuing authority is subject to review as provided in paragraph (D)(3).

(D) REMEDIES

(1) When a defendant has not been brought to trial within the time periods set forth in paragraph (A), at any time before trial, the defendant’s attorney, or the defendant if unrepresented, may file a written motion requesting that the charges be dismissed with prejudice on the ground that this rule has been violated. A copy of the motion shall be served on the attorney for the Commonwealth concurrently with filing. The judge shall conduct a hearing on the motion.

(2) Except in cases in which the defendant is not entitled to release on bail as provided by law, when a defendant is held in pretrial incarceration beyond the time set forth in paragraph (B), at any time before trial, the defendant’s attorney, or the defendant if unrepresented, may file a written motion requesting that the defendant be released immediately on nominal bail subject to any nonmonetary conditions of bail imposed by the court as permitted by law. A copy of the motion shall be served on the attorney for the Commonwealth concurrently with filing. The judge shall conduct a hearing on the motion.

(3) Any requests for review of the determination in paragraph (C)(3) shall be raised in a motion or answer filed pursuant to paragraph (D)(1) or paragraph (D)(2).

(E) Nothing in this rule shall be construed to modify any time limit contained in any statute of limitations.

Rule 600 was adopted in 1973 as Rule 1100 pursuant to Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972), and provided, inter alia, that trials be held within 180 days of the filing of the complaint. The Court in Hamilton and subsequent cases explained that, by fixing the maximum time limit within which to try individuals accused of crime, the rule is intended to protect the right of criminal defendants to a speedy trial, protect society’s right to effective prosecution of criminal cases, and help eliminate the backlog in criminal cases in the courts of Pennsylvania. See, e.g., Commonwealth v. Dixon, 589 Pa. 28, 907 A.2d 468 (2006); Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981).

The time limits of this rule were expanded on December 31, 1987, effective immediately, to provide that trials must be held within 365 days of the filing of the complaint. The 1987 amendments also provided that a defendant who has been held in pretrial incarceration longer than 180 days must be released on nominal bail, and deleted the provisions concerning Commonwealth petitions to extend the time for commencement of trial.

In 2012, former Rule 600 was rescinded and new Rule 600 adopted to reorganize and clarify the provisions of the rule in view of the long line of cases that have construed the rule. The new rule incorporates from former Rule 600 the provisions concerning the commencement of trial and the requirement of bringing a defendant to trial within 365 days of specified events, new paragraph (A), and the 120-day or 180-day time limits on pretrial incarceration, new paragraph (B). New paragraph (C), concerning computation of time and continuances, and new paragraph (D), concerning remedies, have been modified to clarify the procedures and reflect changes in law.

When calculating the number of days set forth herein, see Pa.R.J.A. 107.

COMMENCEMENT OF TRIAL; TIME FOR TRIAL

Paragraph (A) addresses both the commencement of trial and the 365-day time for trial. A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire or to opening argument, or to the hearing of any motions that had been reserved for the time of trial, or to the taking of testimony, or to some other such first step in the trial. See, e.g., Commonwealth v. Kluska, 484 Pa. 508, 399 A.2d 681 (1979); Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977). It is not intended that preliminary calendar calls should constitute commencement of a trial. Concerning the hearing of motions reserved for the time of trial, see Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981).

The general rule is that trial must commence within 365 days from the date on which the complaint is filed. Pursuant to this rule, it is intended that ‘‘complaint’’ also includes special documents used in lieu of a complaint to initiate criminal proceedings in extraordinary circumstances such as criminal proceedings instituted by a medical examiner or coroner. See Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967), vacated on other grounds, 392 U.S. 647 (1968); Commonwealth v. Smouse, 406 Pa.Super. 369, 594 A.2d 666 (1991).

In cases in which the Commonwealth files a criminal complaint, withdraws that complaint, and files a second complaint, the Commonwealth will be afforded the benefit of the date of the filing of the second complaint for purposes of calculating the time for trial when the withdrawal and re-filing of charges are necessitated by factors beyond its control, the Commonwealth has exercised due diligence, and the refiling is not an attempt to circumvent the time limitation of Rule 600. See Commonwealth v. Meadius, 582 Pa. 174, 870 A.2d 802 (2005).

The withdrawal of, rejection of, or successful challenge to a guilty plea should be considered the granting of a new trial for purposes of paragraph (A)(2)(d) of this rule. Paragraph (A)(2)(d) also applies to the period for commencing a new trial following the declaration of a mistrial.

The date of filing court orders for purposes of paragraphs (A)(2) and B is the date of receipt of the order in the clerk of court’s office. See the third paragraph of the Comment to Rule 114 (Orders and Court Notices; Filing; Service; and Docket Entries).

When an appellate court has remanded a case to the trial court for a new trial, for purposes of computing the time for trial under paragraph (A)(2)(e) or the length of time of pretrial incarceration for purposes of paragraph (B)(5), the date of the remand is the date of the prothonotary’s notice to the parties that the record was remanded. See Pa.R.A.P. 2572(e) concerning the requirement that the prothonotary of the appellate court give the parties written notice of the date on which the record was remanded.

COMPUTATION OF TIME

For purposes of determining the time within which trial must be commenced pursuant to paragraph (A), paragraph (C)(1) makes it clear that any delay in the commencement of trial that is not attributable to the Commonwealth when the Commonwealth has exercised due diligence must be excluded from the computation of time. Thus, the inquiry for a judge in determining whether there is a violation of the time periods in paragraph (A) is whether the delay is caused solely by the Commonwealth when the Commonwealth has failed to exercise due diligence. See, e.g., Commonwealth v. Dixon, 589 Pa. 28, 907 A.2d 468 (2006); Commonwealth v. Matis, 551 Pa. 220, 710 A.2d 12 (1998). If the delay occurred as the result of circumstances beyond the Commonwealth’s control and despite its due diligence, the time is excluded. See, e.g. Commonwealth v. Browne, 526 Pa. 83, 584 A.2d 902 (1990); Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981). In determining whether the Commonwealth has exercised due diligence, the courts have explained that ‘‘[d]ue diligence is fact-specific, to be determined case-by-case; it does not require perfect vigilance and punctilious care, but merely a showing the Commonwealth has put forth a reasonable effort.’’ See, e.g., Commonwealth v. Selenski, 606 Pa 51, 61, 994 A.2d 1083, 1089 (Pa. 2010) (citing Commonwealth v. Hill and Commonwealth v. Cornell, 558 Pa. 238, 256, 736 A.2d 578, 588 (1999)).

Delay in the time for trial that is attributable to the judiciary may be excluded from the computation of time. See, e.g., Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983). However, when the delay attributable to the court is so egregious that a constitutional right has been impaired, the court cannot be excused for postponing the defendant’s trial and the delay will not be excluded. See Commonwealth v. Africa, 524 Pa. 118, 569 A.2d 920 (1990).

When the defendant or the defense has been instrumental in causing the delay, the period of delay will be excluded from computation of time. See, e.g., Commonwealth v. Matis, supra; Commonwealth v. Brightwell, 486 Pa. 401, 406 A.2d 503 (1979) (plurality opinion). For purposes of paragraph (C)(1) and paragraph (C)(2), the following periods of time, that were previously enumerated in the text of former Rule 600(C), are examples of periods of delay caused by the defendant. This time must be excluded from the computations in paragraphs (C)(1) and (C)(2):

(1) the period of time between the filing of the written complaint and the defendant’s arrest, provided that the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence;

(2) any period of time for which the defendant expressly waives Rule 600;

(3) such period of delay at any stage of the proceedings as results from either the unavailability of the defendant or the defendant’s attorney or any continuance granted at the request of the defendant or the defendant’s attorney.

In addition to any other circumstances precluding the availability of the defendant or the defendant’s attorney, the defendant should be deemed unavailable for the period of time during which the defendant contested extradition, or a responding jurisdiction delayed or refused to grant extradition; or during which the defendant was physically incapacitated or mentally incompetent to proceed; or during which the defendant was absent under compulsory process requiring his or her appearance elsewhere in connection with other judicial proceedings.

For periods of delay that result from the filing and litigation of omnibus pretrial motions for relief or other motions, see Commonwealth v. Hill and Commonwealth v. Cornell, 558 Pa. 238, 736 A.2d 578 (1999) (the mere filing of a pretrial motion does not automatically render defendant unavailable; only unavailable if delay in commencement of trial is caused by filing pretrial motion).

For purposes of determining the length of time a defendant has been held in pretrial incarceration pursuant to paragraph (B), only the periods of delay attributable to the defense are to be excluded from the computation. See Commonwealth v. Dixon, 589 Pa. 28, 907 A.2d 468 (2006).

Paragraph (C)(3) and Rules 106 (Continuances in Summary and Court Cases) and 542 (Preliminary Hearing; Continuances) require the judge to indicate on the record whether the time is excludable whenever he or she grants a continuance.

When a judge grants a continuance, trial should be rescheduled for a date certain consistent with the continuance request and the court’s business. See, e.g., Commonwealth v. Crowley, supra.

REMEDIES

Paragraph (D)(1) requires that any defendant, whether incarcerated or released on bail, not brought to trial within the time periods in paragraph (A) at any time before trial may move to have the charges dismissed on the ground that this rule has been violated. See Commonwealth v. Solano, 588 Pa. 716, 906 A.2d 1180 (2006).

When a case is dismissed for violation of this rule, the dismissal is ‘‘with prejudice,’’ and the Commonwealth’s only recourse is to file either a motion for reconsideration or an appeal.

Paragraph (D)(2) sets forth the remedy should a defendant be held in pretrial incarceration beyond the time periods in paragraph (B). Defendants who would not be released on bail based on Article I, Section 14 of the Pennsylvania Constitution are not eligible for release under paragraph (D)(2) of this rule. See, e.g., Commonwealth v. Sloan, 589 Pa. 15, 27, n.10, 907 A.2d 460, 467, n.10 (2006); Commonwealth v. Jones, 899 A.2d 353 (Pa. Super. 2006). Article I, Section 14 of the Pennsylvania Constitution provides, inter alia, that ‘‘[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great.’’

Except in cases in which bail is not available pursuant to Article I, Section 14 of the Pennsylvania Constitution, the defendant must be released on nominal bail. Imposition of nominal bail includes in the appropriate case the imposition of nonmonetary conditions of release. See Commonwealth v. Sloan, supra. See also Rules 524, 526, and 527 concerning types and conditions of release on bail.

When admitted to nominal bail pursuant to this rule, the defendant must execute a bail bond. See Rules 525 and 526.

Paragraph (D)(3) makes it clear that requests for review of the determination concerning continuances must be raised in a motion for dismissal, paragraph (D)(1), or in a motion for release, paragraph (D)(2), or in an answer.

For the procedures concerning motions and answers, and the filing and service of motions and answers, see Rules 575 and 576. For the procedures following the filing of a motion, see Rule 577.

The provisions of this Rule 600 adopted October 1, 2012, effective July 1, 2013, 42 Pa.B. 6622; amended November 3, 2023, effective January 1, 2024, 53 Pa.B. 7160. Immediately preceding text appears at serial pages (377914) and (364111) to (364114) and (366967).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 601 Presence of Judge. {#sec-rule-601 omnilex-key=us-pa-regs-official--title-234--Rule 601}

(A) A judge shall be present at all stages of the trial.

(B) Any judge may preside at a pretrial conference, during the hearing and disposition of a pretrial application, or during the selection of a jury.

(C) The judge who is present from the time the trial commences shall be considered the trial judge and shall be present, except in extraordinary circumstances, until a verdict is recorded or the jury is discharged.

Concerning the judge’s presence during voir dire and the jury selection process, see Rule 631(A).

The requirement that the same judge be present from the time the trial begins accords with the decision in Commonwealth v. Thompson, 195 A. 115 (Pa. 1937). ‘‘The substitution of judges during a case should be carefully guarded and never permitted except under most extraordinary circumstances, and then only when no prejudice can result to the parties. Substitution must be a matter of necessity, where the due administration of justice makes it imperative and without prejudice.’’ Id. at 28-29. See also Commonwealth v. Zeger, 186 A.2d 922 (Pa. Super. 1962).

The Pennsylvania rule has been that another judge may receive the verdict because it is considered to be a clerical rather than a judicial function. Commonwealth v. Thompson, 195 A. 115, 117 (Pa. 1937); Culver v. Lehigh Transit Co., 186 A. 70 (Pa. 1936). However, since the judge having knowledge of the trial proceedings may be required to take such action as molding the verdict, directing reconsideration of a defective or incomplete verdict, or giving additional or correctional instructions, paragraph (C) requires that the same judge preside even at the receipt of the verdict, except in extraordinary cases such as those set forth in Commonwealth v. Thompson, 195 A. 115, 117 (Pa. 1937).

Official Note

Rule 1105 adopted January 24, 1965, effective August 1, 1968; amended February 27, 1995, effective July 1, 1995; renumbered Rule 601 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the February 27, 1995 amendments published with the Court’s Order at 25 Pa.B. 948 (March 18, 1995).

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).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 602 Presence of the Defendant. {#sec-rule-602 omnilex-key=us-pa-regs-official--title-234--Rule 602}

(A) The defendant shall be present at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant’s absence without cause at the time scheduled for the start of trial or during trial shall not preclude proceeding with the trial, including the return of the verdict and the imposition of sentence.

(B) A corporation may appear by its attorney for all purposes.

This rule was amended in 2013 to clarify that, upon a finding that the absence was without cause, the trial judge may conduct the trial in the defendant’s absence when the defendant fails to appear without cause at the time set for trial or during trial. The burden of proving that the defendant’s absence is without cause is upon the Commonwealth by a preponderance of the evidence. See Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980) (when a constitutional right is waived, the Commonwealth must show by a preponderance of the evidence that the waiver was voluntary, knowing and intelligent); Commonwealth v. Tizer, 454 Pa.Super. 1, 684 A.2d 597 (1996). See also Commonwealth v. Bond, 693 A.2d 220, 223 (Pa. Super. 1997) (‘‘[A] defendant who is unaware of the charges against him, unaware of the establishment of his trial date or is absent involuntarily is not absent ‘without cause.’’’).

This rule applies to all cases, including capital cases.

A defendant’s presence may be deemed waived by the defendant intentionally failing to appear at any stage of the trial after proper notice. See Commonwealth v. Wilson, 551 Pa. 593, 712 A.2d 735 (1998) (a defendant, who fled courthouse after jury was impaneled and after subsequent plea negotiations failed, was deemed to have knowingly and voluntarily waived the right to be present); Commonwealth v. Sullens, 533 Pa. 99, 619 A.2d 1349 (1992) (when a defendant is absent without cause at the time his or her trial is scheduled to begin, the defendant may be tried in absentia).

Nothing in this rule is intended to preclude a defendant from affirmatively waiving the right to be present at any stage of the trial, see e.g., Commonwealth v. Vega, 553 Pa. 255, 719 A.2d 227 (1998) (plurality) (requirements for a knowing and intelligent waiver of a defendant’s presence at trial includes a full, on-the-record colloquy concerning consequences of forfeiture of the defendant’s right to be present). Once a defendant appears before the court, he or she cannot waive his or her right to appear in capital case. See Commonwealth v. Ford, 539 Pa. 85, 650 A.2d 433 (1994) (right of defendant to be present at trial of capital offense is transformed into obligation due to gravity of potential outcome).

Nothing in this rule is intended to preclude a defendant from waiving the right to be present by his or her actions, see e.g., Illinois v. Allen, 397 U.S. 337, 343 (1970) (‘‘[A] defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.’’) and Commonwealth v. Wilson, supra.

The defendant’s right to be present in the courtroom is not absolute. See Commonwealth v. Boyle, 498 Pa. 486, 491, n.7, 447 A.2d 250, 253, n.7 (1982) (defendant’s presence in chambers and at sidebar is not required where he is represented by counsel.) and Commonwealth v. Hunsberger,

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 603 Exceptions. {#sec-rule-603 omnilex-key=us-pa-regs-official--title-234--Rule 603}

(A) Any ruling of the judge on an objection or motion made during the trial of any action or proceeding shall have the effect of a sealed exception in favor of the party adversely affected without the necessity of a formal request or notation made on the record.

(B) This rule shall not be applicable to the charge to the jury.

Official Note

Formerly Rule 100, adopted March 7, 1963, effective October 1, 1963, renumbered Rule 1115 September 18, 1973, effective January 1, 1974; renumbered Rule 603 and amended March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 604 Opening Statements and Closing Arguments. {#sec-rule-604 omnilex-key=us-pa-regs-official--title-234--Rule 604}

(A) After the jury has been sworn, the attorney for the Commonwealth shall make an opening statement to the jury. The defendant or the defendant’s attorney may then make an opening statement or reserve it until after the Commonwealth has presented its case.

(B) When the evidence is concluded, each party shall be entitled to present one closing argument to the jury. Regardless of the number of defendants, and whether or not a defendant has presented a defense, the attorney for the Commonwealth shall be entitled to make one argument which shall be made last.

This rule establishes a uniform procedure throughout the Commonwealth for the guilt determining phase of the trial. For the procedures after the presentation of evidence at the sentencing phase of a death penalty case, see Rule 806.

Official Note

Rule 1116 adopted January 24, 1968, effective August 1, 1968; Comment revised February 1, 1989, effective July 1, 1989; renumbered Rule 604 and amended March 1, 2000, effective April 1, 2001; Comment revised June 4, 2004, effective November 1, 2004.

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).

The provisions of this Rule 604 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105. Immediately preceeding text appears at serial page (264309).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 605 Mistrial. {#sec-rule-605 omnilex-key=us-pa-regs-official--title-234--Rule 605}

(A) Motions to withdraw a juror are abolished.

(B) When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.

This rule replaces the practice of moving for the withdrawal of a juror.

Examples of ‘‘manifest necessity’’ can be found in Commonwealth v. Stewart, 317 A.2d 616 (Pa. 1974); Commonwealth v. Brown, 301 A.2d 876 (Pa. 1973); United States ex rel. Russo v. Superior Court of New Jersey, Law Division, Passaic County, 483 F.2d 7 (3rd Cir. 1973), cert. denied, 414 U.S. 1023 (1973); United States v. Tinney, 473 F.2d 1085 (3rd Cir. 1973), cert. denied, 412 U.S. 928 (1973); United States v. Jorn, 440 U.S. 470 (1971); and United States v. Perez, 9 Wheat. 579 (1824); see also Illinois v. Somerville, 410 U.S. 458 (1973).

See Rule 587(b) for the procedures when a motion to dismiss on double jeopardy grounds is filed.

Official Note

Rule 1118 adopted January 24, 1968, effective August 1, 1968; amended June 28, 1974, effective September 1, 1974; renumbered Rule 605 and amended March 1, 2000, effective April 1, 2001; Comment revised June 4, 2013, effective July 4, 2013.

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. 1478 (March 18, 2000).

Final Report explaining the June 4, 2013 revision of the Comment adding a citation to Rule 587 concerning motions to dismiss on double jeopardy grounds published with the Court’s Order at 43 Pa.B. 3331 (June 22, 2013).

The provisions of this Rule amended June 4, 2013, effective July 4, 2013, 43 Pa.B. 3330; amended January 4, 2022, effective July 1, 2022, 52 Pa.B. 346. Immediately preceding text appears at serial page (367401).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 606 Challenges to Sufficiency of Evidence. {#sec-rule-606 omnilex-key=us-pa-regs-official--title-234--Rule 606}

(A) A defendant may challenge the sufficiency of the evidence to sustain a conviction of one or more of the offenses charged in one or more of the following ways:

(1) a motion for judgment of acquittal at the close of the Commonwealth’s case-in-chief;

(2) a motion for judgment of acquittal at the close of all the evidence;

(3) a motion for judgment of acquittal filed within 10 days after the jury has been discharged without agreeing upon a verdict;

(4) a motion for judgment of acquittal made orally immediately after verdict;

(5) a motion for judgment of acquittal made orally before sentencing pursuant to Rule 704(B);

(6) a motion for judgment of acquittal made after sentence is imposed pursuant to Rule 720 (B); or

(7) a challenge to the sufficiency of the evidence made on appeal.

(B) A motion for judgment of acquittal shall not constitute an admission of any facts or inferences except for the purpose of deciding the motion. If the motion is made at the close of the Commonwealth’s evidence and is not granted, the defendant may present evidence without having reserved the right to do so, and the case shall otherwise proceed as if the motion had not been made.

(C) If a defendant moves for judgment of acquittal at the close of all the evidence, the court may reserve decision until after the jury returns a guilty verdict or after the jury is discharged without agreeing upon a verdict.

Rule 1124 was adopted in 1983 to codify the procedures applicable to challenges to the sufficiency of the evidence to convict in view of JARA, which repealed the statutes concerning such challenges. See JARA § 2(a), 42 P. S. § 20002(a) 194, 1275, 1322.

Paragraph (A), amended in 1993, standardizes the terminology in Pennsylvania for challenges to the sufficiency of the evidence before verdict in view of Smalis v. Pennsylvania, 476 U. S. 140 (1986). See also Fed.R.Crim.P. 29. These amendments do not preclude the use of demurrers for other than sufficiency of the evidence challenges, as otherwise provided by law. For similar reasons, the term ‘‘motion for judgment of acquittal’’ is used in paragraph (A)(6) instead of ‘‘motion for arrest of judgment’’ in order to align this aspect of Pennsylvania legal terminology with that of the majority of other states and with the Federal Rules. See Fed.R.Crim.P. 29. This amendment is not intended to change Pennsylvania law. It follows that the inadvertent use of the word ‘‘demurrer’’ when ‘‘motion for judgment of acquittal’’ is now appropriate would not affect an otherwise valid sufficiency challenge.

A motion in arrest of judgment would still be the appropriate means for raising a challenge based on the court’s jurisdiction, on double jeopardy, or on the statute of limitations.

Paragraph (A)(4) permits an oral motion for judgment of acquittal to be made immediately after verdict, a procedure of long standing in Pennsylvania.

Other amendments in paragraph (A), however, reflect changes in Pennsylvania practice. Under Rule 720, the time for a written post-verdict motion for judgment of acquittal has been moved to post-sentence. Rule 704(B) provides a narrow exception to these new procedures by authorizing an oral motion for extraordinary relief, which is made before sentencing. A defendant may challenge the sufficiency of the evidence in any one or more of the ways listed in paragraph (A) of this rule. If the defendant does not move for a judgment of acquittal before verdict pursuant to paragraph (A)(1) or (A)(2), the defendant may still raise the issue for trial court review after the jury has been discharged without agreeing upon a verdict pursuant to paragraph (A)(3), or after verdict pursuant to paragraphs (A)(4), (A)(5), or (A)(6). The defendant may also raise the issue for the first time on appeal under paragraph (A)(7). If the defendant does move before verdict and the motion is denied, the defendant may renew the motion before the trial court pursuant to paragraphs (A)(3) through (A)(6).

Appellate review of a weight of the evidence claim is limited to a review of the judge’s exercise of discretion. See Commonwealth v. Widmer, 689 A.2d 211 (Pa. 1997) and Commonwealth v. Brown, 648 A.2d 1177, 1189—1192 (Pa. 1994). Therefore, although a challenge to the sufficiency of the evidence may be raised for the first time on appeal, paragraph (A)(7), a challenge to the weight of the evidence must be raised with the trial judge or it will be waived. See Rule 607.

For procedures governing a motion for judgment of acquittal after the jury has been discharged without agreeing upon a verdict, see Rule 608.

Official Note

Previous Rule 1124 adopted January 24, 1968, effective August 1, 1968; amended September 18, 1973, effective January 1, 1974; amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; rescinded July 1, 1980, effective August 1, 1980, and not replaced. Present Rule 1124 adopted January 28, 1983, effective July 1, 1983; amended March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; Comment revised October 15, 1997, effective January 1, 1998; renumbered Rule 606 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the March 22, 1993 amendments published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).

Final Report explaining the October 15, 1997 Comment revision concerning weight of the evidence claims published with the Court’s Order at 27 Pa.B. 5599 (November 1, 1997).

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).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 607 Challenges to the Weight of the Evidence. {#sec-rule-607 omnilex-key=us-pa-regs-official--title-234--Rule 607}

(A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:

(1) orally, on the record, at any time before sentencing;

(2) by written motion at any time before sentencing; or

(3) in a post-sentence motion.

(B) (1) If the claim is raised before sentencing, the judge shall decide the motion before imposing sentence, and shall not extend the date for sentencing or otherwise delay the sentencing proceeding in order to dispose of the motion.

(2) An appeal from a disposition pursuant to this paragraph shall be governed by the timing requirements of Rule 720(A)(2) or (3), whichever applies.

The purpose of this rule is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived. Appellate review of a weight of the evidence claim is limited to a review of the judge’s exercise of discretion. See Commonwealth v. Widmer, 689 A.2d 211 (Pa. 1997), and Commonwealth v. Brown, 648 A.2d 1177, 1189—1192 (Pa. 1994).

When a claim is raised before sentencing, the defendant may, but need not, raise the issue again in a post-sentence motion. See Rule 720(B)(1)(a)(iv).

Official Note

Rule 1124A adopted October 15, 1997, effective January 1, 1998; renumbered Rule 607 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the October 15, 1997 adoption of Rule 1124A published with the Court’s Order at 27 Pa.B. 5599 (November 1, 1997).

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).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 608 Motion for Judgment of Acquittal After Discharge of Jury. {#sec-rule-608 omnilex-key=us-pa-regs-official--title-234--Rule 608}

(A) TIME FOR MOTION.

(1) Oral Motion.

An oral motion for judgment of acquittal may be made and decided at the time the jury is discharged without agreeing upon a verdict if the defendant so agrees on the record.

(2) Written Motion.

A written motion for judgment of acquittal shall be filed within 10 days after the jury has been discharged without agreeing upon a verdict.

(B) TIME FOR DECISION ON MOTION.

(1) A motion for judgment of acquittal after the jury has been discharged without agreeing upon a verdict shall be decided within 30 days after the motion is filed. If the judge fails to decide the motion within 30 days, the motion shall be deemed denied.

(2) When a motion for judgment of acquittal is denied by operation of law under this rule, the clerk of courts shall enter an order on behalf of the court, and shall immediately notify the attorney for the Commonwealth, the defendant(s), and defense counsel that the motion is deemed denied.

This rule is intended to correlate the procedures governing a motion for judgment of acquittal after a jury is discharged with the post-sentence procedures adopted in 1993 under Rule 720 (Post-Sentence Procedures; Appeal), thereby promoting the prompt disposition of post-trial matters.

Rule 608 provides specific time limits within which a motion for judgment of acquittal after a jury is discharged must be made and decided. If the judge fails to rule on the motion within 30 days of filing, the motion is denied by operation of law. Paragraph (B)(2) requires the clerk of courts to enter an order denying the motion and to notify the parties.

For the commencement of trial when the trial judge denies the motion or when the motion is denied by operation of law, see Rule 600(A).

Official Note

Former Rule 1125 adopted January 24, 1968, effective August 1, 1968; amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; rescinded July 1, 1980, effective August 1, 1980, and not replaced. Present Rule 1125 adopted March 22, 1993, effective as to cases in which trial commences on or after January 1, 1994; renumbered Rule 608 and amended March 1, 2000, effective April 1, 2001; Comment revised October 1, 2012, effective July 1, 2013.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the October 1, 2012, Comment revision changing the Rule 600 reference published with the Court’s Order at 42 Pa.B. 6629 (October 20, 2012).

The provisions of this Rule 608 amended October 1, 2012, effective July 1, 2013, 42 Pa.B. 6622. Immediately preceding text appears at serial pages (264312) and (360283).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 620 Waiver of Jury Trial. {#sec-rule-620 omnilex-key=us-pa-regs-official--title-234--Rule 620}

In all cases, the defendant and the attorney for the Commonwealth may waive a jury trial with approval by a judge of the court in which the case is pending, and elect to have the judge try the case without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record, and signed by the defendant, the attorney for the Commonwealth, the judge, and the defendant’s attorney as a witness.

The 1973 amendment ended the proscription, which had formerly appeared in this rule, against waiver of jury trials in capital cases. In doing so, the Court has departed from the language expressed, in the absence of specific rules to the contrary, in Commonwealth v. Petrillo, 16 A.2d 50, 56 (Pa. 1949) and Commonwealth v. Kirkland, 195 A.2d 338, 340 (Pa. 1963).

The 1999 amendment to this rule embodies the 1998 amendment to article I, [00a7] 6 of the Pennsylvania Constitution that provides that ‘‘the Commonwealth shall have the same right to trial by jury as does the accused.’’

It is intended that when deciding to permit a non-jury trial, the judge should take into account all relevant considerations. When the judge disapproves waiver of jury trial, the judge should state the reasons for the judge’s decision on the record. See Commonwealth v. Boyd, 467 A.2d 855 (Pa. Super. 1983) and Commonwealth v. Giaccio, 457 A.2d 875 (Pa. Super. 1983).

While this rule continues to require a written waiver of jury trial, the form of the written waiver was deleted in 1985 because it is no longer necessary to control the specific form of written waiver by rule.

When there are co-defendants, waiver of a jury trial with respect to one or more defendants does not preclude a jury trial for other defendants.

Official Note

Rule 1101 adopted January 24, 1968, effective August 1, 1968; amended March 29, 1973, effective 30 days hence; amended November 9, 1984, effective January 2, 1985; amended April 16, 1999, effective July 1, 1999; renumbered Rule 620 and Comment revised March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the April 16, 1999 amendments concerning the 1998 Constitutional amendment published with the Court’s Order at 29 Pa.B. 2290 (May 1, 1999).

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).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 621 Procedure When Jury Trial Is Waived. {#sec-rule-621 omnilex-key=us-pa-regs-official--title-234--Rule 621}

(A) When a jury trial is waived, the trial judge shall determine all questions of law and fact and render a verdict which shall have the same force and effect as a verdict of a jury.

(B) At any time before the commencement of trial, a waiver of a jury trial or the judge’s approval thereof may be withdrawn.

The 1999 amendment conforms this rule to the 1998 amendment to article I, § 6 of the Pennsylvania Constitution providing that ‘‘the Commonwealth shall have the same right to trial by jury as does the accused.’’

Paragraph (B) was amended in 1999 to make it clear that the defendant, the attorney for the Commonwealth, or the judge may unilaterally withdraw the jury trial waiver or the approval at any time before the commencement of trial. Concerning the time when trial commences, see Commonwealth v. Dowling, 598 Pa. 611, 619-620, 959 A.2d 910, 915 (2008) (holding that ‘‘trial commences for purposes of Pa.R.Crim.P. 621(B), when a court has begun to hear motions which have been reserved for the time of trial; when oral arguments have commenced; or when some other such substantive first step in the trial has begun’’). After commencement of trial, Rule 605 governs.

Paragraph (c) was deleted in 1999 to permit the defendant and the attorney for the Commonwealth to waive a jury trial with the court’s approval, under Rule 620, even after the withdrawal of a previous jury trial waiver.

When there are co-defendants, withdrawal of a waiver, or withdrawal of the judge’s approval, with respect to one or more defendants does not preclude a waiver and non-jury trial for other defendants.

Official Note

Rule 1102 adopted January 24, 1968, effective August 1, 1968; amended April 16, 1999, effective July 1, 1999; renumbered Rule 621 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised January 9, 2012, effective February 1, 2012.

Committee Explanatory Reports:

Final Report explaining the April 16, 1999 amendments concerning the 1998 Constitutional amendment published with the Court’s Order at 29 Pa.B. 2290 (May 1, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the January 9, 2012 Comment revision adding a citation to Commonwealth v. Dowling published with the Court’s Order at 42 Pa.B. 546 (January 28, 2012).

The provisions of this Rule 621 amended January 9, 2012, effective February 1, 2012, 42 Pa.B. 545. Immediately preceding text appears at serial pages (264314) and (318663).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 622 Time for Court Action Following Non-Jury Trial. {#sec-rule-622 omnilex-key=us-pa-regs-official--title-234--Rule 622}

(A) A verdict shall be rendered in all non-jury cases within 7 days after trial.

(B) In any case in which a summary offense is joined with the misdemeanor, felony, or murder charges that were tried before the trial judge, the trial judge shall render a verdict on the summary offense, and impose sentence if the judge finds the defendant guilty of the summary offense, even in cases in which the judge has dismissed or found the defendant not guilty on the misdemeanor, felony, or murder charges.

The 1993 amendment to this rule was prompted by the general revision of post-trial procedures reflected in large part by Rule 720 (Post-Sentence Procedures; Appeal). Before this amendment, Rule 622 was a hybrid. It contained time limits for decisions on several types of motions, and also contained a time limit for verdict in non-jury trials. As a result of the adoption of Rule 720, post-verdict motions for a new trial, for judgment of acquittal, and motions in arrest of judgment were moved to post-sentence under Rule 720. The procedures for a motion for judgment of acquittal after the jury is discharged without agreeing on a verdict were amended in 1993 and moved to Rule 608. Rule 622, as amended, only provides the time limit for verdict in a non-jury case.

Pursuant to Rule 543 (Disposition of Case at Preliminary Hearing), in cases in which there are summary offenses that are joined with the misdemeanor, felony, or murder charges, the issuing authority is prohibited from adjudicating or disposing of the summary offenses, and must forward the summary offenses to the court of common pleas for disposition with the charges held for court. Therefore, when a judge is the trier of fact as to the misdemeanors, felonies, or murder pursuant to this rule, the judge may not remand the summary offense to the issuing authority, but must dispose of the summary offense together with the misdemeanor, felony, and murder.

Official Note

Formerly Rule 302 adopted June 30, 1964, effective January 1, 1965; renumbered Rule 1122 and moved to Chapter 1100, June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; amended January 28, 1983, effective July 1, 1983; amended March 22, 1993, effective as to cases in which trial commences on or after January 1, 1994; renumbered Rule 622 and Comment revised March 1, 2000, effective April 1, 2001; amended March 9, 2006, effective September 1, 2006.

Committee Explanatory Reports:

Final Report explaining the March 22, 1993 amendments published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 3, 2006 amendments concerning joinder of summary offenses with misdemeanor, felony, or murder charges published with the Court’s Order at 36 Pa.B. 1392 (March 25, 2006).

The provisions of this Rule 622 amended March 9, 2006, effective September 1, 2006, 36 Pa.B. 1385. Immediately preceding text appears at serial page (265685).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 625 Juror Qualification Form, Lists of Trial Jurors, and Challenge to the Array. {#sec-rule-625 omnilex-key=us-pa-regs-official--title-234--Rule 625}

(A) JUROR QUALIFICATION FORM AND LISTS OF TRIAL JURORS.

(1) The officials designated by law to select persons for jury service shall:

(a) devise, distribute, and maintain juror qualification forms as provided by law;

(b) prepare, publish, and post lists of the names of persons to serve as jurors as provided by law; and

(c) upon the request of the attorney for the Commonwealth or the defendant’s attorney, furnish the list containing the names of prospective jurors prepared pursuant to paragraph (A)(1)(b); and

(d) make available for review and copying copies of the juror qualification forms returned by the prospective jurors.

(2) The information provided on the juror qualification form shall be confidential and limited to questions of the jurors’ qualifications.

(3) The original and any copies of the juror qualification form shall not constitute a public record.

(B) CHALLENGE TO THE ARRAY.

(1) Unless opportunity did not exist prior thereto, a challenge to the array shall be made not later than 5 days before the first day of the week the case is listed for trial of criminal cases for which the jurors have been summoned and not thereafter, and shall be in writing, specifying the facts constituting the ground for the challenge.

(2) A challenge to the array may be made only on the ground that the jurors were not selected, drawn, or summoned substantially in accordance with law.

The qualification, selection, and summoning of prospective jurors, as well as related matters, are generally dealt with in Chapter 45, Subchapters A—C, of the Judicial Code, 42 Pa.C.S. § § 4501—4503, 4521—4526, 4531—4532. ‘‘Law’’ as used in paragraph (B)(2) of this rule is intended to include these Judicial Code provisions. However, paragraphs (B)(1) and (2) of this rule are intended to supersede the procedures set forth in Section 4526(a) of the Judicial Code and that provision is suspended as being inconsistent with this rule. See PA. CONST. art. V, § 10; 42 Pa.C.S. § 4526(c). Sections 4526(b) and (d)—(f) of the Judicial Code are not affected by this rule.

Paragraph (A) was amended in 1998 to require that the counties use the juror qualification forms provided for in Section 4521 of the Judicial Code, 42 Pa.C.S. § 4521. It is intended that the attorneys in a case may inspect and copy or photograph the jury lists and the qualification forms for the prospective jurors summoned for their case. The information on the qualification forms is not to be disclosed except as provided by this rule or by statute. This rule is different from Rule 632, which requires that jurors complete the standard, confidential information questionnaire for use during voir dire.

Official Note

Adopted January 24, 1968, effective August 1, 1968; Comment revised January 28, 1983, effective July 1, 1983; amended September 15, 1993, effective January 1, 1994; September 15, 1993 amendments suspended December 17, 1993 until further Order of the Court; the September 15, 1993 Order amending Rule 1104 is superseded by the September 18, 1998 Order, and Rule 1104 is amended September 18, 1998, effective July 1, 1999; amended May 14, 1999, effective July 1, 1999; renumbered Rule 630 March 1, 2000, effective April 1, 2001; amended March 28, 2000, effective July 1, 2000; renumbered Rule 625 July 7, 2015, effective October 1, 2015.

Committee Explanatory Reports:

Report explaining the September 15, 1993 amendments published at 21 Pa.B. 150 (January 12, 1991). Order suspending, until further Order of the Court, the September 15, 1993 amendments concerning juror information questionnaires published at 24 Pa.B. 333 (January 15, 1994).

Final Report explaining the September 18, 1998 amendments concerning juror information questionnaires published with the Court’s Order at 28 Pa.B. 4887 (October 3, 1998).

Final Report explaining the May 14, 1999 amendments placing titles in paragraphs (A) and (B) published with the Court’s Order at 29 Pa.B. 2778 (May 29, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1956 (April 15, 2000).

Final Report explaining the July 7, 2015 renumbering of Rule 630 to Rule 625 published with the Court’s Order at 45 Pa.B. 3985 (July 25, 2015).

The provisions of this Rule 630 amended March 28, 2000, effective July 1, 2000, 30 Pa.B. 1955; renumbered as Rule 625 and amended July 7, 2015, effective October 1, 2015, 45 Pa.B. 3980. Immediately preceding text appears at serial pages (360286), (318665) and (265687).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 626 Preliminary Instructions to Prospective and Selected Jurors. {#sec-rule-626 omnilex-key=us-pa-regs-official--title-234--Rule 626}

(A) For purposes of this rule,

(1) the term ‘‘prospective jurors’’ means those persons who have been chosen to be part of the panel from which the trial jurors and alternate jurors will be selected;

(2) the term ‘‘selected jurors’’ means those members of the panel who have been selected to serve as trial jurors or alternate jurors; and

(3) the term ‘‘jury service’’ means service as (1) members of the jury array, (2) prospective jurors, and (3) selected jurors.

(B) Persons reporting for jury service, upon their arrival for this service, shall be instructed in their duties while serving as prospective jurors and selected jurors.

(C) At a minimum, the persons reporting for jury service shall be instructed that until their service as prospective or selected jurors is concluded, they shall not:

(1) discuss any case in which they have been chosen as prospective jurors or selected jurors with others, including other jurors, except as instructed by the court;

(2) read or listen to any news reports about any such case;

(3) use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation. These devices may be used during breaks or recesses but never may be used to obtain or disclose information prohibited in paragraph (C)(4);

(4) use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose any information about any case in which they have been chosen as prospective or selected jurors. Information about the case includes, but is not limited to, the following:

(i) information about a party, witness, attorney, judge, or court officer;

(ii) news reports of the case;

(iii) information collected through juror research using such devices about the facts of the case;

(iv) information collected through juror research using such devices on any topics raised or testimony offered by any witness;

(v) information collected through juror research using such devices on any other topic the juror might think would be helpful in deciding the case.

(D) These instructions shall be repeated:

(1) to the prospective jurors at the beginning of voir dire;

(2) to the selected jurors at the commencement of the trial;

(3) to the selected jurors prior to deliberations; and

(4) to the selected jurors during trial as the trial judge deems appropriate.

(E) Jurors shall be instructed that they are required to inform the court immediately of any violation of this rule.

This rule was adopted in 2015 in recognition of the fact that the proliferation of personal communications devices has provided individuals with an unprecedented level of access to information. This access has the potential for abuse by prospective jurors who might be tempted to perform research about a case for which they may be selected. Therefore, the rule requires that prospective jurors be instructed at the earliest possible stage as to their duty to rely solely on information presented in a case and to refrain from discussion about the case, either in person or electronically.

It is recommended that the juror summons also contain the language.

It also is recommended, as an additional means of ensuring adherence, that the judge explain to the prospective jurors the reason for these restrictions. This explanation should include a statement that, in order for the jury system to work as intended, absolute impartiality on the part of the jurors is necessary. Such impartiality is achieved by restricting the information upon which the jurors will base their decision to that which is presented in court.

Official Note

Adopted July 7, 2015, effective October 1, 2015.

Committee Explanatory Reports:

Final Report explaining the July 7, 2015 adoption of new Rule 626 regarding instructions to prospective jurors published with the Court’s Order at 45 Pa.B. 3985 (July 25, 2015).

The provisions of this Rule 626 adopted July 7, 2015, effective October 1, 2015, 45 Pa.B. 3980.

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 627 Sanctions for Use of Prohibited Electronic Devices. {#sec-rule-627 omnilex-key=us-pa-regs-official--title-234--Rule 627}

Any individual who violates the provisions of Rule 112(A) prohibiting recording or broadcasting during a judicial proceeding or who violates the Court’s instructions required by Rule 626 regarding the use of electronic devices by jurors or who violates any limitation imposed by a local rule or by the trial judge regarding the prohibited use of electronic devices during court proceedings:

(1) may be found in contempt of court and sanctioned in accordance with 42 Pa.C.S. § 4132 et seq.; and

(2) may be subject to sanctions deemed appropriate by the trial judge, including, but not limited to, the confiscation of the electronic device that is used in violation of these rules.

This rule was adopted in 2015 to make clear that in addition to the penalties for contempt that may be imposed upon an individual who violates these rules or a court-imposed restriction on the use of electronic devices during court proceedings, such devices may be temporarily or permanently confiscated by the court.

Official Note

Adopted July 7, 2015, effective October 1, 2015.

Committee Explanatory Reports:

Final Report explaining the July 7, 2015 adoption of new Rule 627 regarding sanctions for use of prohibited communications devices published with the Court’s Order at 45 Pa.B. 3985 (July 25, 2015).

The provisions of this Rule 627 adopted July 7, 2015, effective October 1, 2015, 45 Pa.B. 3980.

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 631 Examination and Challenges of Trial Jurors. {#sec-rule-631 omnilex-key=us-pa-regs-official--title-234--Rule 631}

(A) Voir dire of prospective trial jurors and prospective alternate jurors shall be conducted, and the jurors shall be selected, in the presence of a judge, unless the judge’s presence is waived by the attorney for the Commonwealth, the defense attorney, and the defendant, with the judge’s consent.

(B) This oath shall be administered individually or collectively to the prospective jurors:

‘‘You do solemnly swear by Almighty God (or do declare and affirm) that you will answer truthfully all questions that may be put to you concerning your qualifications for service as a juror.’’

(C) Upon completion of the oath, the judge shall instruct the prospective jurors upon their duties and restrictions while serving as jurors, and of any sanctions for violation of those duties and restrictions, including those provided in Rule 626(C) and Rule 627.

(D) Voir dire, including the judge’s ruling on all proposed questions, shall be recorded in full unless the recording is waived. The record will be transcribed only upon written request of either party or order of the judge.

(E) Prior to voir dire, each prospective juror shall complete the standard, confidential juror information questionnaire as provided in Rule 632. The judge may require the parties to submit in writing a list of proposed questions to be asked of the jurors regarding their qualifications. The judge may permit the defense and the prosecution to conduct the examination of prospective jurors or the judge may conduct the examination. In the latter event, the judge shall permit the defense and the prosecution to supplement the examination by such further inquiry as the judge deems proper.

(F) In capital cases, the individual voir dire method must be used, unless the defendant waives that alternative. In non-capital cases, the trial judge shall select one of the following alternative methods of voir dire, which shall apply to the selection of both jurors and alternates:

(1) INDIVIDUAL VOIR DIRE AND CHALLENGE SYSTEM.

(a) Voir dire of prospective jurors shall be conducted individually and may be conducted beyond the hearing and presence of other jurors.

(b) Challenges, both peremptory and for cause, shall be exercised alternately, beginning with the attorney for the Commonwealth, until all jurors are chosen. Challenges shall be exercised immediately after the prospective juror is examined. Once accepted by all parties, a prospective juror shall not be removed by peremptory challenge. Without declaring a mistrial, a judge may allow a challenge for cause at any time before the jury begins to deliberate, provided sufficient alternates have been selected, or the defendant consents to be tried by a jury of fewer than 12, pursuant to Rule 641.

(2) LIST SYSTEM OF CHALLENGES.

(a) A list of prospective jurors shall be prepared. The list shall contain a sufficient number of prospective jurors to total at least 12, plus the number of alternates to be selected, plus the total number of peremptory challenges (including alternates).

(b) Prospective jurors may be examined collectively or individually regarding their qualifications. If the jurors are examined individually, the examination may be conducted beyond the hearing and presence of other jurors.

(c) Challenges for cause shall be exercised orally as soon as the cause is determined.

(d) When a challenge for cause has been sustained, which brings the total number on the list below the number of 12 plus alternates, plus peremptory challenges (including alternates), additional prospective jurors shall be added to the list.

(e) Each prospective juror subsequently added to the list may be examined as set forth in paragraph (F)(2)(b).

(f) When the examination has been completed and all challenges for cause have been exercised, peremptory challenges shall then be exercised by passing the list between prosecution and defense, with the prosecution first striking the name of a prospective juror, followed by the defense, and alternating thereafter until all peremptory challenges have been exhausted. If either party fails to exhaust all peremptory challenges, the jurors last listed shall be stricken. The remaining jurors and alternates shall be seated. No one shall disclose which party peremptorily struck any juror.

This rule applies to all cases, regardless of potential sentence. Formerly there were separate rules for capital and non-capital cases.

If Alternative (F)(1) is used, examination continues until all peremptory challenges are exhausted or until 12 jurors and 2 alternates are accepted. Challenges must be exercised immediately after the prospective juror is questioned. In capital cases, only Alternative (F)(1) may be used unless affirmatively waived by all defendants and the Commonwealth, with the approval of the trial judge.

If Alternative (F)(2) is used, sufficient jurors are assembled to total 12, plus the number of alternates, plus at least the permitted number of peremptory challenges (including alternates). It may be advisable to assemble additional jurors to encompass challenges for cause. Prospective jurors may be questioned individually, out of the presence of other prospective jurors, as in Alternative (F)(1); or prospective jurors may be questioned in the presence of each other. Jurors may be challenged only for cause, as the cause arises. If the challenges for cause reduce the number of prospective jurors below 12, plus alternates, plus peremptory challenges (including alternates), new prospective jurors are called and they are similarly examined. When the examination is completed, the list is reduced, leaving only 12 jurors to be selected, plus the number of peremptories to be exercised; and sufficient additional names to total the number of alternates, plus the peremptories to be exercised in selecting alternates. The parties then exercise the peremptory challenges by passing the list back and forth and by striking names from the list alternately, beginning with counsel for the prosecution. Under this system, all peremptory challenges must be utilized. Alternates are selected from the remaining names in the same manner. Jurors are not advised by whom each peremptory challenge was exercised. Also, under Alternative (F)(2), prospective jurors will not know whether they have been chosen until the challenging process is complete and the roll is called.

This rule requires that prospective jurors be sworn before questioning under either Alternative.

The words in parentheses in the oath shall be inserted when any of the prospective jurors chooses to affirm rather than swear to the oath.

Unless the judge’s presence during voir dire and the jury selection process is waived pursuant to paragraph (A), the judge must be present in the jury selection room during voir dire and the jury selection process.

Pursuant to paragraph (E), which was amended in 1998, and Rule 632, prospective jurors are required to complete the standard, confidential juror information questionnaire prior to voir dire. This questionnaire, which facilitates and expedites voir dire, provides the judge and attorneys with basic background information about the jurors, and is intended to be used as an aid in the oral examination of the jurors.

The point in time prior to voir dire that the questionnaires are to be completed is left to the discretion of the local officials. Nothing in this rule is intended to require that the information questionnaires be mailed to jurors before they appear in court pursuant to a jury summons.

See Rule 103 for definitions of ‘‘capital case’’ and ‘‘voir dire.’’

Official Note

Adopted January 24, 1968, effective August 1, 1968; amended May 1, 1970, effective May 4, 1970; amended June 30, 1975, effective September 28, 1975. The 1975 amendment combined former Rules 1106 and 1107. Comment revised January 28, 1983, effective July 1, 1983; amended September 15, 1993, effective January 1, 1994. The September 15, 1993 amendments suspended December 17, 1993 until further Order of the Court; amended February 27, 1995, effective July 1, 1995; the September 15, 1993 Order amending Rule 1106 is superseded by the September 18, 1998 Order, and Rule 1106 is amended September 18, 1998, effective July 1, 1999; renumbered Rule 631 and amended March 1, 2000, effective April 1, 2001; amended July 7, 2015, effective October 1, 2015.

Committee Explanatory Reports:

Report explaining the September 15, 1993 amendments published at 21 Pa.B. 150 (January 12, 1991). Order suspending, until further Order of the Court, the September 15, 1993 amendments concerning juror information questionnaires published at 24 Pa.B. 333 (January 15, 1994).

Final Report explaining the February 27, 1995 amendments published with the Court’s Order at 25 Pa.B. 948 (March 18, 1995).

Final Report explaining the September 18, 1998 amendments concerning juror information questionnaires published with the Court’s Order at 28 Pa.B. 4887 (October 3, 1998).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the July 7, 2015 amendment regarding instructions to the prospective jurors published with the Court’s Order at 45 Pa.B. 3985 (Juy 25, 2015).

The provisions of this Rule 631 amended July 7, 2015, effective October 1, 2015, 45 Pa.B. 3980. Immediately preceding text appears at serial pages (265687) to (265689) and (264319).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 632 Juror Information Questionnaire. {#sec-rule-632 omnilex-key=us-pa-regs-official--title-234--Rule 632}

(A) Prior to voir dire:

(1) Each prospective juror shall complete and verify the standard, confidential juror information questionnaire required by paragraph (H) of this rule, and any supplemental questionnaire provided by the court.

(2) The president judge shall designate the method for distributing and maintaining the juror information questionnaires.

(3) The trial judge and the attorneys shall receive copies of the completed questionnaires for use during voir dire, and the attorneys shall be given a reasonable opportunity to examine the questionnaires.

(B) The information provided by the jurors on the questionnaires shall be confidential and limited to use for the purpose of jury selection only. Except for disclosures made during voir dire, or unless the trial judge otherwise orders pursuant to paragraph (F), this information shall only be made available to the trial judge, the defendant(s) and the attorney(s) for the defendant(s), and the attorney for the Commonwealth.

(C) The original and any copies of the juror information questionnaires shall not constitute a public record.

(D) Juror information questionnaires shall be used in conjunction with the examination of the prospective jurors conducted by the judge or counsel pursuant to Rule 631(E).

(E) If the court adjourns before voir dire is completed, the trial judge may order that the attorneys be permitted to retain their copies of the questionnaires during the adjournment. When copies of the questionnaires are permitted to be taken from the courtroom, the copies:

(1) shall continue to be subject to the confidentiality requirements of this rule, and to the disclosure requirements of paragraph (B); and

(2) shall not be duplicated, distributed, or published.

The trial judge may make such other order to protect the copies as is appropriate.

(F) The original questionnaires of all impaneled jurors shall be retained in a sealed file and shall be destroyed upon completion of the jurors’ service, unless otherwise ordered by the trial judge. Upon completion of voir dire, all copies of the questionnaires shall be returned to the trial judge and destroyed, unless otherwise ordered by the trial judge at the request of the defendant(s), the attorney(s) for the defendant(s), or the attorney for the Commonwealth.

(G) The original and any copies of questionnaires of all prospective jurors not impaneled or not selected for any trial shall be destroyed upon completion of the jurors’ service.

(H) The form of the juror information questionnaire shall be as follows:

I hereby certify that the answers on this form are true and correct. I understand that false answers provided herein subject me to penalties under 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. SIGNATURE

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 633 Examination and Challenges of Alternate Trial Jurors. {#sec-rule-633 omnilex-key=us-pa-regs-official--title-234--Rule 633}

(A) The trial judge may direct that a reasonable even number of jurors in addition to the principal jurors be called and impaneled to sit as alternate jurors.

(B) When alternate jurors are selected in trials involving only one defendant, the defendant and the Commonwealth shall each be entitled to one peremptory challenge for each 2 alternate jurors to be selected. When alternate jurors are selected in trials involving joint defendants, each defendant shall be entitled to one peremptory challenge for each two 2 alternate jurors to be selected and the Commonwealth shall be entitled to peremptory challenges equal in number to the total number of peremptory challenges given to all of the defendants. All peremptory challenges remaining unexercised after the selection of the principal 12 jurors shall be considered exhausted, and in no case may the challenges reserved for the selection of alternates be added to the number allowed during the selection of the principal 12.

(C) Alternate jurors shall be examined, challenged, and selected in the same manner as the principal jurors.

The last two sentences of paragraph (A) were moved to new Rule 645 as part of the reorganization of the rules in 2000.

Paragraph (B) of this rule sets forth the number of peremptory challenges for the selection of alternate trial jurors and is intended to replace the Act of May 1, 1935, P. L. 127, No. 50, 51, insofar as it applied to criminal trials. That Act was repealed by the Judiciary Act Repealer Act, 42 P. S. § 20002(a) [1156] [(1979)].

The number of peremptory challenges for the selection of principal trial jurors is governed by Rule 634. Paragraph (B) reflects the different treatment, under Rule 634, of trials involving only one defendant and trials involving joint defendants.

Official Note

Rule 1108 adopted January 24, 1968, effective August 1, 1968; amended June 30, 1975, effective September 28, 1975; amended July 1, 1980, effective August 1, 1980; renumbered Rule 633 and amended March 1, 2000, effective April 1, 2001.

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. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 634 Number of Peremptory Challenges. {#sec-rule-634 omnilex-key=us-pa-regs-official--title-234--Rule 634}

(A) Trials Involving Only One Defendant:

(1) In trials involving misdemeanors only and when there is only one defendant, the Commonwealth and the defendant shall each be entitled to 5 peremptory challenges.

(2) In trials involving a non-capital felony and when there is only one defendant, the Commonwealth and the defendant shall each be entitled to 7 peremptory challenges.

(3) In trials involving a capital felony and when there is only one defendant, the Commonwealth and the defendant shall each be entitled to 20 peremptory challenges.

(B) Trials Involving Joint Defendants:

(1) In trials involving joint defendants, the defendants shall divide equally among them that number of peremptory challenges that the defendant charged with the highest grade of offense would have received if tried separately; provided, however, that each defendant shall be entitled to at least 2 peremptory challenges. When such division of peremptory challenges among joint defendants results in a fraction of a peremptory challenge, each defendant shall be entitled to the next highest number of such challenges.

(2) In trials involving joint defendants, it shall be within the discretion of the trial judge to increase the number of peremptory challenges to which each defendant is entitled up to the number of peremptory challenges that each defendant would have received if tried alone.

(3) In trials involving joint defendants, the Commonwealth shall be entitled to peremptory challenges equal in number to the total number of peremptory challenges given to all of the defendants.

This rule governs the number of peremptory challenges for the selection of principal trial jurors. The number of peremptory challenges for the selection of alternate trial jurors is set forth in Rule 633.

Previous Rule 1126 was adopted after the abolition of the Courts of Oyer and Terminer and General Jail Delivery, and served to preserve the number of peremptory challenges established with reference to such courts by the Act of March 6, 1901, P. L. 16, § 1, as amended by Act of July 9, 1901, P. L. 629, § 1. That rule was rescinded in 1977 in view of the Act of October 7, 1976, P. L. 1089, No. 217, § § 1—2, which repealed the 1901 peremptory challenge statute and established the number of peremptory challenges without reference to the abolished courts.

Present Rule 634 (then-Rule 1126) was adopted in 1980 after the Act of October 7, 1976, P. L. 1089, No. 217, § 1, and other statutory provisions relating to peremptory challenges (see Act of March 31, 1860, P. L. 427, § 40, as amended by Act of October 7, 1976, P. L. 1055, No. 213, § 1) were repealed by the Judiciary Act Repealer Act, 42 P. S. § 20002(a) [377], [1479] (1979). Although this rule is intended to replace the repealed statutes as to peremptory challenges, the rule retains the number of peremptories that was established by such statutes.

When offenses of different grades are charged in a case, the number of peremptory challenges is intended to be determined by the highest grade of offense charged; cumulation is not intended.

Official Note

Previous Rule 1126 adopted December 24, 1968, effective January 1, 1969; rescinded May 26, 1977, effective July 1, 1977; present Rule 1126 adopted July 1, 1980, effective August 1, 1980; renumbered Rule 634 and amended March 1, 2000, effective April 1, 2001; Comment revised September 21, 2012, effective November 1, 2012.

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. 1478 (March 18, 2000).

Final Report explaining the September 21, 2012 revision to the first and third paragraphs of the Comment correcting typographical errors published with the Court’s Order at 42 Pa.B. 6251 (October 6, 2012).

The provisions of this Rule 634 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (311410) and (264325) to (264326).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 635 Exhaustion of the Jury Panel. {#sec-rule-635 omnilex-key=us-pa-regs-official--title-234--Rule 635}

When a sufficient number of qualified jurors are not present to permit selection of a jury, the court shall:

(1) Require the officials designated by law to summon prospective jurors to summon and return immediately from the county at large as many qualified and competent persons as shall be necessary; or

(2) Order in writing that the officials designated by law to summon prospective jurors produce the jury wheel or master list in open court in the presence of the judge, and draw therefrom five names for each juror required. A venire shall then be issued requiring that those persons so drawn be brought into court at a time certain.

While this rule continues to require a written order, the form of the order was deleted in 1985 because it is no longer necessary to control the specific form of order by rule.

See also Sections 4524, 4525, 4531, and 4532 of the Judicial Code, 42 Pa.C.S. § § 4524, 4525, 4531, 4532, with regard to juror selection and summoning.

Section 4584 of the Judicial Code, 42 Pa.C.S. § 4584, prescribes the penalty when a person summoned refuses to serve.

Official Note

Rule 1109 adopted January 24, 1968, effective August 1, 1968; Comment revised January 28, 1983, effective July 1, 1983; amended November 9, 1984, effective January 2, 1985; renumbered Rule 635 and amended March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 640 Swearing the Trial Jury to Hear the Cause. {#sec-rule-640 omnilex-key=us-pa-regs-official--title-234--Rule 640}

(A) After all jurors have been selected, the jury, including any alternates, shall be sworn as a body to hear the cause.

(B) The following oath shall be administered:

‘‘You do solemnly swear by Almighty God and those of you who affirm do declare and affirm that you will well and truly try the issue joined between the Commonwealth and the defendant(s), and a true verdict render according to the evidence.’’

The bracketed words in the oath shall be inserted when any of the prospective jurors choose to affirm rather than to swear to the oath. Those persons who may administer oaths are provided for in Section 327 of the Judicial Code, 42 Pa.C.S. § 327.

Official Note

Rule 1110 adopted January 24, 1968, effective August 1, 1968; Comment revised January 28, 1983, effective July 1, 1983; renumbered Rule 640 and amended March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 641 Consent to Be Tried by Less Than Twelve Jurors. {#sec-rule-641 omnilex-key=us-pa-regs-official--title-234--Rule 641}

In all cases, at any time after a jury of 12 is initially sworn and before verdict, the defendant and the attorney for the Commonwealth, with approval of the judge, may agree to a jury of fewer than 12 but not fewer than 6. Such agreement shall be made a part of the record. The verdict in such a case shall have the same force and effect as a verdict by a jury of 12.

The 1999 amendment conforms this rule to the 1998 amendment to article I, § 6 of the Pennsylvania Constitution providing that ‘‘the Commonwealth shall have the same right to trial by jury as does the accused.’’

Official Note

Rule 1103 adopted January 24, 1968, effective August 1, 1968; amended September 22, 1976, effective November 1, 1976; amended April 16, 1999, effective July 1, 1999; renumbered Rule 641 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the April 16, 1999 amendments concerning the 1998 Constitutional amendment published with the Court’s Order at 29 Pa.B. 2290 (May 1, 1999).

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).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 642 Sequestration of Trial Jurors. {#sec-rule-642 omnilex-key=us-pa-regs-official--title-234--Rule 642}

(A) The trial judge may, in the judge’s discretion, order sequestration of trial jurors in the interests of justice.

(B) When sequestration is ordered, each juror, including any alternate, shall be sequestered from the time of acceptance as a juror until discharged.

(C) Nothing is paragraph (B) shall prevent a trial judge from ordering sequestration, or vacating the order of sequestration, at any time during a trial when the interests of justice require.

Under this rule sequestration is available in all cases, capital and non-capital, at the discretion of the trial judge. The prior rule required sequestration of each juror in a capital case from the time of acceptance as a juror until discharge of the jury.

Official Note

Prior Rule 1111 adopted January 24, 1968, effective August 1, 1968; rescinded April 26, 1973, effective 15 days hence. New Rule 1111 adopted April 26, 1973, effective 15 days hence; Comment revised January 28, 1983, effective July 1, 1983; renumbered Rule 642 and amended March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 643 View by Jury. {#sec-rule-643 omnilex-key=us-pa-regs-official--title-234--Rule 643}

(A) The trial judge may in the judge’s discretion order a view by the jury.

(B) The trial judge, the attorney for the Commonwealth, the defendant and defendant’s attorney shall be present at the view, except as provided in Rule 602.

This rule changes the present law in Pennsylvania requiring the presence of the defendant at a view by the jury. See Commonwealth v. Darcy, 66 A.2d 663 (Pa. 1949), Commonwealth v. Sallade, 97 A.2d 528 (Pa. 1953).

Official Note

Rule 1112 adopted January 24, 1968, effective August 1, 1968; renumbered Rule 643 and amended March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 644 [Rescinded]. {#sec-rule-644 omnilex-key=us-pa-regs-official--title-234--Rule 644}

(A) Jurors shall be permitted to take notes during opening statements, the presentation of evidence, and closing arguments for their use during deliberations.

(1) The jurors shall not take notes during the judge’s charge at the conclusion of the trial.

(2) The court shall provide materials to the jurors that are suitable for note taking. These are the only materials that may be used by the jurors for note taking.

(3) The court, the attorney for the Commonwealth, and the defendant’s attorney, or the defendant if unrepresented, shall not request or suggest that jurors take notes, comment on the jurors’ note taking, or attempt to read any notes.

(4) The notes of the jurors shall remain in the custody of the court at all times.

(5) The jurors may have access to their notes and use their notes only during the trial and deliberations. The notes shall be collected or maintained by the court at each break and recess, and at the end of each day of the trial.

(6) The notes of the jurors shall be confidential and limited to use for the jurors’ deliberations.

(7) Before announcing the verdict, the jury shall return their notes to the court. The notes shall be destroyed by court personnel without inspection upon the discharge of the jury.

(8) The notes shall not be used as a basis for a request for a new trial, and the judge shall deny any request that the jurors’ notes be retained and sealed pending a request for a new trial.

(B) The judge shall instruct the jurors about taking notes during the trial. At a minimum, the judge shall instruct the jurors that:

(1) the jurors are not required to take notes, and those jurors who take notes are not required to take extensive notes;

(2) note taking should not divert jurors from evaluating witness credibility or from paying full attention to the evidence, opening statements, and closing arguments;

(3) the notes merely are memory aids, not evidence or the official record;

(4) the jurors who take few or no notes should not permit their independent recollection of the evidence to be influenced by the fact that other jurors have taken notes;

(5) the jurors may not show their notes or disclose the contents of the notes to other jurors until deliberations begin, but may show the notes or disclose the contents during deliberations;

(6) the jurors may not take their notes out of the courtroom except to use their notes during deliberations; and

(7) the jurors’ notes are confidential, will not be reviewed by the court or anyone else, will be collected before the verdict is announced, and will be destroyed immediately upon discharge of the jury.

The judge must instruct the jurors concerning the note taking. Paragraph (B) sets forth the minimum information the judge must explain to the jurors. The judge also must emphasize the confidentiality of the notes.

It is strongly recommended the judge instruct the jurors along the lines of the following:

We will distribute notepads and pens to each of you in the event you wish to take notes during the trial. You are under no obligation to take notes and it is entirely up to you whether you wish to take notes to help you remember what witnesses said and to use during your deliberations.

If you do take notes, remember that one of your responsibilities as a juror is to observe the demeanor of witnesses to help you assess their credibility. Do not become so involved with note taking that it interferes with your ability to observe a witness or distracts you from hearing the questions being asked the witness and the answers being given by the witness.

You may also take notes during the opening statements and closing arguments of the attorneys. Again, if you do take notes, do not become so involved with note taking that it prevents you from paying attention to the remainder of the opening statement or closing argument.

Your notes may help you refresh your recollection of the evidence as well as the attorneys’ opening statements and closing arguments. Your notes should be treated as a supplement to, rather than a substitute for, your memory. Your notes are only to be used by you as memory aids and should not take precedence over your independent recollection of the facts.

Those of you who do not take notes should not be overly influenced by the notes of other jurors. It is just as easy to write something down incorrectly as it is to remember it incorrectly and your fellow jurors’ notes are entitled to no greater weight than each juror’s independent memory. Although you may refer to your notes during deliberations, give no more or no less weight to the view of a fellow juror just because that juror did or did not take notes. Although you are permitted to use your notes for your deliberations, the only notes you may use are the notes you write in the courtroom during the proceedings on the materials distributed by the court staff.

Each time that we adjourn, your notes will be collected and secured by court staff. Your notes are completely confidential and neither I nor any member of the court’s staff will read your notes, now or at any time in the future. After you have reached a verdict in this case, your notes will be destroyed immediately by court personnel. Pennsylvania Bar Association Civil Litigation Update, Juror Note-taking in Civil Trials: An Idea Whose Time Has Come, Volume 5, No. 2 (Spring 2002), at 12.

Pursuant to paragraph (B)(6), the jurors are not permitted to remove the notes from the courtroom during the trial.

Pursuant to paragraph (A)(7), the judge must ensure the notes are collected and destroyed immediately after the jury renders its verdict. The court may designate a court official to collect and destroy the notes.

Official Note

Rule 1113 adopted January 24, 1968, effective August 1, 1968; renumbered Rule 644 and Comment revised March 1, 2000, effective April 1, 2001. Rule 644 rescinded June 30, 2005, effective August 1, 2005. New Rule 644 adopted June 30, 2005, effective August 1, 2005; amended August 7, 2008, effective immediately; amended December 3, 2021, effective April 1, 2022.

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. 1478 (March 18, 2000).

Final Report explaining the provisions of new Rule 644 allowing note taking by jurors published with the Court’s Order at 35 Pa.B. 3917 (July 16, 2005).

Final Report explaining the August 7, 2008 amendments making permanent the provisions of Rule 644 allowing note taking by jurors published with the Court’s Order at 38 Pa.B. 4606 (August 23, 2008).

Adoption Report explaining amendments permitting note taking by jurors during the presentation of evidence, opening statements, and closing arguments published with the Court’s Order at 51 Pa.B. 7864 (December 18, 2021).

The provisions of this Rule 644 adopted June 30, 2005, effective August 1, 2005, 35 Pa.B. 3917; amended August 7, 2008, effective immediately, 38 Pa.B. 4606; amended December 3, 2021, effective April 1, 2022, 51 Pa.B. 7863. Immediately preceding text appears at serial pages (337913) to (337914) and (377929).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 645 Seating and Retention of Alternate Jurors. {#sec-rule-645 omnilex-key=us-pa-regs-official--title-234--Rule 645}

(A) Alternate jurors, in the order in which they are called, shall replace principal jurors who become unable or disqualified to perform their duties.

(B) Alternate jurors shall be retained after the jury retires to consider its verdict. The trial judge shall instruct the retained alternate jurors to continue to observe the admonitions to jurors until they are informed that a verdict has been returned or the jury has been discharged. A retained alternate juror shall not be permitted to be present in the jury room during deliberations unless he or she replaces a principal juror as provided in paragraph (C).

(C) After the jury has retired to consider its verdict, a principal juror who becomes unable to perform his or her duties or is disqualified may be replaced with a retained alternate juror only if the trial judge is satisfied that the proper jury function is not harmed by the replacement. To ensure this, the trial judge shall:

(1) colloquy the alternate juror on the record that the alternate juror has not been exposed to any improper influences; and

(2) once the jury is reconstituted following the replacement of the principal juror by the alternate juror, colloquy and instruct the reconstituted jury on the record that:

(a) the jurors understand that the reason the discharged juror was being replaced has nothing to do with the discharged juror’s views on the case; and

(b) the reconstituted jury understands that they must set aside and disregard all past deliberations and begin deliberations anew so as to eliminate the influence of the excused juror and so that the reconstituted jury will consider the evidence in the context of full and complete deliberations with the new juror.

This rule is derived from the last two sentences of former Rule 1108(a). See Rule 633 for the procedures for the examination and challenges of alternate trial jurors.

This rule was amended in 2013 to require that alternate jurors be retained after the jury retires to consider its verdict and to permit the trial judge to seat an alternate juror when a principal juror is unable to perform his or her duties or is disqualified, and requires replacement. The amendment recognizes that, in cases in which a principal juror becomes unable to serve after deliberations have begun, substitution of a retained alternate juror will be an appropriate alternative to the remedy of a mistrial so long as appropriate steps are taken to ensure that the jury function is not compromised. Paragraph (C) provides the required colloquies and instructions that must be placed on the record when a principal juror is replaced by an alternate juror after the jury has retired to consider its verdict. See also Commonwealth v. Saunders, 686 A.2d 25 (Pa. Super. 1996) (replacement of a principal by an alternate juror is proper if steps have been taken to ensure that the jury function remains protected).

The rule does not require that all retained alternate jurors be sequestered. Rather, it is within the discretion of the trial judge to determine what restrictions are placed upon the retained alternate jurors to ensure that the alternate jurors are available and eligible for substitution should that be necessary. Whatever level of sequestration is applied to the principal jurors should also be applied to the alternate jurors.

Retained alternate jurors remain in jury service, subject to all conditions thereof, until all jurors have been discharged. See, e.g., 42 Pa.C.S. § 4561.

When an alternate is seated pursuant to paragraph (C), the trial judge has the discretion in re-instructing the reconstituted jury with the original charge in whole or in part.

Nothing in the rule was intended to preclude an agreement among the parties to be tried by less than 12 jurors as provided in Rule 641.

Official Note

New Rule 645 adopted March 1, 2000, effective April 1, 2001; amended November 19, 2013, effective January 1, 2014.Committee Explanatory Reports:

Final Report explaining the reorganization and renumbering of the rules and the provisions of Rule 645 published at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the November 19, 2013 amendment requiring the retention and permitting the substitution of alternate jurors after deliberations have begun published with the Court’s Order at 43 Pa.B. 7077 (December 7, 2013).

The provisions of this Rule 645 amended November 19, 2013, effective January 1, 2014, 43 Pa.B. 7076. Immediately preceding text appears at serial page (361897).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 646 Material Permitted in Possession of the Jury. {#sec-rule-646 omnilex-key=us-pa-regs-official--title-234--Rule 646}

(A) Upon retiring, the jury may take with it such exhibits as the trial judge deems proper, except as provided in paragraph (C).

(B) The trial judge may permit the members of the jury to have for use during deliberations written copies of the portion of the judge’s charge on the elements of the offenses, lesser included offenses, and any defense upon which the jury has been instructed.

(1) If the judge permits the jury to have written copies of the portion of the judge’s charge on the elements of the offenses, lesser included offenses, and any defense upon which the jury has been instructed, the judge shall provide that portion of the charge in its entirety.

(2) The judge shall instruct the jury about the use of the written charge. At a minimum, the judge shall instruct the jurors that

(a) the entire charge, written and oral, shall be given equal weight; and

(b) the jury may submit questions regarding any portion of the charge.

(C) During deliberations, the jury shall not be permitted to have:

(1) a transcript of any trial testimony;

(2) a copy of any written or otherwise recorded confession by the defendant;

(3) a copy of the information or indictment; and

(4) except as provided in paragraph (B), written jury instructions.

(D) The jurors shall be permitted to have their notes for use during deliberations.

This rule prohibits the jury from receiving a copy of the indictment or information during its deliberations. The rule also prohibits the jury from taking into the jury room any written or otherwise recorded confession of the defendant. In Commonwealth v. Pitts, 450 Pa. 359, 301 A.2d 646, 650 n. 1 (1973), the Court noted that ‘‘it would be a better procedure not to allow exhibits into the jury room which would require expert interpretation.’’

The 2009 amendment to paragraph (B) changes the procedures in Pennsylvania concerning the jury’s access during deliberations to written copies of the judge’s charge by permitting the judge to provide each member of the jury with written copies of the portion of the judge’s charge on the elements of offenses, the lesser included offenses, and the elements of any potential defenses upon which the jury was charged for the jurors to use during their deliberations. This amendment supersedes the line of cases from Commonwealth v. Baker, 466 Pa. 382, 353 A.2d 406 (1976) (plurality opinion) and Commonwealth v. Oleynik, 524 Pa. 41, 568 A.2d 1238 (1990), through Commonwealth v. Karaffa, 551 Pa. 173, 709 A.2d 887 (1998), in which the Court held it was reversible error to submit written jury instructions to the jury to the extent these cases would preclude that portion of the charge containing the elements of the offense charged, lesser included offenses, and defenses raised at trial from going to the jury.

It is within the discretion of the trial judge to permit the use of the written copies of the portions of the charge on the elements by the jury during deliberations. However, once the judge permits the use of the written elements, the elements of all of the offenses, lesser included offenses, and defenses upon which the jury was charged must be provided to the jury in writing.

The method of preparing the written instructions to be provided to the jury is within the discretion of the trial judge. For example, the instructions do not have to be contemporaneously transcribed but can be a copy of previously prepared instructions that the judge has read as part of the charge that are then provided to the jury for use during deliberations.

The judge must instruct the jurors concerning the use of written instructions during deliberations. Paragraph (B)(2) sets forth the minimum information the judge must explain to the jurors.

It is strongly recommended the judge instruct the jurors along the lines of the following:

Members of the jury, I will now instruct you on the law that applies to this case including the elements of each offense as well as the elements of the lesser included offenses and defenses upon which evidence has been provided during this trial. To assist you in your deliberations I will give you a written list of the elements of these offenses, lesser included offenses, and defenses to use in the jury room.

If any matter is repeated or stated in different ways in my instructions, no emphasis is intended. Do not draw any inference because of a repetition. Do not single out any individual rule or instruction and ignore the others. Do not place greater emphasis on the elements of the offenses, lesser included offenses and defenses simply because I have provided them to you in writing and other instructions are not provided in writing. Consider all the instructions as a whole and each in the light of the others.

If, during your deliberations, you have a question or feel that you need further assistance or instructions from me, write your question on a sheet of paper and give it to the court officer who will be standing at the jury room door, and who, in turn, will give it to me. You may ask questions about any of the instructions that I have given to you whether they were given to you orally or in writing.

See Rule 647(B) (Request for Instructions, Charge to the Jury, and Preliminary Instructions) concerning the content of the charge and written requests for instructions to the jury.

The 1996 amendment adding ‘‘or otherwise recorded’’ in paragraph (C)(2) is not intended to enlarge or modify what constitutes a confession under this rule. Rather, the amendment is only intended to recognize that a confession can be recorded in a variety of ways. See Commonwealth v. Foster, 425 Pa.Super. 61, 624 A.2d 144 (1993).

Nothing in this rule is intended to preclude jurors from taking notes during testimony related to a defendant’s confession and such notes may be in the jurors’ possession during deliberations.

Paragraph (D) was added in 2005 to make it clear that the notes the jurors take pursuant to Rule 644 may be used during deliberations.

Official Note

Rule 1114 adopted January 24, 1968, effective August 1, 1968; amended June 28, 1974, effective September 1, 1974; Comment revised August 12, 1993, effective September 1, 1993; amended January 16, 1996, effective July 1, 1996; amended November 18, 1999, effective January 1, 2000; renumbered Rule 646 March 1, 2000, effective April 1, 2001; amended June 30, 2005, effective August 1, 2005; amended August 7, 2008, effective immediately; amended October 16, 2009, effective February 1, 2010; amended June 21, 2012, effective in 180 days; Comment revised July 7, 2015, effective October 1, 2015.

Committee Explanatory Reports:

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

Final Report explaining the January 16, 1996 amendments published with the Court’s Order at 26 Pa.B. 439 (February 3, 1996).

Final Report explaining the changes to paragraph (B) and the Comment prohibiting written jury instructions going to the jury published with the Court’s Order at 29 Pa.B. 6102 (December 4, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the June 30, 2005 amendment concerning jurors’ notes published with the Court’s Order at 35 Pa.B. 3917 (July 16, 2005).

Final Report explaining the August 7, 2008 revision to the Comment concerning jurors’ notes related to a defendant’s confession published with the Court’s Order at 38 Pa.B. 4606 (August 23, 2008).

Final Report explaining the October 16, 2009 amendments concerning providing jurors with the elements of the changed offenses in writing published with the Court’s Order at 39 Pa.B. 6333 (October 31, 2009).

Final Report explaining the June 21, 2012 amendment to paragraph (C)(3) and the revision of the Comment concerning the former abolition of the indicting grand jury published with the Court’s Order at 42 Pa.B. 4153 (July 7, 2012).

Final Report explaining the July 7, 2015 Comment revision correcting a cross-reference to Rule 647 published with the Court’s Order at 45 Pa.B. 3985 (July 25, 2015).

The provisions of this Rule 646 amended June 30, 2005, effective August 1, 2005, 35 Pa.B. 3917; amended August 7, 2008, effective immediately, 38 Pa.B. 4606; amended October 16, 2009, effective February 1, 2010, 39 Pa.B. 6331; amended June 21, 2012, effective in 180 days, 42 Pa.B. 4140; amended July 7, 2015, effective October 1, 2015, 45 Pa.B. 3980. Immediately preceding text appears at serial pages (369650) to (369652) and (361899).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 647 Request for Instructions, Charge to the Jury, and Preliminary Instructions. {#sec-rule-647 omnilex-key=us-pa-regs-official--title-234--Rule 647}

(A) Before the taking of evidence, the trial judge shall give instructions to the jurors as provided in Rule 626.

(B) Any party may submit to the trial judge written requests for instructions to the jury. Such requests shall be submitted within a reasonable time before the closing arguments, and at the same time copies thereof shall be furnished to the other parties. Before closing arguments, the trial judge shall inform the parties on the record of the judge’s rulings on all written requests and which instructions shall be submitted to the jury in writing. The trial judge shall charge the jury after the arguments are completed.

(C) No portions of the charge nor omissions from the charge may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury.

(D) After the jury has retired to consider its verdict, additional or correctional instructions may be given by the trial judge in the presence of all parties, except that the defendant’s absence without cause shall not preclude proceeding, as provided in Rule 602.

(E) The trial judge may give any other instructions to the jury before the taking of evidence or at anytime during the trial as the judge deems necessary and appropriate for the jury’s guidance in hearing the case.

Paragraph (B), amended in 1985, parallels the procedures in many other jurisdictions which require that the trial judge rule on the parties’ written requests for instructions before closing arguments, that the rulings are on the record, and that the judge charge the jury after the closing arguments. See, e.g., Fed.R.Crim.P. 30; ABA Standards on Trial by Jury, Standard 15-3.6; Uniform Rule of Criminal Procedure 523(b).

Pursuant to Rule 646 (Material Permitted in Possession of the Jury), the judge must determine whether to provide the members of the jury with written copies of the portion of the judge’s charge on the elements of the offenses, lesser included offenses, and any defense upon which the jury has been instructed for use during deliberations.

Paragraph (A) was added in 2015 to require trial judges to instruct jurors that they are prohibited from using computers or cell phones at trial or during deliberation, and are prohibited from using a computer or other electronic device or any other method to obtain or disclose information about the case when they are not in the courtroom. The amendment prohibits jurors from reading about or listening to news reports about the case and prohibits discussion among jurors until deliberation.

Paragraph (E), added in 1985, recognizes the value of jury instructions to juror comprehension of the trial process. It is intended that the trial judge determine on a case by case basis whether instructions before the taking of evidence or at anytime during trial are appropriate or necessary to assist the jury in hearing the case. The judge should determine what instructions to give based on the particular case, but at a minimum the preliminary instructions should orient the jurors to the trial procedures and to their duties and function as jurors. In addition, it is suggested that the instructions may include such points as note taking, the elements of the crime charged, presumption of innocence, burden of proof, and credibility. Furthermore, if a specific defense is raised by evidence presented during trial, the judge may want to instruct on the elements of the defense immediately after it is presented to enable the jury to properly evaluate the specific defense. See also Pennsylvania Suggested Standard Criminal Jury Instructions, Chapter II.

Official Note

Rule 1119 adopted January 24, 1968, effective August 1, 1968; amended April 23, 1985, effective July 1, 1985; renumbered Rule 647 and amended March 1, 2000, effective April 1, 2001; Comment revised June 30, 2005, effective August 1, 2005; amended October 16, 2009, effective February 1, 2010; amended July 7, 2015, effective October 1, 2015.

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. 1478 (March 18, 2000).

Final Report explaining the June 30, 2005 Comment revision concerning the note taking instruction published with the Court’s Order at 35 Pa.B. 3919 (July 16, 2005).

Final Report explaining the October 16, 2009 changes adding to the Comment a cross-reference to Rule 646 published with the Court’s Order at 39 Pa.B. 6331, 6333 (October 31, 2009).

Final Report explaining the July 7, 2015 amendment regarding the use of personal communications devices and computers by the jurors published with the Court’s Order at 45 Pa.B. 3985 (July 25, 2015).

The provisions of this Rule 647 amended June 30, 2005, effective August 1, 2005, 35 Pa.B. 3917; amended October 16, 2009, effective February 1, 2010, 39 Pa.B. 6331; amended July 7, 2015, effective October 1, 2015, 45 Pa.B. 3980. Immediately preceding text appears at serial pages (361899) to (361900).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 648 Verdicts. {#sec-rule-648 omnilex-key=us-pa-regs-official--title-234--Rule 648}

(A) Upon retiring to deliberate, the jury shall select one of its members as foreman.

(B) The verdict shall be unanimous, and shall be announced by the foreman in open court in the presence of a judge, the attorney for the Commonwealth, the defendant and defendant’s attorney, except as provided in Rule 602.

(C) If there are two or more defendants, the jury may report a verdict or verdicts with respect to those defendants, upon which it has agreed, and the judge shall receive all such verdicts. If the jury cannot agree upon a verdict with respect to all of the defendants, the verdicts which have been received shall be recorded.

(D) If there are two or more counts in the information or indictment, the jury may report a verdict or verdicts with respect to those counts upon which it has agreed, and the judge shall receive and record all such verdicts. If the jury cannot agree with respect to all the counts in the information or indictment if those counts to which it has agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter counts shall be dismissed. When the counts in the information or indictment upon which the jury cannot agree are not included offenses of the counts in the information or indictment upon which it has agreed, the defendant or defendants may be retried on those counts in the information or indictment.

(E) If there are two or more informations or indictments, the jury may report a verdict or verdicts with respect to those informations or indictments upon which it has agreed, and the judge shall receive and record all such verdicts. If the jury cannot agree with respect to all the informations or indictments, if those informations or indictments to which it has agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter informations or indictments shall be dismissed. When the informations or indictments upon which the jury cannot agree are not included in the offenses of the information or indictment upon which it has agreed, the defendant or defendants may be retried on those informations or indictments.

(F) If there is a summary offense joined with the misdemeanor, felony, or murder charge that was tried before the jury, the trial judge shall not remand the summary offense to the issuing authority. The summary offense shall be disposed of in the court of common pleas, and the verdict with respect to the summary offense shall be recorded in the same manner as the verdict with respect to the other charges.

(G) Before a verdict, whether oral or sealed, is recorded, the jury shall be polled at the request of any party. Except where the verdict is sealed, if upon such poll there is no concurrence, the jury shall be directed to retire for further deliberations.

Paragraph (A) of the rule replaces the practice of automatically appointing the first juror chosen as foreman of the jury. Paragraphs (C), (D), and (E) serve only to codify the procedure where conviction or acquittal of one offense operates as a bar to a later trial on a necessarily included offense. Similarly, the rule applies to situations of merger and autrefois convict or acquit. No attempt is made to change the substantive law that would operate to determine when merger or any of the other situations arise. See, e.g., Commonwealth v. Comber, 374 Pa. 570, 97 A.2d 343 (1953).

Paragraph (F) provides for the disposition in the court of common pleas of any summary offense that is joined with the misdemeanor, felony, or murder charges that were tried before the jury. Under no circumstances may the trial judge remand the summary offense to the issuing authority, even in cases in which the defendant is found not guilty by the jury. See also Rule 543 (Disposition of Case at Preliminary Hearing).

Paragraph (G) provides for the polling of the jury and requires the judge to send the jury back for deliberations in accordance with Commonwealth v. Martin, 379 Pa. 587, 109 A.2d 325 (1954). With respect to the procedure upon non-concurrence with a sealed verdict, see Rule 649(C).

Although most references to indictments and indicting grand juries were deleted from these rules in 1993 because the indicting grand jury was abolished in all counties, see PA. CONST. art. I, § 10 and 42 Pa.C.S. § 8931(b), the reference was retained in paragraphs (D) and (E) of this rule because there may be some cases still pending that were instituted under the former indicting grand jury rules prior to the abolition of the indicting grand jury in 1993. These references to ‘‘indictment’’ do not apply in the context of an indicting grand jury convened pursuant to the new indicting grand jury procedures adopted in 2012 in which an information would be filed after a grand jury indicts a defendant. See Rules 103 and 556.11.

Official Note

Rule 1120 adopted January 24, 1968, effective August 1, 1968; amended February 13, 1974, effective immediately; paragraph (E) amended to correct printing error June 28, 1976, effective immediately; paragraph (F) amended April 26, 1979, effective July 1, 1979; amended August 12, 1993, effective September 1, 1993; renumbered Rule 648 and amended March 1, 2000, effective April 1, 2001; amended March 9, 2006, effective September 1, 2006; Comment revised June 21, 2012, effective in 180 days.

Committee Explanatory Reports:

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

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 9, 2006 amendments concerning joinder of summary offenses with misdemeanor, felony, or murder charges published with the Court’s Order at 36 Pa.B. 1392 (March 25, 2006).

Final Report explaining the June 21, 2012 revisions of the Comment concerning the former abolition of the indicting grand jury published with the Court’s Order at 42 Pa.B. 4153 (July 7, 2012).

The provisions of this Rule 648 amended June 21, 2012, effective in 180 days, 42 Pa.B. 4140. Immediately preceding text appears at serial pages (359421) to (359422).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

234 Pa. Code Rule 649 Sealed Verdict. {#sec-rule-649 omnilex-key=us-pa-regs-official--title-234--Rule 649}

(A) Upon the consent of all parties the judge may permit the jury to seal its verdict.

(B) The sealed verdict shall remain in the custody of the foreman of the jury who shall bring it to the next session of court stated by the trial judge. Once a verdict is sealed, the jurors may separate, but all jurors must return to open court to render the jury’s verdict, with all parties present.

(C) If upon the poll of a jury there is no concurrence with a sealed verdict, the judge shall not accept the verdict, but shall declare a mistrial and discharge the jury.

The 1972 amendment deleted the exception of those cases in which a capital crime is charged in view of Furman v. Georgia, 408 U.S. 238 (1972) and its companion cases, and in view of Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972).

This rule codifies the existing law with respect to sealed verdicts. See Rule 103, Rule 601 and Rule 648(F).

Paragraph (C) follows the Pennsylvania cases, Commonwealth v. Watson, 211 Pa. Superior Ct. 394, 236 A.2d 567 (1967); Commonwealth v. Lemley, 158 Pa. Superior Ct. 125, 44 A.2d 317 (1945).

Official Note

Rule 1121 adopted January 24, 1968, effective August 1, 1968; amended November 29, 1972, effective 10 days hence; renumbered Rule 649 and amended March 1, 2000, effective April 1, 2001; Comment revised September 21, 2012, effective November 1, 2012.

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. 1478 (March 18, 2000).

Final Report explaining the September 21, 2012 revision of the Comment correcting a rule reference in the second paragraph and the case citations published with the Court’s Order at 42 Pa.B. 6251 (October 6, 2012).

The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

History

• Source: The provisions of this Rule 649 amended September 21, 2012, effective November 21, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361902) and (359423).

Chapter 7 POST-TRIAL PROCEDURES IN COURT CASES

234 Pa. Code Rule 700 Sentencing Judge. {#sec-rule-700 omnilex-key=us-pa-regs-official--title-234--Rule 700}

(A) Except as provided in paragraph (B), the judge who presided at the trial or who received the plea of guilty or nolo contendere shall impose sentence unless there are extraordinary circumstances which preclude the judge’s presence. In such event, another judge shall be assigned to impose sentence.

(B) A court may provide by local rule that sentence on a plea of guilty or nolo contendere may be imposed by a judge other than the judge who received a plea of guilty or nolo contendere. In such event, the defendant must be so notified at the time of entering the plea.

Generally, the president judge makes assignment of judges. However, in one-judge judicial districts, or in instances in which the president judge is the one whose presence at sentencing is precluded, an appropriate assigning authority, such as the Supreme Court or the Court Administrator of Pennsylvania, should assign a new judge.

It is always desirable that the judge who accepts a plea of guilty or nolo contendere should impose sentence. It is recognized, however, that the rotation practices of many courts make it difficult in many instances for the same judge to sit in both capacities. For that reason, paragraph (B) provides that a court may set up an alternate procedure by local rule. In any event, the judge who imposes the sentence should ascertain the facts concerning the plea and the offense. See ABA Standards on Sentencing Alternatives and Procedures Section 5.1.

Official Note

Rule 1401 adopted July 23, 1973, effective October 23, 1973; amended June 30, 1975, effective September 28, 1975; renumbered Rule 700 and amended March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

234 Pa. Code Rule 701 Pleas of Guilty to Multiple Offenses. {#sec-rule-701 omnilex-key=us-pa-regs-official--title-234--Rule 701}

(A) Before the imposition of sentence, the defendant may plead guilty to other offenses that the defendant committed within the jurisdiction of the sentencing court.

(B) When such pleas are accepted, the court shall sentence the defendant for all the offenses.

The objective of this rule is to enable the court to sentence the defendant on all outstanding charges within the jurisdiction of the sentencing court at one time.

This rule applies when a defendant is to be sentenced following a finding that the defendant violated probation or intermediate punishment, or when a defendant is to be recommitted following a finding that the defendant violated parole. See Rule 708(D) for the sentencing procedures in probation, intermediate punishment, or parole violation cases.

When a defendant is permitted to plead guilty to multiple offenses as provided in paragraph (A), if any of the other offenses involves a victim, the sentencing proceeding must be delayed to afford the Commonwealth adequate time to contact the victim(s), and to give the victim(s) an opportunity to offer prior comment on the sentencing or to submit a written and oral victim impact statement. See the Crime Victims Act, 18 P.S. § 11.201(5).

Official Note

Rule 1402 adopted July 23, 1973, effective 90 days hence; renumbered Rule 701 and amended March 1, 2000, effective April 1, 2001; Comment revised March 15, 2013, effective May 1, 2013.

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. 1478 (March 18, 2000).

Final Report explaining the March 15, 2013 revision of the Comment concerning probation violation cases and the Crime Victims Act published with the Court’s Order at 43 Pa.B. 1705 (March 30, 2013).

The provisions of this Rule 701 amended March 15, 2013, effective May 1, 2013, 43 Pa.B. 1702. Immediately preceding text appears at serial page (353012).

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

234 Pa. Code Rule 702 Aids in Imposing Sentence. {#sec-rule-702 omnilex-key=us-pa-regs-official--title-234--Rule 702}

(A) PRE-SENTENCE INVESTIGATION REPORT.

(1) The sentencing judge may, in the judge’s discretion, order a pre-sentence investigation report in any case.

(2) The sentencing judge shall place on the record the reasons for dispensing with the pre-sentence investigation report if the judge fails to order a pre-sentence report in any of the following instances:

(a) when incarceration for one year or more is a possible disposition under the applicable sentencing statutes;

(b) when the defendant is less than 21 years old at the time of conviction or entry of a plea of guilty; or

(c) when a defendant is a first offender in that he or she has not heretofore been sentenced as an adult.

(3) The pre-sentence investigation report shall include information regarding the circumstances of the offense and the character of the defendant sufficient to assist the judge in determining sentence.

(4) The pre-sentence investigation report shall also include a victim impact statement as provided by law.

(B) PSYCHIATRIC OR PSYCHOLOGICAL EXAMINATION.

After a finding of guilt and before the imposition of sentence, after notice to counsel for both parties, the sentencing judge may, as provided by law, order the defendant to undergo a psychiatric or psychological examination. For this purpose the defendant may be remanded to any available clinic, hospital, institution, or state correctional diagnostic and classification center for a period not exceeding 60 days.

For purposes of paragraph (A)(2)(c), whether the defendant has a prior juvenile adjudication is immaterial. Paragraph (A)(3) indicates in general terms what the contents of the pre-sentence investigation report must include. With respect to the particularized contents of such reports, see Commonwealth v. Martin, 351 A.2d 650 (Pa. 1976). Concerning other information that would be helpful for the sentencing judge to have in the pre-sentence investigation report, see 18 Pa.C.S. § 1106(c)(2)(iv) (the judge, when determining the amount of restitution, must consider ‘‘any other preexisting orders imposed on the defendant, including, but not limited to, orders imposed under this title or any other title’’).

For the victim’s right to have information included in the pre-sentence report concerning the impact of the crime on the victim, as provided in paragraph (A)(4), see 71 P. S. § 180-9.3.

A psychiatric or psychological examination may be ordered on an outpatient or inpatient basis as provided by law. See 50 P. S. § 7405. Because the 1976 Mental Health Procedures Act excludes issues related to mental retardation, 50 P. S. § 7502, see also the Mental Health and Mental Retardation Act of 1966, 50 P. S. § 4101 et seq.

When an incarcerated defendant has undergone any period of voluntary or involuntary confinement for the purpose of examination pursuant to this rule, credit for the period of confinement should be given toward the sentence ultimately imposed. See, e.g., 50 P. S. § § 7401(b) and 7407(f).

Additional pre-sentence procedures may be required by statute. For example, see 42 Pa.C.S. § § 9791—9799.5 (concerning persons convicted of sexually violent offenses) for pre-sentence assessment and hearing procedures. See also 42 Pa.C.S. § 9714(c) for hearing to determine high risk dangerous offender status.

Under the provisions of Rule 703 (Disclosure of Pre-Sentence Reports), full disclosure of reports to defense counsel and the Commonwealth is required. See Rule 703(A)(2). Reports may also be disclosed under Rule 703 to other designated persons or agencies, unless the sentencing judge otherwise orders. See Rule 703(C), (D), and (E).

Official Note

Rule 1403 adopted July 23, 1973, effective 90 days hence; amended June 28, 1976, effective January 1, 1977; amended November 1, 1991, effective January 1, 1992; amended March 22, 1993, effective January 1, 1994; Comment revised April 18, 1997, effective immediately; renumbered Rule 702 and amended March 1, 2000, effective April 1, 2001; Comment revised March 27, 2003, effective July 1, 2003.

Committee Explanatory Reports:

Report explaining the January 1, 1992 amendments published at 20 Pa.B. 1697 (March 24, 1990); Supplemental Report published with the Court’s Order at 21 Pa.B. 5329 (November 16, 1991).

Final Report explaining the March 22, 1993 amendments published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).

Report explaining the April 18, 1997 Comment revision published with the Court’s Order at 27 Pa.B. 2122 (May 3, 1997).

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 March 27, 2003 Comment revision adding a cross-reference to 18 Pa.C.S. § 1106 published with the Court’s Order at 33 Pa.B. 1928 (April 19, 2003).

The provisions of this Rule 702 amended March 27, 2003, effective July 1, 2003, 33 Pa.B. 1927. Immediately preceding text appears at serial pages (264336) to (264337).

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

234 Pa. Code Rule 703 Disclosure of Pre-Sentence Reports. {#sec-rule-703 omnilex-key=us-pa-regs-official--title-234--Rule 703}

(A) All pre-sentence reports and related psychiatric and psychological reports shall be confidential, and not of public record. They shall be available to the sentencing judge, and to:

(1) An examining professional or facility appointed to assist the court in sentencing, unless the sentencing judge otherwise orders;

(2) the attorney for the Commonwealth and counsel for the defendant, for inspection and copying, unless the sentencing judge orders that they be available for inspection only.

(B) If the defendant or the Commonwealth alleges any factual inaccuracy in a report under this rule, the sentencing judge shall, as to each inaccuracy found, order that the report be corrected accordingly.

(C) After sentencing, unless the sentencing judge otherwise orders, and subject to the provisions of paragraph (B), psychiatric, psychological, and pre-sentence reports shall also be available to:

(1) correctional institutions housing the defendant; and

(2) departments of probation or parole supervising the defendant; and

(3) departments of probation or parole preparing a pre-sentence investigation report regarding the defendant.

The reports shall continue to be confidential and not of public record.

(D) On the order of the sentencing judge, a psychiatric, psychological, or pre-sentence investigation report may be made available to any other person or agency having a legitimate professional interest in the disposition of the case.

(E) The sentencing judge may at any time impose further conditions of confidentiality on a person or agency receiving a report under paragraphs (C) or (D) of this rule.

This rule facilitates the sentencing process by permitting disclosure of reports not only to counsel and those persons appointed to assist the court in sentencing, but also to those charged with effecting the sentence imposed—correctional institutions and departments of probation and parole. See also Rule 702.

The persons, agencies, and institutions enumerated in paragraphs (A) and (C) would ordinarily be given access to the confidential reports encompassed by this rule. A court order is not necessary. Under paragraphs (C)(1) and (2), it is intended that out-of-state correctional facilities and parole boards would also have access to such reports, subject to the provisions of paragraphs (B) and (C).

The disclosure provisions contained in paragraph (A)(2) and paragraph (B) are not intended to encourage formal litigation over confidential reports, but should avoid such litigation by affording counsel for both parties full disclosure of reports and the opportunity to point out any inaccuracies before the judge imposes sentence. Disclosure under paragraph (A)(2) should be made in sufficient time for counsel to prepare for the sentencing hearing. See Rule 704.

Although it is not necessary for a probation officer to make a sentencing recommendation, if one is made, it should be disclosed to defense counsel. See Commonwealth v. Bastone, 467 A.2d 1339 (Pa. Super. 1983).

Paragraph (B) is intended to insure that reports considered by the sentencing judge and disclosed after sentencing are factually accurate, particularly in light of the reliance placed on the information contained in reports by correctional facilities and probation and parole departments. Although paragraph (B) addresses inaccuracies alleged by the defendant or the Commonwealth, the section is not intended to preclude the sentencing judge from finding and correcting an inaccuracy sua sponte.

This rule requires full disclosure to those persons and facilities listed in paragraph (A). Under paragraphs (C), (D), and (E), however, the sentencing judge retains the discretion to withhold confidential reports or to impose special conditions of confidentiality at any time.

When a psychiatric, psychological, or pre-sentence investigation report is relevant to a sentencing issue, the report should be sealed to preserve its confidentiality, and made part of the record for review.

Official Note

Former Rule 1404 adopted July 23, 1973, effective 90 days hence; amended December 14, 1979, effective April 1, 1980; rescinded November 1, 1991, effective January 1, 1992. Present Rule 1404 adopted November 1, 1991, effective January 1, 1992; renumbered Rule 703 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Report explaining the January 1, 1992 amendments published at 20 Pa.B. 1697 (March 24, 1990); Supplemental Report published with the Court’s Order at 21 Pa.B. 5329 (November 16, 1991).

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).

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

234 Pa. Code Rule 704 Procedure at Time of Sentencing. {#sec-rule-704 omnilex-key=us-pa-regs-official--title-234--Rule 704}

(A) TIME FOR SENTENCING.

(1) Except as provided by Rule 702(B), sentence in a court case shall ordinarily be imposed within 90 days of conviction or the entry of a plea of guilty or nolo contendere.

(2) When the date for sentencing in a court case must be delayed, for good cause shown, beyond the time limits set forth in this rule, the judge shall include in the record the specific time period for the extension.

(3) In a summary case appeal, sentence shall be imposed immediately following a determination of guilt at a trial de novo in the court of common pleas.

(B) ORAL MOTION FOR EXTRAORDINARY RELIEF.

(1) Under extraordinary circumstances, when the interests of justice require, the trial judge may, before sentencing, hear an oral motion in arrest of judgment, for a judgment of acquittal, or for a new trial.

(2) The judge shall decide a motion for extraordinary relief before imposing sentence, and shall not delay the sentencing proceeding in order to decide it.

(3) A motion for extraordinary relief shall have no effect on the preservation or waiver of issues for post-sentence consideration or appeal.

(C) SENTENCING PROCEEDING.

(1) At the time of sentencing, the judge shall afford the defendant the opportunity to make a statement in his or her behalf and shall afford counsel for both parties the opportunity to present information and argument relative to sentencing.

(2) The judge shall state on the record the reasons for the sentence imposed.

(3) The judge shall determine on the record that the defendant has been advised of the following:

(a) of the right to file a post-sentence motion and to appeal, of the time within which the defendant must exercise those rights, and of the right to assistance of counsel in the preparation of the motion and appeal;

(b) of the rights,

(i) if the defendant is indigent, to seek waiver of costs as provided for in Rule 124 (Waiver of Fees and Costs) and to proceed with appointed counsel as provided in Rule 122, or,

(ii) if represented by retained counsel, to proceed with retained counsel unless the court has granted leave for counsel to withdraw pursuant to Rule 120(B);

(c) of the time limits within which post-sentence motions must be decided;

(d) that issues raised before or during trial shall be deemed preserved for appeal whether or not the defendant elects to file a post-sentence motion; and

(e) of the defendant’s qualified right to bail under Rule 521(B).

(4) The judge shall require that a record of the sentencing proceedings be made and preserved so that it can be transcribed as needed. The record shall include:

(a) the record of any stipulation made at a pre-sentence conference; and

(b) a verbatim account of the entire sentencing proceeding.

The rule is intended to promote prompt and fair sentencing procedures by providing reasonable time limits for those procedures, and by requiring that the defendant be fully informed of his or her post-sentence rights and the procedural requirements which must be met to preserve those rights.

Rule 708 (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition) governs sentencing procedures after a revocation of probation, intermediate punishment, or parole.

TIME FOR SENTENCING

As a general rule, the date for sentencing should be scheduled at the time of conviction or the entry of a plea of guilty or nolo contendere.

Under paragraph (A)(1), sentence should be imposed within 90 days of conviction or the entry of a plea of guilty or nolo contendere, unless the court orders a psychiatric or psychological examination pursuant to Rule 702(B). Such an order should extend the time for sentencing for only as much time as is reasonably required, but in no event should sentencing be extended for more than 30 days beyond the original 90-day limit. In summary appeal cases, however, sentence must be imposed immediately at the conclusion of the de novo trial.

Paragraph (A)(2) is not intended to sanction pro forma requests for continuances. Rather, it permits the judge to extend the time limit for sentencing under extraordinary circumstances only. For example, additional pre-sentence procedures may be required by statute. See 42 Pa.C.S. § § 9799.11—9799.41 for pre-sentence assessment and hearing procedures for persons convicted of sexually violent offenses.

Because such extensions are intended to be the exception rather than the rule, the extension must be for a specific time period, and the judge must include in the record the length of the extension. A hearing need not be held before an extension can be granted. Once a specific extension has been granted, however, some provision should be made to monitor the extended time period to insure prompt sentencing when the extension period expires.

Failure to sentence within the time specified in paragraph (A) may result in the discharge of the defendant. See Commonwealth v. Anders, 725 A.2d 170 (Pa. 1999) (discharge is appropriate remedy for violation of Rule 704 time limits, but only if the defendant can demonstrate that the delay in sentencing was prejudicial to the defendant).

ORAL MOTION FOR EXTRAORDINARY RELIEF

Under paragraph (B), when there has been an error in the proceedings that would clearly result in the judge’s granting relief post-sentence, the judge should grant a motion for extraordinary relief before sentencing occurs. Although trial errors may be serious and the issues addressing those errors meritorious, this rule is intended to allow the trial judge the opportunity to address only those errors so manifest that immediate relief is essential. It would be appropriate for counsel to move for extraordinary relief, for example, when there has been a change in case law, or, in a multiple count case, when the judge would probably grant a motion in arrest of judgment on some of the counts post-sentence. Although these examples are not all-inclusive, they illustrate the basic purpose of the rule: when there has been an egregious error in the proceedings, the interests of justice are best served by deciding that issue before sentence is imposed. Because the relief provided by this section is extraordinary, boilerplate motions for extraordinary relief should be summarily denied.

Under paragraph (B)(2), the motion must be decided before sentence is imposed, and sentencing may not be postponed in order to dispose of the motion. The judge may summarily deny the motion or decide it on the merits.

Paragraph (B)(3) is intended to make it clear that a motion for extraordinary relief is neither necessary nor sufficient to preserve an issue for appeal. The failure to make a motion for extraordinary relief, or the failure to raise a particular issue in such a motion, does not constitute a waiver of any issue. Conversely, the making of a motion for extraordinary relief does not, of itself, preserve any issue raised in the motion, nor does the judge’s denial of the motion preserve any issue.

SENTENCING PROCEDURES

Paragraph (C)(1) retains the former requirement that the judge afford the defendant an opportunity to make a statement and counsel the opportunity to present information and argument relative to sentencing. The defendant’s right to allocution at sentencing is well established, and the trial judge must inform the defendant of that right. See Commonwealth v. Thomas, 553 A.2d 918 (Pa. 1989).

The duty of the judge to explain to the defendant the rights set forth in paragraph (C)(3) is discussed in Commonwealth v. Wilson, 241 A.2d 760, 763 (Pa. 1968), and Commonwealth v. Stewart, 241 A.2d 764, 765 (Pa. 1968).

The judge should explain to the defendant, as clearly as possible, the timing requirements for making and deciding a post-sentence motion under Rule 720. The judge should also explain that the defendant may choose whether to file a post-sentence motion and appeal after the decision on the motion, or to pursue an appeal without first filing a post-sentence motion.

Paragraph (C)(3) requires the judge to ensure the defendant is advised of his or her rights concerning post-sentence motions and appeal, and the right to proceed with counsel. See, e.g., Commonwealth v. Librizzi, 810 A.2d 692 (Pa. Super. 2002).

The rule permits the use of a written colloquy that is read, completed, signed by the defendant, and made part of the record of the sentencing proceeding. This written colloquy must be supplemented by an on-the-record oral examination to determine that the defendant has been advised of the applicable rights enumerated in paragraph (C)(3) and that the defendant has signed the form.

Other, additional procedures are required by statute. See, e.g., 42 Pa.C.S. § 9756(b)(3) that imposes requirements on the judge when a defendant may be eligible to participate in a re-entry plan and 42 Pa.C.S. § 9756(b.1) that imposes requirements on the judge when a defendant may be eligible for a recidivism risk reduction incentive (RRRI) minimum sentence; 42 Pa.C.S. § 9799.23 that requires the judge to inform certain offenders of the duty to register; and 42 Pa.C.S. § 9813 that imposes requirements on the judge when a defendant may be eligible for work release.

After sentencing, following a conviction in a trial de novo in a summary case, the judge should advise the defendant of the right to appeal and the time limits within which to exercise that right, the right to seek waiver of costs as provided for in Rule 124 (Waiver of Fees and Costs) and with appointed counsel to the extent provided in Rule 122(A), and of the qualified right to bail under Rule 521(B). See paragraphs (C)(3)(a), (b), and (e). See also Rule 720(D) (no post-sentence motion after a trial de novo).

After sentencing, the judge should inquire whether the defendant intends to file a post-sentence motion or to appeal, and if so, should determine the defendant’s bail status pursuant to paragraph (C)(3)(e) and Rule 521. It is recommended, when a state sentence has been imposed, that the judge permit a defendant who cannot make bail to remain incarcerated locally, at least for the 10-day period during which counsel may file the post-sentence motion. When new counsel has been appointed or entered an appearance for the purpose of pursuing a post-sentence motion or appeal, the judge should consider permitting the defendant to remain incarcerated locally for a longer period to allow new counsel time to confer with the defendant and become familiar with the case. See also Rule 120 (Attorneys—Appearances and Withdrawals).

It is difficult to set forth all the standards that a judge must utilize and consider in imposing sentence. It is recommended that, at a minimum, the judge look to the standards and guidelines as specified by statutory law. See the Judicial Code, 42 Pa.C.S. § 9701 et seq. See also Commonwealth v. Riggins, 377 A.2d 140 (Pa. 1977) and Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988). The judge also should consider other preexisting orders imposed on the defendant. See 18 Pa.C.S. § 1106(c)(2)(iv). And see 42 Pa.C.S. § 9728.

For procedures in cases in which restitution is imposed, see Rule 705.1.

For the right of a victim to have information included in the pre-sentence investigation report concerning the impact of the crime upon him or her, see 18 P.S. § 11.201(4)—(5) and Rule 702(A)(4).

For the duty of the sentencing judge to state on the record the reasons for the sentence imposed, see Commonwealth v. Riggins, 377 A.2d 140 (Pa. 1977) and Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988). If the sentence initially imposed is modified pursuant to Rule 720(B)(1)(a)(v), the sentencing judge should ensure that the reasons for the ultimate sentence appear on the record. See also Sentencing Guidelines, 204 PA. CODE § § 303.1(d)—(e) and 303.13(c).

In cases in which a mandatory sentence is provided by law, when the judge decides not to impose a sentence greater than the mandatory sentence, regardless of the number of charges on which the defendant could be sentenced consecutively, and when no psychiatric or psychological examination is required under Rule 702(B), the judge may immediately impose that sentence. But see Rule 702(A)(2), which requires that the court state on the record the reasons for dispensing with a pre-sentence report under the circumstances enumerated therein. See also 42 Pa.C.S. § 9721 et seq.

No later than 30 days after the date of sentencing, a Pennsylvania Commission on Sentencing Guideline Sentence Form must be completed at the judge’s direction and made a part of the record. In addition, a copy of the form must be forwarded to the Commission on Sentencing. 204 PA. CODE § 303.1(e).

With respect to the recording and transcribing of court proceedings, including sentencing, see Rule 115.

Official Note

Previous Rule 1405 approved July 23, 1973, effective 90 days hence; Comment amended June 30, 1975, effective immediately; Comment amended and paragraphs (c) and (d) added June 29, 1977, effective September 1, 1977; amended May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978; Comment amended April 24, 1981, effective July 1, 1981; Comment amended November 1, 1991, effective January 1, 1992; rescinded March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994, and replaced by present Rule 1405. Present Rule 1405 adopted March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; amended January 3, 1995, effective immediately; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996. Comment revised December 22, 1995, effective February 1, 1996. The April 1, 1996 effective date extended to July 1, 1996. Comment revised September 26, 1996, effective January 1, 1997; Comment revised April 18, 1997, effective immediately; Comment revised January 9, 1998, effective immediately; amended July 15, 1999, effective January 1, 2000; renumbered Rule 704 and amended March 1, 2000, effective April 1, 2001; Comment revised March 27, 2003, effective July 1, 2003; amended April 28, 2005, effective August 1, 2005; Comment revised March 15, 2013, effective May 1, 2013; Comment revised March 9, 2016, effective July 1, 2016.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).

Report explaining the 1995 amendment to paragraph (C)(3) published with the Court’s Order at 25 Pa.B. 236 (January 21, 1995).

Final Report explaining the September 13, 1995 amendments concerning bail published with the Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

Final Report explaining the December 22, 1995 Comment revision on restitution published with the Court’s Order at 26 Pa.B. 13 (January 6, 1996).

Final Report explaining the September 26, 1996 Comment revision on Rule 1409 procedures published with the Court’s Order at 26 Pa.B. 4900 (October 12, 1996).

Final Report explaining the April 18, 1997 Comment revisions published with the Court’s Order at 27 Pa.B. 2122 (May 3, 1997).

Final Report explaining the January 9, 1998 Comment revisions concerning Guideline Sentence Forms, and summary case appeal notice, published with the Court’s Order at 28 Pa.B. 481 (January 31, 1998).

Final Report explaining the July 15, 1999 amendments concerning the time for sentencing published with the Court’s Order at 29 Pa.B. 4059 (July 31, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 27, 2003 Comment revision adding cross-references to 18 Pa.C.S. § 1106 and 42 Pa.C.S. § 9728 published with the Court’s Order at 33 Pa.B. 1928 (April 19, 2003).

Final Report explaining the April 28, 2005 amendments to paragraph (C)(3)(b) concerning retained counsel’s obligations published with the Court’s Order at 35 Pa.B. 2859 (May 14, 2005).

Final Report explaining the March 15, 2013 revision of the Comment adding citations to the Sentencing Code published with the Court’s Order at 43 Pa.B. 1705 (March 30, 2013).

Final Report explaining the March 9, 2016 revision of the Comment adding a cross-reference to Rule 705.1 concerning restitution published with the Court’s Order at 46 Pa.B. 1540 (March 26, 2016).

The provisions of this Rule 704 amended March 27, 2003, effective July 1, 2003, 33 Pa.B. 1927; amended April 28, 2005, effective August 1, 2005, 35 Pa.B. 2855; amended March 15, 2013, effective May 1, 2013, 43 Pa.B. 1702; amended March 9, 2016, effective July 1, 2016, 46 Pa.B. 1532; amended April 21, 2026, effective November 1, 2026, 56 Pa.B. 2555. Immediately preceding text appears at serial pages (380224) to (380228).

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

234 Pa. Code Rule 705 Imposition of Sentence. {#sec-rule-705 omnilex-key=us-pa-regs-official--title-234--Rule 705}

(A) When imposing a sentence to imprisonment, the judge shall state the date the sentence is to commence.

(B) When more than one sentence is imposed at the same time on a defendant, or when a sentence is imposed on a defendant who is sentenced for another offense, the judge shall state whether the sentences shall run concurrently or consecutively. If the sentence is to run concurrently, the sentence shall commence from the date of imposition unless otherwise ordered by the judge.

This rule was amended in 1996 to eliminate language that created a presumption that certain sentences run concurrently unless the judge states otherwise, and by deleting former paragraph (b) as unnecessary. The rule now requires the judge to state whether sentences run concurrently or consecutively.

The 2005 amendments adding new paragraph (A) and adding language to paragraph (B) clarify the procedures for determining the date of commencement of sentences of imprisonment.

The computation of sentences and credit for time served also are addressed in the Sentencing Code. See 42 Pa.C.S. § § 9760 and 9761.

Official Note

Rule 1406 adopted July 23, 1973, effective 90 days hence; amended March 21, 1975, effective March 31, 1975; amended November 7, 1996, effective January 1, 1997; renumbered Rule 705 and Comment revised March 1, 2000, effective April 1, 2001; amended May 18, 2005, effective August 1, 2005.

Committee Explanatory Reports:

Final Report explaining the November 7, 1996 amendments published with the Court’s Order at 26 Pa.B. 5694 (November 23, 1996).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the amendments concerning date of commencement of sentence published with the Court’s Order at 35 Pa.B. 3218 (June 4, 2005).

The provisions of this Rule 705 amended May 18, 2005, effective August 1, 2005, 35 Pa.B. 3217. Immediately preceding text appears at serial page (311416).

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

234 Pa. Code Rule 705.1 Restitution. {#sec-rule-705.1 omnilex-key=us-pa-regs-official--title-234--Rule 705.1}

(A) At the time of sentencing, the judge shall determine what restitution, if any, shall be imposed.

(B) In any case in which restitution is imposed, the judge shall state in the sentencing order:

(1) the amount of restitution ordered;

(2) the details of a payment plan, if any, including when payment is to begin;

(3) the identity of the payee(s);

(4) to which officer or agency the restitution payment shall be made;

(5) whether any restitution has been paid and in what amount; and

(6) whether the restitution has been imposed as a part of the sentence and/or as a condition of probation.

This rule provides the procedures for the statutory requirement for the judge to impose restitution. In all cases in which restitution is imposed, the sentencing judge must state on the record the amount of restitution at the time of sentencing. See 18 Pa.C.S. § 1106 and 42 Pa.C.S. § § 9721, 9728.

The extent of restitution also may be provided by statute. See, e.g., 18 Pa.C.S. § 1107 (restitution for timber theft); § 1107.1 (restitution for identity theft); and § 1110 (restitution for cleanup of clandestine labs).

When imposing restitution, the sentencing judge should consider whether the defendant has received notice of the intention to seek restitution prior to the hearing and whether the defendant intends to object to the imposition of restitution. The sentencing hearing may need to be continued as a result.

Paragraph (B)(6) requires that the sentencing order make clear whether any restitution is being imposed as a part of the sentence pursuant to 18 Pa.C.S. § 1106 or as a condition of probation pursuant to 42 Pa.C.S. § 9754. Unlike restitution imposed under § 1106 that is penal in nature, restitution imposed as a condition of probation is primarily aimed at rehabilitation. Sentences of probation give a trial court the flexibility to determine all the direct and indirect damages caused by a defendant. Commonwealth v. Harner, 617 A.2d 702 (Pa. 1992); Commonwealth v. Hall, 80 A.3d 1204 (Pa. 2013). Because a term of probation may not exceed the maximum term for which the defendant could be confined, and a court cannot enforce a restitution sentence past the statutory maximum date, a court may not require that restitution imposed as a condition of probation be paid beyond the statutory maximum date. Commonwealth v. Karth, 994 A.2d 606 (Pa. Super. 2010).

Certain costs are mandatory and must be imposed. See, e.g., Section 1101 of the Crime Victims Act, 18 P.S. § 11.1101.

Official Note

New Rule 705.1 adopted March 9, 2016, effective July 1, 2016.

Committee Explanatory Reports:

Final Report explaining new Rule 705.1 concerning sentences of restitution published with the Court’s Order at 46 Pa.B. 1540 (March 26, 2016).

The provisions of this Rule 705.1 adopted March 9, 2016, effective July 1, 2016, 46 Pa.B. 1532.

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

234 Pa. Code Rule 706 Fines or Costs. {#sec-rule-706 omnilex-key=us-pa-regs-official--title-234--Rule 706}

(A) A court shall not commit the defendant to prison for failure to pay a fine or costs unless it appears after hearing that the defendant is financially able to pay the fine or costs.

(B) When the court determines, after hearing, that the defendant is without the financial means to pay the fine or costs immediately or in a single remittance, the court may provide for payment of the fines or costs in such installments and over such period of time as it deems to be just and practicable, taking into account the financial resources of the defendant and the nature of the burden its payments will impose, as set forth in paragraph (D) below.

(C) The court, in determining the amount and method of payment of a fine or costs shall, insofar as is just and practicable, consider the burden upon the defendant by reason of the defendant’s financial means, including the defendant’s ability to make restitution or reparations.

(D) In cases in which the court has ordered payment of a fine or costs in installments, the defendant may request a rehearing on the payment schedule when the defendant is in default of a payment or when the defendant advises the court that such default is imminent. At such hearing, the burden shall be on the defendant to prove that his or her financial condition has deteriorated to the extent that the defendant is without the means to meet the payment schedule. Thereupon the court may extend or accelerate the payment schedule or leave it unaltered, as the court finds to be just and practicable under the circumstances of record. When there has been default and the court finds the defendant is not indigent, the court may impose imprisonment as provided by law for nonpayment.

See generally Commonwealth ex rel. Benedict v. Cliff, 451 Pa. 427, 304 A.2d 158 (1973).

Under this rule, when a defendant fails to pay the fine and costs, the common pleas court judge may issue a bench warrant for the collection of the fine and costs. When a ‘‘failure to pay’’ bench warrant is issued, the bench warrant must be executed by a police officer following the procedures set forth in Rule 431(C)(1)(c) and (C)(2), or, if the defendant is unable to pay, the police officer must proceed as provided in Rule 150 (Bench Warrants).

Nothing in this rule is intended to abridge any rights the Commonwealth may have in a civil proceeding to collect a fine or costs.

For suspension of Acts of Assembly, see Rule 1101(F).

Official Note

Rule 1407 approved July 23, 1973, effective 90 days hence; renumbered Rule 706 and amended March 1, 2000, effective April 1, 2001; Comment revised March 9, 2006, effective August 1, 2006.

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. 1478 (March 18, 2000).

Final Report explaining the March 9, 2006 Comment revision concerning fine and cost warrants published with the Court’s Order at 36 Pa.B. 1396 (March 25, 2006).

The provisions of this Rule 706 amended March 9, 2006, effective August 1, 2006, 36 Pa.B. 1396. Immediately preceding text appears at serial pages (311772) to (311773).

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

234 Pa. Code Rule 707 Documents Transmitted to Prison. {#sec-rule-707 omnilex-key=us-pa-regs-official--title-234--Rule 707}

When a defendant is sentenced to a term of imprisonment of two years or more, a copy of each of the following shall be delivered to the person in charge of the correctional facility to which the defendant is committed at the time the defendant is delivered thereto:

(1) any available pre-sentence investigation report;

(2) any report by a state correctional diagnostic and classification center; and

(3) any medical, psychiatric, or social agency report used by the sentencing judge in imposing sentence or by a probation department or state correctional diagnostic and classification center in compiling a report to the sentencing judge.

It is intended that the confidentiality of such reports remain as secure after they have been delivered pursuant to this rule as at any previous stage. Cf. Rule 703.

See also 42 Pa.C.S. § 9764(b) that requires the court within 10 days of sentencing to provide specified information to the county correctional facility.

Official Note

Rule 1408 adopted July 23, 1973, effective 90 days hence; renumbered Rule 707 and amended March 1, 2000, effective April 1, 2001; Comment revised March 15, 2013, effective May 1, 2013.

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. 1478 (March 18, 2000).

Final Report explaining the March 15, 2013 revision of the Comment adding citations to the Sentencing Code published with the Court’s Order at 43 Pa.B. 1705 (March 30, 2013).

The provisions of this Rule 707 amended March 15, 2013, effective May 1, 2013, 43 Pa.B. 1702. Immediately preceding text appears at serial page (287563).

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

234 Pa. Code Rule 708 Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition. {#sec-rule-708 omnilex-key=us-pa-regs-official--title-234--Rule 708}

(A) A written request for revocation shall be filed with the clerk of courts.

(B) Whenever a defendant has been sentenced to probation or intermediate punishment, or placed on parole, the judge shall not revoke such probation, intermediate punishment, or parole as allowed by law unless there has been:

(1) a hearing held as speedily as possible at which the defendant is present and represented by counsel; and

(2) a finding of record that the defendant violated a condition of probation, intermediate punishment, or parole.

(C) Before the imposition of sentence,

(1) the defendant may plead guilty to other offenses that the defendant committed within the jurisdiction of the sentencing court.

(2) When such pleas are accepted, the court shall sentence the defendant for all the offenses.

(D) Sentencing Procedures

(1) At the time of sentencing, the judge shall afford the defendant the opportunity to make a statement in his or her behalf and shall afford counsel for both parties the opportunity to present information and argument relative to sentencing.

(2) The judge shall state on the record the reasons for the sentence imposed.

(3) The judge shall advise the defendant on the record:

(a) of the right to file a motion to modify sentence and to appeal, of the time within which the defendant must exercise those rights, and of the right to assistance of counsel in the preparation of the motion and appeal; and

(b) of the rights, if the defendant is indigent, to seek waiver of costs as provided for in Rule 124 (Waiver of Fees and Costs) and to proceed with assigned counsel as provided in Rule 122.

(4) The judge shall require that a record of the sentencing proceeding be made and preserved so that it can be transcribed as needed. The record shall include:

(a) the record of any stipulation made at a pre-sentence conference; and

(b) a verbatim account of the entire sentencing proceeding.

(E) Motion to Modify Sentence

A motion to modify a sentence imposed after a revocation shall be filed within 10 days of the date of imposition. The filing of a motion to modify sentence will not toll the 30-day appeal period.

This rule addresses Gagnon II revocation hearings only, and not the procedures for determining probable cause (Gagnon I). See Gagnon v. Scarpelli, 411 U. S. 778 (1973).

Paragraph (A) requires that the Gagnon II proceeding be initiated by a written request for revocation filed with the clerk of courts.

The judge may not revoke probation or parole on arrest alone, but only upon a finding of a violation thereof after a hearing, as provided in this rule. However, the judge need not wait for disposition of new criminal charges to hold such hearing. See Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973).

This rule does not govern parole cases under the jurisdiction of the Pennsylvania Board of Probation and Parole, but applies only to the defendants who can be paroled by a judge. See 61 P. S. § 314. See also Georgevich v. Court of Common Pleas of Allegheny County, 510 Pa. 285, 507 A.2d 812 (1986).

This rule was amended in 1996 to include sentences of intermediate punishment. See 42 Pa.C.S. § § 9763 and 9773. Rules 704, 720, and 721 do not apply to revocation cases.

The objective of the procedures enumerated in paragraph (C) is to enable the court to sentence the defendant on all outstanding charges within the jurisdiction of the sentencing court at one time. See Rule 701.

When a defendant is permitted to plead guilty to multiple offenses as provided in paragraph (C), if any of the other offenses involves a victim, the sentencing proceeding must be delayed to afford the Commonwealth adequate time to contact the victim(s), and to give the victim(s) an opportunity to offer prior comment on the sentencing or to submit a written and oral victim impact statement. See the Crime Victims Act, 18 P. S. § 11.201(5).

Issues properly preserved at the sentencing proceeding need not, but may, be raised again in a motion to modify sentence in order to preserve them for appeal. In deciding whether to move to modify sentence, counsel must carefully consider whether the record created at the sentencing proceeding is adequate for appellate review of the issues, or the issues may be waived. See Commonwealth v. Jarvis, 444 Pa. Super. 295, 663 A.2d 790, 791-2, n.1 (1995). As a general rule, the motion to modify sentence under paragraph (E) gives the sentencing judge the earliest opportunity to modify the sentence. This procedure does not affect the court’s inherent powers to correct an illegal sentence or obvious and patent mistakes in its orders at any time before appeal or upon remand by the appellate court. See, e.g., Commonwealth v. Jones, 520 Pa. 385, 554 A.2d 50 (1989) (sentencing court can, sua sponte, correct an illegal sentence even after the defendant has begun serving the original sentence) and Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970) (inherent power of the court to correct obvious and patent mistakes).

Under this rule, the mere filing of a motion to modify sentence does not affect the running of the 30-day period for filing a timely notice of appeal. Any appeal must be filed within the 30-day appeal period unless the sentencing judge within 30 days of the imposition of sentence expressly grants reconsideration or vacates the sentence. See Commonwealth v. Coleman, 721 A.2d 798, 799, fn.2 (Pa. Super. 1998). See also Pa.R.A.P. 1701(b)(3).

Once a sentence has been modified or re-imposed pursuant to a motion to modify sentence under paragraph (E), a party wishing to challenge the decision on the motion does not have to file an additional motion to modify sentence in order to preserve an issue for appeal, as long as the issue was properly preserved at the time sentence was modified or re-imposed.

Official Note

Former Rule 1409 adopted July 23, 1973, effective 90 days hence; amended May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978; Comment revised November 1, 1991, effective January 1, 1992; amended September 26, 1996, effective January 1, 1997; Comment revised August 22, 1997, effective January 1, 1998; renumbered Rule 708 and amended March 1, 2000, effective April 1, 2001; amended February 26, 2002, effective July 1, 2002; amended March 15, 2013, effective May 1, 2013.

Committee Explanatory Reports:

Report explaining the January 1, 1992 amendments published at 21 Pa.B. 2246 (May 11, 1990); Supplemental Report published with the Court’s Order at 21 Pa.B. 5329 (November 16, 1991).

Final Report explaining the September 26, 1996 amendments published with the Court’s Order at 26 Pa.B. 4900 (October 12, 1996).

Final Report explaining the August 22, 1997 Comment revision that cross-references Rule 721 published with the Court’s Order at 27 Pa.B. 4553 (September 6, 1997).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the February 26, 2002 amendments concerning the 30-day appeal period published with the Court’s Order at 32 Pa.B. 1394 (March 16, 2002).

Final Report explaining the March 15, 2013 amendments to paragraph (C) concerning multiple guilty pleas and the Comment concerning the Crime Victims Act published at 43 Pa.B. 1705 (March 30, 2013).

The provisions of this Rule 708 amended February 26, 2002, effective July 1, 2002, 32 Pa.B. 1393; amended March 15, 2013, effective May 1, 2013, 43 Pa.B. 1702; amended April 21, 2026, effective November 1, 2026, 56 Pa.B. 2555. Immediately preceding text appears at serial pages (366239) to (366241).

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

234 Pa. Code Rule 720 Post-Sentence Procedures; Appeal. {#sec-rule-720 omnilex-key=us-pa-regs-official--title-234--Rule 720}

(A) TIMING.

(1) Except as provided in paragraphs (C) and (D), a written post-sentence motion shall be filed no later than 10 days after imposition of sentence.

(2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed:

(a) within 30 days of the entry of the order deciding the motion;

(b) within 30 days of the entry of the order denying the motion by operation of law in cases in which the judge fails to decide the motion; or

(c) within 30 days of the entry of the order memorializing the withdrawal in cases in which the defendant withdraws the motion.

(3) If the defendant does not file a timely post-sentence motion, the defendant’s notice of appeal shall be filed within 30 days of imposition of sentence, except as provided in paragraph (A)(4).

(4) If the Commonwealth files a timely motion to modify sentence pursuant to Rule 721, the defendant’s notice of appeal shall be filed within 30 days of the entry of the order disposing of the Commonwealth’s motion.

(B) OPTIONAL POST-SENTENCE MOTION.

(1) Generally.

(a) The defendant in a court case shall have the right to make a post-sentence motion. All requests for relief from the trial court shall be stated with specificity and particularity, and shall be consolidated in the post-sentence motion, which may include:

(i) a motion challenging the validity of a plea of guilty or nolo contendere, or the denial of a motion to withdraw a plea of guilty or nolo contendere;

(ii) a motion for judgment of acquittal;

(iii) a motion in arrest of judgment;

(iv) a motion for a new trial; and/or

(v) a motion to modify sentence.

(b) The defendant may file a supplemental post-sentence motion in the judge’s discretion as long as the decision on the supplemental motion can be made in compliance with the time limits of paragraph (B)(3).

(c) Issues raised before or during trial shall be deemed preserved for appeal whether or not the defendant elects to file a post-sentence motion on those issues.

(2) Trial Court Action.

(a) Briefing Schedule

Within 10 days after a post-sentence motion is filed, if the judge determines that briefs or memoranda of law are required for a resolution of the motion, the judge shall schedule a date certain for the submission of briefs or memoranda of law by the defendant and the Commonwealth.

(b) Hearing; Argument

The judge shall also determine whether a hearing or argument on the motion is required, and if so, shall schedule a date or dates certain for one or both.

(c) Transcript

If the grounds asserted in the post-sentence motion do not require a transcript, neither the briefs nor hearing nor argument on the post-sentence motion shall be delayed for transcript preparation.

(3) Time Limits for Decision on Motion.

The judge shall not vacate sentence pending decision on the post-sentence motion, but shall decide the motion as provided in this paragraph.

(a) Except as provided in paragraph (B)(3)(b), the judge shall decide the post-sentence motion, including any supplemental motion, within 120days of the filing of the motion. If the judge fails to decide the motion within 120 days, or to grant an extension as provided in paragraph (B)(3)(b), the motion shall be deemed denied by operation of law.

(b) Upon motion of the defendant within the 120-day disposition period, for good cause shown, the judge may grant one 30-day extension for decision on the motion. If the judge fails to decide the motion within the 30-day extension period, the motion shall be deemed denied by operation of law.

(c) When a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the court, and, as provided in Rule 114, forthwith shall serve a copy of the order on the attorney for the Commonwealth, the defendant’s attorney, or the defendant if unrepresented, that the post-sentence motion is deemed denied. This order is not subject to reconsideration.

(d) If the judge denies the post-sentence motion, the judge promptly shall issue an order and the order shall be filed and served as provided in Rule 114.

(e) If the defendant withdraws a post-sentence motion, the judge promptly shall issue an order memorializing the withdrawal, and the order shall be filed and served as provided in Rule 114.

(4) Contents of Order.

An order denying a post-sentence motion, whether issued by the judge pursuant to paragraph (B)(3)(d) or entered by the clerk of courts pursuant to paragraph (B)(3)(c), or an order issued following a defendant’s withdrawal of the post-sentence motion, shall include notice to the defendant of the following:

(a) the right to appeal and the time limits within which the appeal must be filed;

(b) the right to assistance of counsel in the preparation of the appeal;

(c) the rights, if the defendant is indigent, to seek waiver of costs as provided for in Rule 124 (Waiver of Fees and Costs) and to proceed with assigned counsel as provided in Rule 122; and

(d) the qualified right to bail under Rule 521(B).

(C) AFTER-DISCOVERED EVIDENCE.

A post-sentence motion for a new trial on the ground of after-discovered evidence must be filed in writing promptly after such discovery.

(D) SUMMARY CASE APPEALS.

There shall be no post-sentence motion in summary case appeals following a trial de novo in the court of common pleas. The imposition of sentence immediately following a determination of guilt at the conclusion of the trial de novo shall constitute a final order for purposes of appeal.

See Rules 606, 608 and 622.

For post-sentence procedures after a sentence of death has been imposed, see Rule 811.

The purpose of this rule is to promote the fair and prompt disposition of all issues relating to guilty pleas, trial, and sentence by consolidating all possible motions to be submitted for trial court review, and by setting reasonable but firm time limits within which the motion must be decided. Because the post-sentence motion is optional, the defendant may choose to raise any or all properly preserved issues in the trial court, in the appellate court, or both.

TIMING

Paragraph (A) contains the timing requirements for filing the optional post-sentence motion and taking an appeal. Under paragraph (A)(1), the post-sentence motion must be filed within 10 days of imposition of sentence.

When a defendant files a timely post-sentence motion, the 30-day period for the defendant’s direct appeal on all matters in that case—including all issues related to any informations and any charges consolidated against the defendant for trial—is triggered by the trial judge’s decision on the post-sentence motion, the denial of the motion by operation of law, or the withdrawal of the post-sentence motion. The appeal period runs from the entry of the order. As to the date of entry of orders, see Pa.R.A.P. 108. See also Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998), concerning the time for appeal following the withdrawal of a post-sentence motion. No direct appeal may be taken by a defendant while his or her post-sentence motion is pending. See paragraph (A)(2).

If no timely post-sentence motion is filed, the defendant’s appeal period runs from the date sentence is imposed. See paragraph (A)(3). Under paragraph (A)(4), however, when the defendant has not filed a post-sentence motion but the Commonwealth files a timely motion to modify sentence under Rule 721, it is the entry of the order disposing of the Commonwealth’s motion that commences the 30-day period during which the defendant’s notice of appeal must be filed. See Rule 721(B)(2)(b).

All references to appeals in this rule relate to the defendant’s right to appeal. The rule does not address or alter the Commonwealth’s right to appeal. For Commonwealth challenges to sentences, see Rule 721.

OPTIONAL POST-SENTENCE MOTION

Paragraph (B) represents a departure from traditional Pennsylvania practice. It is intended to give the defendant the option of resubmitting for the trial judge’s consideration issues that were raised before or during trial. Although the defendant may choose to raise only some issues in the post-sentence motion, the decision on the motion triggers the appeal period on all properly preserved issues. See paragraph (A)(2).

Under paragraph (B)(1)(c), any issue raised before or during trial is deemed preserved for appeal whether or not the defendant chooses to raise the issue in a post-sentence motion. It follows that the failure to brief or argue an issue in the post-sentence motion would not waive that issue on appeal as long as the issue was properly preserved, in the first instance, before or during trial. Nothing in this rule, however, is intended to address Pa.R.A.P. 1925(b) or the preservation of appellate issues once an appeal is filed. See Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998) (any issues not raised in a 1925(b) statement will be deemed waived).

Nothing in this rule precludes the judge from granting a motion for extraordinary relief before sentencing under the special provisions of Rule 704(B). But see Rule 704(B)(3).

Under paragraph (A)(1), if a defendant chooses to file a post-sentence motion, the motion must be filed within 10 days of imposition of sentence. The filing of the written post-sentence motion triggers the time limits for decision on the motion, including any supplement to it filed pursuant to paragraph (B)(1)(b). See paragraph (B)(3)(a).

For procedures governing post-sentence challenges to the sufficiency of the evidence, see Rule 606(A)(6) and (A)(7). For challenges to the weight of the evidence, see Rule 607(A).

In those cases in which a petitioner under the Post Conviction Relief Act has been granted leave to file a post-sentence motion or to appeal nunc pro tunc, the filing of the post-sentence motion or the notice of appeal must comply with the timing requirements contained in paragraph (A) of this rule. See the Post Conviction Relief Act, 42 Pa.C.S. § § 9541 et seq.

BRIEFS; TRANSCRIPTS; ARGUMENT

Under paragraph (B)(2)(a), the judge should determine, on a case-by-case basis, whether briefs or memoranda of law are required for a fair resolution of the post-sentence motion. If they are not needed, or if a concise summary of the relevant law and facts is sufficient, the judge should so order. Any local rules requiring briefs or oral argument are inconsistent with this rule. See Rule 105(B)(1).

Under paragraph (B)(2)(c), the judge, in consultation with defense counsel and the attorney for the Commonwealth, should determine what, if any, portions of the notes of testimony must be transcribed so that the post-sentence motion can be resolved. The judge should then set clear deadlines for the court reporter to insure timely disposition of the motion. Nothing in this rule precludes the judge from ordering the transcript or portions of it immediately after the conclusion of the trial or the entry of a plea.

Paragraph (B)(1)(b) permits the trial judge to entertain a supplemental post-sentence motion at his or her discretion, as long as the decision on the supplemental issue(s) is made within the time limits of paragraph (B)(3).

For the recording and transcribing of court proceedings generally, see Rule 115. The requirements for the record and the writing of an opinion on appeal are set forth in the Pennsylvania Rules of Appellate Procedure.

There is no requirement that oral argument be heard on every post-sentence motion. When argument is to be heard, however, the judge should determine whether the post-sentence motion argument must be argued before the judge alone, or before a panel sitting en banc. It is recommended that, except in extraordinary circumstances, the post-sentence motion be heard by the judge alone. The judge may make any rulings that could be made by a court en banc. See Commonwealth v. Norris, 256 Pa. Super. 196, 389 A.2d 668 (1978). On the powers of courts en banc, see Commonwealth v. Bonser, 215 Pa. Super. 452, 258 A.2d 675 (1969). For cases in which there has been a change of venue, see Rule 584.

When oral argument is heard on the post-sentence motion, the defendant need not be present.

DISPOSITION

Under paragraph (B)(3), once the defendant makes a timely written post-sentence motion, the judge retains jurisdiction for the duration of the disposition period. The judge may not vacate the order imposing sentence pending decision on the post-sentence motion. This is so whether or not the Commonwealth files a motion to modify sentence. See Rule 721.

Paragraph (B)(3)(b) permits one 30-day extension of the 120-day time limit, for good cause shown, upon motion of the defendant. In most cases, an extension would be requested and granted when new counsel has entered the case. Only the defendant or counsel may request such an extension. The judge may not, sua sponte, extend the time for decision: a congested court calendar or other judicial delay does not constitute ‘‘good cause’’ under this rule.

The possibility of an extension is not intended to suggest that 120 days are required for decision in most cases. The time limits for disposition of the post-sentence motion are the outer limits. Easily resolvable issues, such as a modification of sentence or a guilty plea challenge, should ordinarily be decided in a much shorter period of time.

If the trial judge decides the motion within the time limits of this rule, the judge may grant reconsideration on the post-sentence motion pursuant to 42 Pa.C.S. § 5505 or Pa.R.A.P. 1701.1, but the judge may not vacate the sentence pending reconsideration. Rule 720(B)(3). The reconsideration period may not be used to extend the timing requirements set forth in paragraph (B)(3) for decision on the post-sentence motion: the time limits imposed by paragraphs (B)(3)(a) and (B)(3)(b) continue to run from the date the post-sentence motion was originally filed. The trial judge’s reconsideration must therefore be resolved within the 120-day decision period of paragraph (B)(3)(a) or the 30-day extension period of paragraph (B)(3)(b), whichever applies. If a decision on the reconsideration is not reached within the appropriate period, the post-sentence motion, including any issues raised for reconsideration, will be denied pursuant to paragraph (B)(3)(c).

Under paragraph (B)(3)(a), on the date when the court disposes of the motion, or the date when the motion is denied by operation of law, the judgment becomes final for the purposes of appeal. See Judicial Code, 42 Pa.C.S. § § 102, 722, 742, 5105(a) and Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).

An order entered by the clerk of courts under paragraph (B)(3)(c) constitutes a ministerial order and, as such, is not subject to reconsideration or modification pursuant to 42 Pa.C.S. § 5505 or Pa.R.A.P. 1701.

If the motion is denied by operation of law, paragraph (B)(3)(c) requires that the clerk of courts enter an order denying the motion on behalf of the court and immediately notify the attorney for the Commonwealth, the defendant’s attorney, or the defendant if unrepresented, that the motion has been denied. This notice is intended to protect the defendant’s right to appeal. The clerk of courts also must comply with the filing, service, and docket entry requirements of Rule 114.

The disposition of a motion to modify a sentence imposed after a revocation hearing is governed by Rule 708 (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition).

CONTENTS OF ORDER

Paragraph (B)(4) protects the defendant’s right to appeal by requiring that the judge’s order denying the motion, the clerk of courts’ order denying the motion by operation of law, or the order entered memorializing a defendant’s withdrawal of a post-sentence motion, contain written notice of the defendant’s appeal rights. This requirement ensures adequate notice to the defendant, which is important given the potential time lapse between the notice provided at sentencing and the resolution of the post-sentence motion. See Rule 704(C)(3). See also Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998), concerning the contents of the order memorializing the withdrawal of a post-sentence motion.

When a defendant withdraws a post-sentence motion in open court and on the record, the judge should orally enter an order memorializing the withdrawal for the record, and give the defendant notice of the information required by paragraph (B)(4). See Commonwealth v. Miller, supra.

MISCELLANEOUS

Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), which overrules Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), provides that a defendant should wait until collateral review to raise ineffective counsel claims.

Under paragraph (B)(1)(a), the grounds for the post-sentence motion should be stated with particularity. Motions alleging insufficient evidence, for example, must specify in what way the evidence was insufficient, and motions alleging that the verdict was against the weight of the evidence must specify why the verdict was against the weight of the evidence.

Because the post-sentence motion is optional, the failure to raise an issue with sufficient particularity in the post-sentence motion will not constitute a waiver of the issue on appeal as long as the issue was preserved before or during trial. See paragraph (B)(1)(c).

Under paragraph (B)(1)(a)(ii), a challenge to the sufficiency of the evidence would be made in a motion for judgment of acquittal. See Rule 606.

A post-sentence challenge to a guilty plea under this rule is distinct from a motion to withdraw a guilty plea prior to sentence. See Rule 591. Cf. Standards Relating to Pleas of Guilty § 2.1(a)(ii), ABA PROJECT ON MINIMUM STANDARDS FOR CRIMINAL JUSTICE (Approved Draft, 1968). Properly preserved issues related to guilty pleas need not be raised again in the post-sentence motion, but the defendant may choose to do so. A key consideration for the defendant is whether the record will be adequate for appellate review. If counsel is uncertain about the record, it is recommended that the guilty plea be challenged in the post-sentence motion.

Issues properly preserved at the sentencing proceeding need not, but may be raised again in a motion to modify sentence in order to preserve them for appeal. In deciding whether to move to modify sentence, counsel must carefully consider whether the record created at the sentencing proceeding is adequate for appellate review of the issues, or the issues may be waived. See Commonwealth v. Jarvis, 444 Pa. Super. 296, 663 A.2d 790 (1995). See also Rule 704(C)(4). As a general rule, the motion to modify sentence under paragraph (B)(1)(a)(v) gives the sentencing judge the earliest opportunity to modify the sentence. This procedure does not affect the court’s inherent powers to correct an illegal sentence or obvious and patent mistakes in its orders at any time before appeal or upon remand by the appellate court. See, e.g., Commonwealth v. Jones, 520 Pa. 385, 554 A.2d 50 (1989) (sentencing court can, sua sponte, correct an illegal sentence even after the defendant has begun serving the original sentence) and Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970) (inherent power of the court to correct obvious and patent mistakes).

Once a sentence has been modified or reimposed pursuant to a motion to modify sentence under paragraph (B)(1)(a)(v) or Rule 721, a party wishing to challenge the decision on the motion does not have to file an additional motion to modify sentence in order to preserve an issue for appeal, as long as the issue was properly preserved at the time sentence was modified or reimposed.

Commonwealth challenges to sentences are governed by Rule 721. If the defendant files a post-sentence motion, the time limits for decision on the defendant’s motion govern the time limits for disposition of the Commonwealth motion to modify sentence, regardless of which motion is filed first. See Rule 721(C)(1). If the defendant elects to file an appeal and the Commonwealth files a motion to modify sentence, decision on the Commonwealth’s motion triggers the defendant’s 30-day appeal period. See Rule 720(A)(4).

Given that the Commonwealth has 10 days to file a motion to modify sentence under Rule (B)(1), it is possible that the defendant might elect to file a notice of appeal under Rule 720 (A)(3) followed by the Commonwealth’s filing a timely motion to modify sentence. When this occurs, the defendant’s notice of appeal is rendered premature, because the entry of the order disposing of the Commonwealth’s motion to modify sentence then becomes the triggering device for the defendant’s notice of appeal. In this situation, counsel for the defendant should be aware that Pa.R.A.P. 905(a) addresses this problem. In response to an extensive history of appeals that were quashed because of the premature filing of the notice of appeal, the last sentence of Pa.R.A.P. 905(a) was drafted to create a legal fiction that treats a premature notice of appeal as filed after the entry of the appealable order. For a discussion of this provision, see Darlington, McKeon, Schuckers, and Brown, Pennsylvania Appellate Practice, 2d., § 905.3.

For bail proceedings pending the outcome of the post-sentence motion, see Rules 521 and 523.

Unlike ineffective counsel claims, which are the subject of Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), paragraph (C) requires that any claim of after-discovered evidence must be raised promptly after its discovery. Accordingly, after-discovered evidence discovered during the post-sentence stage must be raised promptly with the trial judge at the post-sentence stage; after-discovered evidence discovered during the direct appeal process must be raised promptly during the direct appeal process, and should include a request for a remand to the trial judge; and after-discovered evidence discovered after completion of the direct appeal process should be raised in the context of the PCRA. See 42 Pa.C.S. § 9545(b)(1)(ii) and (b)(2) (PCRA petition raising after-discovered evidence must be filed within 60 days of date claim could have been presented). Commonwealth v. Kohan, 825 A.2d 702 (Pa. Super. 2003), is superseded by the 2005 amendments to paragraphs (A) and (C) of the rule.

Although there are no post-sentence motions in summary appeals following the trial de novo pursuant to paragraph (D), nothing in this rule is intended to preclude the trial judge from acting on a defendant’s petition for reconsideration. See the Judicial Code, 42 Pa.C.S. § 5505. See also Commonwealth v. Dougherty, 451 Pa. Super. 248, 679 A.2d 779, 784 (1996). The time for appeal in summary cases following a trial de novo runs from the imposition of sentence.

Official Note

Previous Rule 1410, adopted May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978; rescinded March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994, and replaced by present Rule 1410. Present Rule 1410 adopted March 22, 1993 and amended December 17, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; 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. Comment revised September 26, 1996, effective January 1, 1997; amended August 22, 1997, effective January 1, 1998; Comment revised October 15, 1997, effective January 1, 1998; amended July 9, 1999, effective January 1, 2000; renumbered Rule 720 and amended March 1, 2000, effective April 1, 2001; amended August 21, 2003, effective January 1, 2004; amended March 3, 2004, effective July 1, 2004; Comment revised June 4, 2004, effective November 1, 2004; amended June 8, 2005, effective August 1, 2005; Comment revised January 18, 2007, effective August 1, 2007.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).

Report explaining the December 17, 1993 amendments published with the Court’s Order at 24 Pa.B. 334 (January 15, 1994).

Final Report explaining the September 13, 1995 amendments concerning bail published with the Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

Final Report explaining the September 26, 1996 Comment revision on Rule 1409 procedures published at 26 Pa.B. 4900 (October 12, 1996).

Final Report explaining the August 22, 1997 amendments to paragraphs (A)(4) and (B)(3) published with the Court’s Order at 27 Pa.B. 4553 (September 6, 1997).

Final Report explaining the Comment references to Rule 1124A (Challenges to the Weight of the Evidence) and to Commonwealth v. Dougherty published with the Court’s Order at 27 Pa.B. 5594 (November 1, 1997).

Final Report explaining the July 9, 1999 amendments to paragraphs (A)(2) and (B)(4) concerning time for appeal and contents of the order entered following withdrawal of post-sentence motion, and revision of the Comment adding the citation to Commonwealth v. Lord, published with the Court’s Order at 29 Pa.B. 3836 (July 24, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the August 21, 2003 changes to Rule 720 concerning the timeliness of filings and the order published at 33 Pa.B. 4438 (September 6, 2003).

Final Report explaining the March 3, 2004 amendments updating the cross-references correlative to the March 3, 2004 changes to the motions rules published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

Final Report explaining the June 8, 2005 changes concerning ineffective counsel claims and concerning after-discovered evidence published with the Court’s Order at 35 Pa.B. 3545 (June 25, 2005).

Final Report explaining the January 18, 2007 revision of the last paragraph of the Comment clarifying the time for appeal following a trial de novo published with the Court’s Order at 37 Pa.B. 526 (February 3, 2007).

The provisions of this Rule 720 amended August 21, 2003, effective January 1, 2004, 33 Pa.B. 4436; amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105; amended June 8, 2005, effective August 1, 2005, 35 Pa.B. 3543; amended February 2, 2007, effective August 1, 2007, 37 Pa.B. 523; amended April 21, 2026, effective November 1, 2026, 56 Pa.B. 2555. Immediately preceding text appears at serial pages (366241) to (366242) and (325801) to (325807).

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

234 Pa. Code Rule 721 Procedures for Commonwealth Challenges to Sentencing; Sentencing Appeals. {#sec-rule-721 omnilex-key=us-pa-regs-official--title-234--Rule 721}

(A) Commonwealth Challenges to Sentence

(1) The Commonwealth may challenge a sentence by filing a motion to modify sentence, by filing an appeal on a preserved issue, or by filing a motion to modify sentence followed by an appeal.

(2) Sentencing issues raised by the Commonwealth at the sentencing proceeding shall be deemed preserved for appeal whether or not the Commonwealth elects to file a motion to modify sentence on those issues.

(B) Timing

(1) Motion for Modification of Sentence. A Commonwealth motion for modification of sentence shall be filed no later than 10 days after imposition of sentence.

(2) Appeal of Sentence.

(a) Appeal Directly from Order Imposing Sentence.

(i) If the defendant has filed a post-sentence motion, and the Commonwealth elects to challenge the sentence by filing an appeal directly from the order imposing sentence, notice of the Commonwealth’s appeal shall be filed within 30 days of the entry of the order disposing of the defendant’s post-sentence motion pursuant to Rule 720(B)(3).

(ii) If the defendant has not filed a post-sentence motion, the Commonwealth’s notice of appeal shall be filed within 30 days of the imposition of sentence.

(b) Appeal following Disposition of Commonwealth Motion to Modify Sentence.

(i) If the defendant has filed a post-sentence motion, the Commonwealth’s notice of appeal shall be filed within 30 days of the entry of the orders disposing of the Commonwealth’s and the defendant’s motions pursuant to paragraph (C)(1).

(ii) If the defendant has not filed a post-sentence motion, the Commonwealth’s notice of appeal shall be filed within 30 days of the entry of the order disposing of the Commonwealth’s motion pursuant to paragraph (C)(2).

(C) Trial Court Action; Disposition

If the attorney for the Commonwealth files a timely motion for modification of sentence pursuant to paragraph (A)(1), the judge shall dispose of the motion as provided in this paragraph.

(1) If the defendant has filed a post-sentence motion, the judge shall not vacate sentence but shall decide the Commonwealth’s motion and the defendant’s post-sentence motion simultaneously. The Rule 720(B)(3) time limits for deciding the defendant’s post-sentence motion, including the automatic denial provisions, shall apply to the disposition of the Commonwealth’s motion. The starting date for disposition of both motions shall be the date on which the defendant filed the post-sentence motion.

(2) If the defendant has not filed a post-sentence motion, the judge shall not vacate sentence but shall decide the Commonwealth’s motion within 120 days of the filing of the motion. If the judge fails to decide the Commonwealth’s motion within 120 days, the motion shall be deemed denied by operation of law.

(D) Entry of Order by Clerk of Courts

(1) When the Commonwealth’s motion for modification of sentence is denied by operation of law, the clerk of courts shall forthwith:

(a) enter an order on behalf of the court denying the Commonwealth’s motion for modification of sentence by operation of law; and

(b) furnish a copy of the order, by mail or personal delivery, to the attorney for the Commonwealth, the defendant, and defense counsel.

(2) An order entered by the clerk of courts pursuant to this section shall not be subject to reconsideration.

Rule 721 clarifies the procedures for Commonwealth challenges to sentences in light of the post-sentence procedures adopted in 1993. See Rule 720. This rule does not address any other type of Commonwealth challenge or Commonwealth appeals generally.

Historically, the Commonwealth has been required to raise a discretionary sentencing issue at the sentencing hearing or in a post-trial motion to modify sentence in order to preserve the issue for appellate review. See Commonwealth v. Eyster, 401 Pa. Super. 477, 585 A.2d 1027 (1991) (en banc), appeal denied 529 Pa. 646, 602 A.2d 857 (1992). Challenges to the legality of a sentence, however, are not waived if the Commonwealth fails to timely file a motion for modification. See Commonwealth v. Smith, 529 Pa. 380, 598 A.2d 268 (1991).

Under Rule 721, the Commonwealth’s motion for modification of sentence is optional, as long as any discretionary sentencing issue is properly preserved at the time sentence was imposed. Before forgoing trial court review and proceeding with a direct appeal, the attorney for the Commonwealth must therefore be sure that the record created at the sentencing proceeding is adequate for appellate review of the issue, or the issue may be waived. See Commonwealth v. Jarvis, 444 Pa. Super. 295, 663 A.2d 790 (1995), at n. 1.

As a general rule, a motion for modification of sentence gives the sentencing judge the earliest opportunity to modify the sentence. This procedure does not affect the court’s inherent powers to correct an illegal sentence or obvious and patent mistakes in its orders at any time before appeal or upon remand by the appellate court. See, e.g., Commonwealth v. Jones, 520 Pa. 385, 554 A.2d 50 (1989) (sentencing court can, sua sponte, correct an illegal sentence even after the defendant has begun serving the original sentence) and Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970) (inherent power of the court to correct obvious and patent mistakes).

Once a sentence has been modified or reimposed pursuant to a motion to modify sentence under this rule or Rule 720(B)(1)(a)(v), a party wishing to challenge the decision on the motion does not have to file an additional motion to modify sentence in order to preserve an issue for appeal, as long as the issue was properly preserved at the time the sentence was modified or reimposed.

Trial Court Action

Paragraph (C) sets forth the procedures for trial court action on the Commonwealth’s motion for modification. Key to the timing of the judge’s decision on the Commonwealth’s motion is whether the defendant files a post-sentence motion.

Rule 720 Motion Filed

Under paragraph (C)(1), if the defendant has filed a post-sentence motion, the judge is not permitted to vacate sentence and must decide the defendant’s post-sentence motion and the Commonwealth’s motion simultaneously. The date on which the defendant’s post-sentence motion is filed, see Rule 720(A)(1), triggers the time limit within which the judge must also dispose of the Commonwealth’s motion, regardless of which motion is filed first. If the judge fails to decide the Commonwealth’s motion within this time limit, the motion is deemed denied by operation of law. See Rule 720(B)(3).

Rule 720 Motion Not Filed

When the defendant has not filed a post-sentence motion, the disposition of the Commonwealth’s motion is governed by paragraph (C)(2). The judge may not vacate sentence, but has 120 days to decide the Commonwealth’s motion or the motion is deemed denied by operation of law. If the judge decides the motion within the 120-day limit and then agrees to reconsider, the reconsideration must be resolved within the original 120-day time limit. The judge may not vacate sentence in order to reconsider the motion or otherwise use the reconsideration period to extend the 120-day time limit. It follows that even if the defendant has filed a notice of appeal, the procedural exceptions provided in Pa.R.A.P. 1701(b)(3) do not apply to challenges to sentences.

See also the Rule 720 Comment under ‘‘Disposition.’’

Entry of Order by Clerk of Courts

Under paragraph (D)(1), when a Commonwealth motion to modify sentence has been denied by operation of law, the clerk of courts must enter an order on behalf of the court and furnish copies to the attorney for the Commonwealth, the defendant, and defense counsel. The clerk of courts’ order is ministerial and not subject to reconsideration. See paragraph (D)(2). The clerk of courts also must comply with the filing, service, and docket entry requirements of Rule 114.

Appeal of Sentence

Paragraph (B)(2) contains the timing requirements for Commonwealth notices of appeal.

No Commonwealth Motion to Modify Sentence Filed

Paragraph (B)(2)(a) covers the time for filing a notice of appeal when the Commonwealth has elected not to file a motion to modify sentence with the trial judge. The time for filing the Commonwealth’s notice of appeal under this paragraph depends on whether the defendant has filed a post-sentence motion. When the defendant files a post-sentence motion, paragraph (B)(2)(a)(i) provides that the entry of the order disposing of the defendant’s post-sentence motion triggers the 30-day period during which the Commonwealth’s notice of appeal must be filed. If no post-sentence motion is filed, it is the imposition of sentence that triggers the Commonwealth’s 30-day appeal period. See Rule 721(B)(2)(a)(ii).

Given that a defendant has 10 days to file a post-sentence motion under Rule 720(A)(1), it is possible that the Commonwealth might file a notice of appeal under paragraph (B)(2)(a)(ii) followed by the defendant’s filing a timely post-sentence motion. When this occurs, the Commonwealth’s notice of appeal is rendered premature, because it is the entry of the order disposing of the defendant’s post-sentence motion that becomes the triggering device for the Commonwealth’s notice of appeal. In this situation, counsel for the Commonwealth should be aware that Pa.R.A.P. 905(a) addresses this problem. In response to an extensive history of appeals which were quashed because of the premature filing of the notice of appeal, the last sentence of Pa.R.A.P. 905(a) was drafted to create a legal fiction that treats a premature notice of appeal as filed after the entry of the appealable order. For a discussion of this provision, see Darlington, McKeon, Schuckers, and Brown, Pennsylvania Appellate Practice, 2d., § 905.3.

Commonwealth Motion to Modify Sentence Filed

Paragraph (B)(2)(b) covers the time for filing the notice of appeal when the Commonwealth has elected to file a motion to modify sentence with the trial judge. As in paragraph (B)(2)(a), the time for notice depends on whether the defendant files a post-sentence motion. If the defendant has filed a post-sentence motion, the disposition of the Commonwealth’s and the defendant’s motion is simultaneous. See Rule 721(C)(1). If the defendant does not file a post-sentence motion, the 30-day appeal period begins to run from the entry of the order disposing of the Commonwealth’s motion pursuant to the time limit of paragraph (C)(2).

Official Note

Rule 1411 adopted August 22, 1997, effective January 1, 1998; renumbered Rule 721 and amended March 1, 2000, effective April 1, 2001; Comment revised March 3, 2004, effective July 1, 2004; amended January 18, 2007, effective August 1, 2007.

Committee Explanatory Reports:

Final Report explaining the new rule published with the Court’s Order at 27 Pa.B. 4553 (September 6, 1997).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 3, 2004 amendments updating the cross-references correlative to the March 3, 2004 changes to the motions rules published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

Final Report explaining the January 18, 2007 amendments clarifying the time for appeal in paragraph (B)(2)(a)(ii) published with the Court’s Order at 37 Pa.B. 526 (February 3, 2007).

The provisions of this Rule 721 amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended February 2, 2007, effective August 1, 2007, 37 Pa.B. 523. Immediately preceeding text appears at serial pages (312471), (299437) to (299438) and (303705) to (303707).

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

234 Pa. Code Rule 722 [Rescinded]. {#sec-rule-722 omnilex-key=us-pa-regs-official--title-234--Rule 722}

Official Note

Rule 9017 adopted February 24, 1993, effective July 1, 1993; renumbered Rule 722 and Comment revised March 1, 2000, effective April 1, 2001; rescinded September 22, 2010, effective in 90 days, and replaced by new Rules 490(c) and 790(c).

Committee Explanatory Reports:

Report explaining the provisions of the new rule published with the Court’s Order at 23 Pa.B. 1134 (March 13, 1993).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the September 22, 2010 rescission of Rule 722 published with the Court’s Order at 40 Pa.B. 5740 (October 9, 2010).

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

234 Pa. Code Rule 771 Disposition Report to the Department of Transportation. {#sec-rule-771 omnilex-key=us-pa-regs-official--title-234--Rule 771}

(A) The clerk of courts shall report to the Pennsylvania Department of Transportation all dispositions of charges required by 75 Pa.C.S. § 6323 (relating to reports by courts). The report shall be sent by electronic transmission in the form prescribed by the Department.

(B) The clerk of courts shall sign the report on the form prescribed by the Department by means of an electronic signature as authorized by Rule 103.

(C) The clerk of courts shall print out and sign a copy of the report, which shall include the date and time of the transmission, and a certification as to the adjudication, the sentence, if any, and the final disposition. The copy shall be made part of the record.

(D) Upon the request of the defendant, the attorney for the Commonwealth, or any other government agency, the clerk of courts shall provide a certified copy of the report required by this rule.

This rule was adopted in 2014 to provide for the electronic transmission of the case information required under 75 Pa.C.S. § 6323 to the Pennsylvania Department of Transportation. The rule provides for procedures at the court of common pleas similar to those already provided under Rule 471 for the reports required to be submitted under 75 Pa.C.S. § 6322 by issuing authorities.

A clerk of courts may comply with the requirements of paragraph (C) by retaining an electronic copy of the printed and signed document together with the appropriate annotations to the docket entries that the document had been transmitted to the Pennsylvania Department of Transportation.

This rule does not address the admissibility of evidence. See the Pennsylvania Rules of Evidence and 42 Pa.C.S. § 6101 et seq. concerning the Rules of Evidence for documents.

Official Note

New Rule 771 adopted June 16, 2014, effective July 16, 2014.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 44 Pa.B. 4169 (July 5, 2014).

The provisions of this Rule 771 adopted June 16, 2014, effective July 16, 2014, 44 Pa.B. 4168.

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

234 Pa. Code Rule 790 Procedure for Obtaining Expungement in Court Cases; Expungement Order. {#sec-rule-790 omnilex-key=us-pa-regs-official--title-234--Rule 790}

(a) Petition for Expungement.

(1) Except as provided in Rule 320 (Procedure for Expungement Upon Successful Completion of ARD Program), Rule 790.2 (Procedure for Expungement of Acquittals in Court Cases; Expungement Order), and 35 P.S. § 780-119, an individual who satisfies the requirements for expungement may request expungement by filing a petition with the clerk of the courts of the judicial district in which the charges were disposed.

(2) The petition shall set forth:

(i) the petitioner’s name and any aliases that the petitioner has used, address, date of birth, and social security number;

(ii) the name and address of the judge of the court of common pleas who accepted the guilty plea or heard the case;

(iii) the name and mailing address of the affiant as shown on the complaint, if available;

(iv) the Philadelphia Municipal Court docket number or the court of common pleas docket number, whichever applies;

(v) the offense tracking number (OTN);

(vi) the date on the complaint, or the date of arrest, and, if available, the criminal justice agency that made the arrest;

(vii) the specific charges, as they appear on the charging document, to be expunged;

(viii) the disposition and, if the sentence includes a fine, costs, or restitution, whether the amount due has been paid;

(ix) the reason(s) for expungement; and

(x) a verification by the petitioner that facts set forth in the petition are true and correct to the best of the petitioner’s personal knowledge or information and belief. The verification may be by a sworn affidavit or by an unsworn written statement that the facts are verified subject to the penalties for unsworn falsification to authorities under the Crimes Code § 4904, 18 Pa.C.S. § 4904.

Additional information shall not be required by local rule or practice.

(3) Unless the attorney for the Commonwealth agrees to waive this requirement, a current copy of the petitioner’s Pennsylvania State Police criminal history report shall be attached to the petition. The copy shall be obtained from the Pennsylvania State Police within 60 days before filing the petition. Absent a waiver by the attorney for the Commonwealth, the judge shall not rule upon the petition until the Pennsylvania State Police criminal history report is filed.

(4) A copy of the petition shall be served on the attorney for the Commonwealth concurrently with filing.

(b) Objections; Hearing.

(1) Within 60 days after service of the petition, the attorney for the Commonwealth shall file a consent or objection to the petition or take no action. The attorney for the Commonwealth’s consent or objection shall be filed with the clerk of courts, and copies shall be served on the petitioner’s attorney, or the petitioner if unrepresented.

(2) Upon receipt of the attorney for the Commonwealth’s response, or no later than 14 days after the expiration of the 60-day period in subdivision (b)(1), the judge shall grant or deny the petition or shall schedule a hearing.

(3) At the hearing, if any, the parties shall be afforded an opportunity to be heard. Following the hearing, the judge promptly shall enter an order granting or denying the petition.

(4) If the judge grants the petition for expungement, the judge shall enter an order directing expungement.

(i) The order shall contain the information required in subdivision (c).

(ii) Except when the attorney for the Commonwealth has filed a consent to the petition pursuant to subdivision (b)(1), the order shall be stayed for 30 days pending an appeal. If a timely notice of appeal is filed, the expungement order is stayed pending the disposition of the appeal and further order of court.

(5) If the judge denies the petition for expungement, the judge shall enter an order denying the petition and stating the reasons for the denial.

(c) Order.

(1) Every order for expungement shall include:

(i) the petitioner’s name and any aliases that the petitioner has used, address, date of birth, and social security number;

(ii) the name and address of the judge of the court of common pleas who accepted the guilty plea or heard the case;

(iii) the name and mailing address of the affiant as shown on the complaint, if available;

(iv) the Philadelphia Municipal Court docket number or the court of common pleas docket number, whichever applies;

(v) the offense tracking number (OTN);

(vi) the date on the complaint, or the date of arrest, and, if available, the criminal justice agency that made the arrest;

(vii) the specific charges, as they appear on the charging document, to be expunged;

(viii) the disposition and, if the sentence includes a fine, costs, or restitution, whether the amount due has been paid;

(ix) the reason(s) for expungement; and

(x) the criminal justice agencies upon which certified copies of the order shall be served.

Additional information shall not be required by local rule or practice.

(2) The clerk of courts shall serve a certified copy of the order to each criminal justice agency identified in the court’s order and to all other entities required to be notified by statute.

This rule, adopted in 2010, provides the procedures for requesting and ordering expungement in court cases. Any case in which a summary offense is filed with a misdemeanor, felony, or murder of the first, second, or third degree is a court case (see Rule 103). The petition for expungement of the summary offense in such a case would proceed under this rule.

See also Rule 320 (Procedure for Expungement Upon Successful Completion of ARD Program); Rule 490 (Procedure for Obtaining Expungement in Summary Cases; Expungement Order); Rule 791 (Procedure for Obtaining Order for Limited Access in Court Cases; Order for Limited Access); 35 P.S. § 780-119 for expungement procedures under the Controlled Substance, Drug, Device, and Cosmetic Act; and for expungement procedures in cases satisfying the requirements of 18 Pa.C.S. § 9122(a)(4) regarding complete acquittals, see Rule 490.2 (Procedure for Expungement of Acquittals in Summary Cases; Expungement Order) and Rule 790.2 (Procedure for Expungement of Acquittals in Court Cases; Expungement Order).

This rule sets forth the only information that must be included in every expungement petition and order.

Subdivision (a)(3) requires the petitioner to attach a copy of his or her criminal history report to the petition. The attorney for the Commonwealth may waive the requirement that the criminal history report be attached to the petition. The Commonwealth’s agreement to the waiver may be made orally or in writing, or averred in the petition.

An order for expungement under the Controlled Substance, Drug, Device, and Cosmetic Act, 35 P.S. § 780-119, also must include the information in subdivision (c).

A form petition and form order of expungement has been created by the Administrative Office of Pennsylvania Courts, in consultation with the Committee, and is available at the following website: http://www.pacourts.us/forms/for-the-public.

‘‘Petition,’’ as used in this rule, is a ‘‘motion’’ for purposes of Rules 575, 576, and 577.

The ‘‘reason for expungement’’ in subdivisions (a)(2)(ix) and (c)(1)(ix) means, for example, acquittal or age.

For the procedures for filing and service of petitions, see Rule 576.

For the procedures for filing and service of orders, see Rule 114.

When a summons instead of an arrest warrant is issued pursuant to Rule 519, the date of the summons constitutes the ‘‘date of arrest’’ for purposes of subdivision (a)(2)(vi).

Subdivision (c)(2) requires the clerk of courts to serve each criminal justice agency identified in the court’s order as well as all other entities required to be notified by statute. See, e.g., 18 Pa.C.S. § 9122(a)(3) (requiring the court to order the expungement of all administrative records of the Department of Transportation relating to a conviction pursuant to 18 Pa.C.S. § 6308 when that conviction is ordered to be expunged).

For purposes of this rule, ‘‘criminal justice agency’’ includes police departments, county detectives, and other law enforcement agencies. See also 18 Pa.C.S. § 9102.

Concerning standing, see In Re Administrative Order No. 1-MD-2003, 936 A.2d 1 (Pa. 2007); Commonwealth v. J.H., 759 A.2d 1269 (Pa. 2000).

The provisions of this Rule 790 amended November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384774) to (384777).

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

234 Pa. Code Rule 790.2 Procedure for Expungement of Acquittals in Court Cases; Expungement Order. {#sec-rule-790.2 omnilex-key=us-pa-regs-official--title-234--Rule 790.2}

(a) Notice of Acquittal.

(1) In any court case in which the defendant has been acquitted of all charges as provided in 18 Pa.C.S. § 9122(a)(4), within 10 days of the entry of the acquittal, the clerk of courts of the judicial district in which the charges were disposed or, if the charges were disposed of in the Philadelphia Municipal Court, the clerk of Municipal Court shall notify the defendant, defense counsel, if any, and the attorney for the Commonwealth that the case shall be ordered expunged, unless an objection is filed by the attorney for the Commonwealth.

(2) Thereafter, the case shall proceed as provided in subdivision (b) and (c) of this rule.

(3) The notice issued by the clerk of courts or by the clerk of Municipal Court under subdivision (a)(1) shall set forth:

(i) the defendant’s name and any aliases that the defendant has used, address, date of birth, and social security number;

(ii) the name and address of the judge of the court of common pleas or of the Philadelphia Municipal Court, whichever applies, who heard the case;

(iii) the name and mailing address of the affiant as shown on the complaint or citation, if available;

(iv) the Philadelphia Municipal Court docket number or the court of common pleas docket number, whichever applies;

(v) the offense tracking number (OTN);

(vi) the date on the citation or complaint, or the date of arrest, and, if available, the criminal justice agency that made the arrest;

(vii) the specific charges, as they appear on the charging document, to be expunged; and

(viii) a statement that all the charges resulted in a not guilty finding.

Additional information shall not be required by local rule or practice.

(b) Objections; Hearing.

(1) Within 60 days after service of the notice, the attorney for the Commonwealth shall file a consent or objection to the expungement or take no action. The attorney for the Commonwealth’s consent or objection shall be filed in the court of common pleas or the Philadelphia Municipal Court, whichever applies, and copies shall be served on the defendant and defense counsel, if any.

(2) Upon receipt of the attorney for the Commonwealth’s response, or no later than 14 days after the expiration of the 60-day period in subdivision (b)(1), the court of common pleas or the Philadelphia Municipal Court, whichever applies, shall grant the expungement or, when an objection is filed, shall schedule a hearing unless waived by the parties and the court.

(3) At the hearing, if any, the defendant and the attorney for the Commonwealth shall be afforded an opportunity to be heard. Following the hearing, the judge promptly shall enter an order granting or denying the expungement.

(4) If the judge grants the expungement, the judge shall enter an order directing expungement.

(i) The order shall contain the information required in subdivision (c).

(ii) Except when the attorney for the Commonwealth has filed a consent pursuant to subdivision (b)(1), the order shall be stayed for 30 days pending an appeal. If a timely notice of appeal is filed, the expungement order is stayed pending the disposition of the appeal and further order of court.

(5) If the judge denies the expungement, the judge shall enter an order denying the expungement and stating the reasons for the denial.

(6) The judge shall issue the order granting or denying the expungement in writing, with copies to the defendant, defense counsel, if any, and the attorney for the Commonwealth, and shall make the order a part of the docket.

(c) Order.

(1) Every order for expungement shall include:

(i) the defendant’s name and any aliases that the defendant has used, address, date of birth, and social security number;

(ii) the name and address of the judge of the court of common pleas or of the Philadelphia Municipal Court, whichever applies, who heard the case;

(iii) the name and mailing address of the affiant as shown on the complaint or citation, if available;

(iv) the Philadelphia Municipal Court docket number or the court of common pleas docket number, whichever applies;

(v) the offense tracking number (OTN);

(vi) the date on the citation or complaint, or the date of arrest, and, if available, the criminal justice agency that made the arrest;

(vii) the specific charges, as they appear on the charging document, to be expunged;

(viii) a statement that all the charges resulted in a not guilty finding; and

(ix) the criminal justice agencies upon which certified copies of the order shall be served.

Additional information shall not be required by local rule or practice.

(2) The clerk of courts shall serve a certified copy of the order to each criminal justice agency identified in the court’s order and to all other entities required to be notified by statute.

This rule was adopted in 2023 to provide procedures for the expungement of court cases that resulted in acquittals as provided in 18 Pa.C.S. § 9122(a)(4).

For the ability of the parties, with the consent of the court, to waive a hearing pursuant to subdivision (b)(2), see 18 Pa.C.S. § 9122(a)(4)(iii).

See also Rule 320 (Procedure for Expungement Upon Successful Completion of ARD Program); Rule 490 (Procedure for Obtaining Expungement in Summary Cases; Expungement Order); Rule 790 (Procedure for Obtaining Expungement in Court Cases; Expungement Order); Rule 791 (Procedure for Obtaining Order for Limited Access in Court Cases; Order for Limited Access); 35 P.S. § 780-119 for expungement procedures under the Controlled Substance, Drug, Device, and Cosmetic Act; and for expungement procedures in summary cases satisfying the requirements of 18 Pa.C.S. § 9122(a)(4) regarding complete acquittals, see Rule 490.2 (Procedure for Expungement of Acquittals in Summary Cases; Expungement Order).

The provisions of this Rule 790.2 added June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403.

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

234 Pa. Code Rule 791 Procedure for Obtaining Order for Limited Access in Court Cases; Order for Limited Access. {#sec-rule-791 omnilex-key=us-pa-regs-official--title-234--Rule 791}

(a) Petition for Order for Limited Access.

(1) Pursuant to 18 Pa.C.S. § 9122.1, an individual who satisfies the statutory requirements for obtaining an order for limited access may request an order that limits the dissemination of his or her criminal history record information by filing a petition with the clerk of the courts of the judicial district in which the charges were disposed.

(2) The petition shall set forth:

(i) the petitioner’s name and any aliases that the petitioner has used, address, date of birth, and social security number;

(ii) the name and address of the judge of the court of common pleas, magisterial district judge, or Philadelphia Municipal Court judge who accepted the guilty plea or heard the case;

(iii) the name and mailing address of the affiant as shown on the complaint, if available;

(iv) the court of common pleas docket number, magisterial district court docket number, or the Philadelphia Municipal Court docket number, whichever applies;

(v) the offense tracking number (OTN);

(vi) the date on the complaint, or the date of arrest, and, if available, the criminal justice agency that made the arrest;

(vii) the specific charges, as they appear on the charging document, to be subject to limited access;

(viii) the disposition, whether the fee previously authorized to carry out the limited access and clean slate limited access provisions has been paid, and, if the sentence includes restitution, whether the amount due for restitution has been paid;

(ix) the reason(s) for the order for limited access;

(x) a statement that the case qualifies for a limited access order and none of the exceptions under 18 Pa.C.S. § 9122.1(b) are applicable; and

(xi) a verification by the petitioner that facts set forth in the petition are true and correct to the best of the petitioner’s personal knowledge or information and belief. The verification may be by a sworn affidavit or by an unsworn written statement that the facts are verified subject to the penalties for unsworn falsification to authorities under the Crimes Code § 4904, 18 Pa.C.S. § 4904.

Additional information shall not be required by local rule or practice.

(3) Unless the attorney for the Commonwealth agrees to waive this requirement, a current copy of the petitioner’s Pennsylvania State Police criminal history report shall be attached to the petition. The copy shall be obtained from the Pennsylvania State Police within 60 days before filing the petition. Absent a waiver by the attorney for the Commonwealth, the court shall not rule upon the petition until the Pennsylvania State Police criminal history report is filed.

(4) A copy of the petition shall be served on the attorney for the Commonwealth concurrently with filing.

(b) Objections; Hearing.

(1) Within 30 days after service of the petition, the attorney for the Commonwealth shall file a consent or objection to the petition or take no action. The attorney for the Commonwealth’s consent or objection shall be filed with the clerk of courts, and copies shall be served on the petitioner’s attorney, or the petitioner if unrepresented.

(2) Upon receipt of the attorney for the Commonwealth’s response, or no later than 14 days after the expiration of the 30-day period in subdivision (b)(1), the judge of the court of common pleas shall grant or deny the petition or shall schedule a hearing.

(3) At the hearing, if any, the parties shall be afforded an opportunity to be heard. Following the hearing, the judge promptly shall enter an order granting or denying the petition.

(4) If the judge grants the petition for limited access, the judge shall enter an order directing that the petitioner’s criminal record history information that is subject to the limited access order shall not be disseminated to an individual, a noncriminal justice agency, or an internet website and that dissemination of the petitioner’s criminal record history be limited only to a criminal justice agency or government agency as provided in 18 Pa.C.S. § 9122.1.

(i) The order shall contain the information required in subdivision (c).

(ii) Except when the attorney for the Commonwealth has filed a consent to the petition pursuant to subdivision (b)(1), the order shall be stayed for 30 days pending an appeal. If a timely notice of appeal is filed, the order for limited access is stayed pending the disposition of the appeal and further order of court.

(5) If the judge denies the petition for an order of limited access, the judge shall enter an order denying the petition and stating the reasons for the denial.

(6) If the judge grants the petition for an order of limited access, the petition and order are subject to limited access.

(c) Order.

(1) Every order for limited access shall include:

(i) the petitioner’s name and any aliases that the petitioner has used, address, date of birth, and social security number;

(ii) the name and address of the judge of the court of common pleas, magisterial district judge, or Philadelphia Municipal Court judge who accepted the guilty plea or heard the case;

(iii) the name and mailing address of the affiant as shown on the complaint, if available;

(iv) the court of common pleas docket number, magisterial district court docket number, or the Philadelphia Municipal Court docket number, whichever applies;

(v) the offense tracking number (OTN);

(vi) the date on the complaint, or the date of arrest, and, if available, the criminal justice agency that made the arrest;

(vii) the specific charges, as they appear on the charging document, to be subject to limited access;

(viii) the disposition, whether the fee previously authorized to carry out the limited access and clean slate limited access provisions has been paid, and, if the sentence includes restitution, whether the amount due for restitution has been paid;

(ix) the reason(s) for the order for limited access;

(x) a statement that the case qualifies for a limited access order and none of the exceptions under 18 Pa.C.S. § 9122.1(b) are applicable; and

(xi) the criminal justice agencies upon which certified copies of the order shall be served.

Additional information shall not be required by local rule or practice.

(2) The clerk of courts shall serve a certified copy of the order to each criminal justice agency identified in the court’s order and to all other entities required to be notified by statute.

Section 9122.1 of the Criminal Code provides for an order limiting dissemination of a record of a criminal conviction for a misdemeanor of the second degree, a misdemeanor of the third degree, or an ungraded misdemeanor which carries a maximum penalty of no more than two years only to a criminal justice agency or government agency. This rule, adopted in 2016, provides the procedures for requesting and ordering an order for limited access as provided in the statute.

This rule sets forth the only information that must be included in every petition and order for limited access.

The petition must be filed with the clerk of courts of the judicial district in which the charges that are the subject of the petition were disposed. The petition must be decided by a judge of the court of common pleas, even if the charges that are the subject of the petition were disposed by a magisterial district judge or Philadelphia Municipal Court judge.

Subdivision (a)(3) requires the petitioner to attach a copy of his or her criminal history report to the petition. The attorney for the Commonwealth may waive the requirement that the criminal history report be attached to the petition. The Commonwealth’s agreement to the waiver may be made orally or in writing, or averred in the petition.

A form petition and form order for limited access has been created by the Administrative Office of Pennsylvania Courts, in consultation with the Committee, and is available at the following website: http://www.pacourts.us/forms/for-the-public.

‘‘Petition,’’ as used in this rule, is a ‘‘motion’’ for purposes of Rules 575, 576, and 577.

The ‘‘reason for the order for limited access’’ in subdivisions (a)(2)(ix) and (c)(1)(ix) means, for example, the defendant’s freedom from arrest or prosecution for 10 years.

For the procedures for filing and service of petitions, see Rule 576.

For the procedures for filing and service of orders, see Rule 114.

When a summons instead of an arrest warrant is issued pursuant to Rule 519, the date of the summons constitutes the ‘‘date of arrest’’ for purposes of subdivision (a)(2)(vi).

For purposes of this rule, ‘‘criminal justice agency’’ includes police departments, county detectives, and other law enforcement agencies. See also 18 Pa.C.S. § 9102. For the definition of ‘‘government agency,’’ see 18 Pa.C.S. § 9121(b.1) and (b.2).

Nothing in this rule is intended to alter procedures regarding expungement. See Rule 320 (Procedure for Expungement Upon Successful Completion of ARD Program); Rule 490 (Procedure for Obtaining Expungement in Summary Cases; Expungement Order); Rule 790 (Procedure for Obtaining Expungement in Court Cases; Expungement Order); 35 P.S. § 780-119 for expungement procedures under the Controlled Substance, Drug, Device, and Cosmetic Act; and for expungement procedures in cases satisfying the requirements of 18 Pa.C.S. § 9122(a)(4) regarding complete acquittals, see Rule 490.2 (Procedure for Expungement of Acquittals in Summary Cases; Expungement Order) and Rule 790.2 (Procedure for Expungement of Acquittals in Court Cases; Expungement Order).

Concerning standing, see In Re Administrative Order No. 1-MD-2003, 936 A.2d 1 (Pa. 2007); Commonwealth v. J.H., 759 A.2d 1269 (Pa. 2000).

The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

History

• Source: The provisions of this Rule 791 adopted November 9, 2016, effective November 14, 2016, 46 Pa.B. 7439; amended June 14, 2023, effective April 1, 2024, 53 Pa.B. 3403. Immediately preceding text appears at serial pages (384777) to (384780).

Chapter 8 SPECIAL RULES FOR CASES IN WHICH DEATH SENTENCE IS AUTHORIZED

234 Pa. Code Rule 800 Applicability of Part A. {#sec-rule-800 omnilex-key=us-pa-regs-official--title-234--Rule 800}

Except as provided in Rule 801, the rules in Part A shall apply to the guilt and penalty determination phases of all cases in which the imposition of a sentence of death is authorized by law.

The 1990 amendment to this rule made it clear that Part A of Chapter 8 applies to both the guilt determination and sentencing phases of cases in which the death penalty is authorized. The chapter was amended in 2013 by the addition of Part B providing special procedures for seeking to preclude imposition of a sentence of death by reason of the defendant’s mental retardation.

Except as provided in Part A, trial and retrial procedures in death penalty cases are governed by the Rules of Criminal Procedure generally.

For sentencing generally in death penalty cases, see the Sentencing Code, 42 Pa.C.S. § 9711.

The sentencing procedures in Part A and in the Sentencing Code also apply when the trial court orders a new sentencing proceeding, or when the Supreme Court vacates a sentence of death and remands a case for redetermination of sentence pursuant to 42 Pa.C.S. § 9711(h)(4).

When a jury is empaneled for the first time for sentencing, or for resentencing, the jury trial rules (Chapter 6) apply. See, for example, Rule 631 (Examination and Challenges of Trial Jurors).

Part A does not provide procedures for those cases in which the Supreme Court vacates a sentence of death and remands the case to the trial court for the imposition of a life imprisonment sentence. See 42 Pa.C.S. § 9711(h)(4).

For post-verdict procedures in cases in which a sentence of death is authorized by law, see Rule 811.

Official Note

Previous Rule 351 adopted September 22, 1976, effective November 1, 1976; rescinded April 2, 1978, effective immediately. Present Rule 351 adopted July 1, 1985, effective August 1, 1985; Comment revised February 1, 1989, effective July 1, 1989; amended October 29, 1990, effective January 1, 1991; renumbered Rule 800 and amended March 1, 2000, effective April 1, 2001; amended October 1, 2012, effective November 1, 2012; amended July 31, 2013, effective October 1, 2013.

Committee Explanatory Reports:

Report explaining the October 29, 1990 amendments published at 20 Pa.B. 5736 (November 17, 1990).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the October 1, 2012 amendments clarifying the application of the Chapter to Rule 801 published with the Court’s Order at 42 Pa.B. 6635 (October 20, 2012).

Final Report explaining the July 31, 2013 adoption of the new rules establishing the procedures for challenging the defendant’s competency to be executed published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).

The provisions of this Rule 800 amended October 1, 2012, effective November 1, 2012, 42 Pa.B. 6635; amended July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715. Immediately preceding text appears at serial pages (364125) to (364126).

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 801 Qualifications for Defense Counsel in Capital Cases. {#sec-rule-801 omnilex-key=us-pa-regs-official--title-234--Rule 801}

In all cases in which the attorney for the Commonwealth has filed a Notice of Aggravating Circumstances pursuant to Rule 802, before an attorney may participate in any stage of the case either as retained or appointed counsel, the attorney must meet the educational and experiential criteria set forth in this rule.

(1) EXPERIENCE: Counsel shall

(a) be a member in good standing of the Bar of this Commonwealth;

(b) be an active trial practitioner with a minimum of 5 years criminal litigation experience; and

(c) have served as lead or co-counsel in a minimum of 8 significant cases that were given to the jury for deliberations. If representation is to be only in an appellate court, prior appellate or post-conviction representation in a minimum of 8 significant cases shall satisfy this requirement. A ‘‘significant case’’ for purposes of this rule is one that charges murder, manslaughter, vehicular homicide, or a felony for which the maximum penalty is 10 or more years.

(2) EDUCATION:

(a) During the 3-year period immediately preceding the appointment or entry of appearance, counsel shall have completed a minimum of 18 hours of training relevant to representation in capital cases, as approved by the Pennsylvania Continuing Legal Education Board.

(b) Training in capital cases shall include, but not be limited to, training in the following areas:

(i) relevant state, federal, and international law;

(ii) pleading and motion practice;

(iii) pretrial investigation, preparation, strategy, and theory regarding guilt and penalty phases;

(iv) jury selection;

(v) trial preparation and presentation;

(vi) presentation and rebuttal of relevant scientific, forensic, biological, and mental health evidence and experts;

(vii) ethical considerations particular to capital defense representation;

(viii) preservation of the record and issues for post-conviction review;

(ix) post-conviction litigation in state and federal courts;

(x) unique issues relating to those charged with capital offenses when under the age of 18; and

(xi) counsel’s relationship with the client and family.

(c) The Pennsylvania Continuing Legal Education Board shall maintain and make available a list of attorneys who satisfy the educational requirements set forth in this rule.

The purpose of this rule is to provide minimum uniform statewide standards for the experience and education of appointed and retained counsel in capital cases, to thus ensure such counsel possess the ability, knowledge, and experience to provide representation in the most competent and professional manner possible. These requirements apply to counsel at all stages of a capital case, including pretrial, trial, post-conviction, and appellate.

The educational and experience requirements of the rule may not be waived by the trial or appellate court. A court may allow representation by an out-of-state attorney pro hac vice, if satisfied the attorney has equivalent experience and educational qualifications, and is a member in good standing of the Bar of the attorney’s home jurisdiction. See Pa.B.A.R. 301.

For purposes of the requirements of paragraph (1), experience in the role of either prosecutor or defense counsel should be considered.

An attorney may serve as ‘‘second chair’’ in a capital case without meeting the educational or experience requirements of this rule. ‘‘Second chair’’ attorneys may not have primary responsibility for the presentation of significant evidence or argument, but may present minor or perfunctory evidence or argument, if deemed appropriate in the discretion of the court. Service as a ‘‘second chair’’ in a homicide case will count as a trial for purposes of evaluating that attorney’s experience under paragraph (1)(c) of this rule.

Paragraph (1)(c) was amended in 2007 to clarify that (1) cases that are tried to a verdict or that end with a mistrial after the case is given to the jury for deliberations satisfy the requirements of the rule, and (2) all cases charging felonies for which the term of imprisonment is 10 or more years will count as ‘‘significant cases,’’ see, e.g., Crimes Code, 18 Pa.C.S. § 106(b), and 35 P. S. § 780-113(f)(1).

The CLE Board may approve entire courses focusing on capital litigation, or individual portions of other courses dealing with general areas relevant to capital cases (such as trial advocacy). It is expected that counsel will attend training programs encompassing the full range of issues confronting the capital litigator from the investigative and pretrial stages through appellate and post-conviction litigation in the state and federal courts.

Determination of experience will be accomplished by the appointing or admitting court, by colloquy or otherwise.

For the entry of appearance and withdrawal of counsel requirements generally, see Rule 120.

For the appointment of trial counsel, see Rule 122.

For the entry of appearance and appointment of counsel in post-conviction collateral proceedings, see Rule 904.

Official Note

Adopted June 4, 2004, effective November 1, 2004; amended April 13, 2007, effective immediately; amended October 1, 2012, effective November 1, 2012; amended December 10, 2013, effective February 10, 2014; amended January 11, 2016, effective April 1, 2016.

Committee Explanatory Reports:

Final Report explaining the April 13, 2007 changes to paragraph (1)(c) published with the Court’s Order at 37 Pa.B. 1961 (April 28, 2007).

Final Report explaining the October 1, 2012 changes to the first paragraph published with the Court’s Order at 42 Pa.B. 6635 (October 20, 2012).

Final Report explaining the December 10, 2013 change to the Comment published with the Court’s Order at 43 Pa.B. 7546 (December 28, 2013).

Final Report explaining the January 11, 2016 amendments correcting a reference to the prosecutor and clarifying the experiential requirements of the rule published with the Court’s Order at 46 Pa.B. 555 (January 30, 2016).

The provisions of this Rule 801 adopted June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105. From June 4, 2004, until November 1, 2004, the educational requirements in Rule 801 shall be phased in as follows: (1) from the date of this Order until the November 1, 2004 effective date, the appointing or admitting court shall determine that the attorney has attended at least 6 hours of courses relevant to representation in capital cases, using the new Rule 801 educational criteria as a guide for relevance; (2) by November 1, 2004, to be eligible for appointment or to enter an appearance pursuant to new Rule 801, an attorney shall have completed a minimum of 6 hours of training relevant to representation in capital cases, as approved by the Continuing Legal Education Board, (3) by November 1, 2005, to be eligible for appointment or to enter an appearance pursuant to new Rule 801, an attorney shall have completed a mimimum of 12 hours of training relevant to representation in capital cases, as approved by the Continuing Legal Education Board; and (4) by May 1, 2006, to be eligible for appointment or to enter an appearance pursuant to new Rule 801, an attorney shall have completed a minimum of 18 hours of training relevant to representation in capital cases, as approved by the Continuing Legal Education Board; amended April 13, 2007, effective immediately, 37 Pa.B. 1960; amended October 1, 2012, effective November 1, 2012, 42 Pa.B. 6635; amended December 10, 2013, effective February 10, 2014, 43 Pa.B. 7545; amended January 11, 2016, effective April 1, 2016, 46 Pa.B. 554. Immediately preceding text appears at serial pages (368308) and (370053) to (370054).

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 802 Notice of Aggravating Circumstances. {#sec-rule-802 omnilex-key=us-pa-regs-official--title-234--Rule 802}

The attorney for the Commonwealth shall file a Notice of Aggravating Circumstances that the Commonwealth intends to submit at the sentencing hearing and contemporaneously provide the defendant with a copy of such Notice of Aggravating Circumstances. Notice shall be filed at or before the time of arraignment, unless the attorney for the Commonwealth becomes aware of the existence of an aggravating circumstance after arraignment or the time for filing is extended by the court for cause shown.

This rule provides for pretrial disclosure of those aggravating circumstances that the Commonwealth intends to prove at the sentencing hearing. See Sentencing Code, 42 Pa.C.S. § 9711(d). It is intended to give the defendant sufficient time and information to prepare for the sentencing hearing. Although the rule requires that notice generally be given no later than the time of arraignment, it authorizes prompt notice thereafter when a circumstance becomes known to the attorney for the Commonwealth at a later time. The language ‘‘for cause shown’’ contemplates, for example, a situation in which, at the time of arraignment, an ongoing investigation of an aggravating circumstance must be completed before the attorney for the Commonwealth can know whether the evidence is sufficient to warrant submitting the circumstance at the sentencing hearing.

The 1995 amendment requires the Commonwealth to file the Notice of Aggravating Circumstances.

For purposes of this rule, the notice requirement is satisfied if the copy of the notice to the defendant sets forth the existing aggravating circumstances substantially in the language of the statute. See 42 Pa.C.S. § 9711(d) The extent of disclosure of underlying evidence is governed by Rule 573.

See Rule 571 concerning arraignment procedures.

If the trial court orders a new sentencing hearing, or the Supreme Court remands a case for a redetermination of penalty pursuant to 42 Pa.C.S. § 9711(h)(4), the attorney for the Commonwealth may not introduce any new aggravating circumstance except when there has been an intervening conviction for an offense committed prior to the present conviction which would constitute an aggravating circumstance. The trial judge must set the time within which the attorney for the Commonwealth must notify the defendant of such an additional circumstance, and the time set for notice must allow the defendant adequate time to prepare for the new sentencing hearing. No additional notice is required for those aggravating circumstances previously offered and not struck down upon review.

Official Note

Previous Rule 352 adopted July 1, 1985, effective August 1, 1985; renumbered Rule 353 February 1, 1989, effective July 1, 1989. Present Rule 352 adopted February 1, 1989, effective as to cases in which the arraignment is held on or after July 1, 1989; Comment revised October 29, 1990, effective January 1, 1991; amended January 10, 1995, effective February 1, 1995; renumbered Rule 801 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; renumbered Rule 802 June 4, 2004, effective November 1, 2004.

Committee Explanatory Reports:

Report explaining the October 29, 1990 Comment revision published at 20 Pa.B. 5736 (November 17, 1990).

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 May 10, 2002 amendments published with the Court’s Order at 32 Pa.B. 2591 (May 25, 2002).

The provisions of this Rule 801 amended May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105. Immediately preceding text appears at serial pages (289114) to (289115).

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 803 Guilty Plea Procedure. {#sec-rule-803 omnilex-key=us-pa-regs-official--title-234--Rule 803}

(A) When a defendant charged with murder enters a plea of guilty to a charge of murder generally, the degree of guilt shall be determined by a jury unless the attorney for the Commonwealth elects to have the judge, before whom the plea is entered, alone determine the degree of guilt.

(B) If the crime is determined to be murder of the first degree the sentencing proceeding shall be conducted as provided by law.

For the procedure for the entry of guilty pleas, see Rule 590. For the sentencing procedure if the crime is determined to be murder of the first degree, see Sentencing Code, 42 Pa.C.S. § 9711(b).

The 2008 amendment to paragraph (A) recognizes the Commonwealth’s right to have a jury determine the degree of guilt following a plea of guilty to murder generally. See Article I, § 6 of the Pennsylvania Constitution that provides that ‘‘the Commonwealth shall have the same right to trial by jury as does the accused.’’ See also Commonwealth v. White, 589 Pa. 642, 910 A.2d 648 (2006).

Official Note

Original Rule 352 adopted September 22, 1976, effective November 1, 1976; amended May 26, 1977, effective July 1, 1977; rescinded April 2, 1978, effective immediately. Former Rule 352 adopted July 1, 1985, effective August 1, 1985; renumbered Rule 353 February 1, 1989, effective July 1, 1989; renumbered Rule 802 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 803 June 4, 2004, effective November 1, 2004; amended September 18, 2008, effective November 1, 2008.

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 September 18, 2008 amendments to paragraph (A) concerning juries determining degree of guilt published with the Court’s Order at 38 Pa.B. 5431 (October 4, 2008).

The provisions of this Rule 803 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105; amended September 18, 2008, effective November 1, 2008, 38 Pa.B. 5429. Immediately preceeding text appears at serial page (349161).

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 804 Procedure When Jury Trial is Waived. {#sec-rule-804 omnilex-key=us-pa-regs-official--title-234--Rule 804}

(A) In all cases in which the defendant is charged with murder, the defendant and the attorney for the Commonwealth may waive a jury trial with approval by a judge of the court in which the case is pending In these cases, the trial judge shall alone hear the evidence, determine all questions of law and fact, and render a verdict that shall have the same force and effect as a verdict of a jury.

(B) If the crime is determined to be murder of the first degree the sentencing proceeding shall be conducted as provided by law.

For the procedure for waiver of jury trial, see Rules 620 and 621. For the sentencing procedure if the crime is determined to be murder of the first degree, see Sentencing Code, 42 Pa.C.S. § 9711(b).

Official Note

Original Rule 353 adopted September 22, 1976, effective March 1, 1977, effective date extended to April 1, 1977; amended May 26, 1977, effective July 1, 1977; rescinded April 2, 1978, effective immediately. Former Rule 353 adopted July 1, 1985, effective August 1, 1985, renumbered Rule 354 February 1, 1989, effective July 1, 1989; renumbered Rule 803 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 804 June 4, 2004, effective November 1, 2004; amended September 18, 2008, effective November 1, 2008.

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 September 18, 2008 amendments to paragraph (A) concerning waiver of a jury trial published with the Court’s Order at 38 Pa.B. 5431 (October 4, 2008).

The provisions of this Rule 804 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105; amended September 18, 2008, effective November 1, 2008, 38 Pa.B. 5429. Immediately preceeding text appears at serial pages (349161) to (349162).

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 805 No Sealed Verdict. {#sec-rule-805 omnilex-key=us-pa-regs-official--title-234--Rule 805}

No sealed verdict shall be permitted under this chapter.

Official Note

Original Rule 354 adopted September 22, 1976, effective November 1, 1976; rescinded April 2, 1978, effective immediately. Former Rule 354 adopted July 1, 1985, effective August 1, 1985; renumbered Rule 355 February 1, 1989, effective July 1, 1989; renumbered Rule 804 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 805 June 4, 2004, effective November 1, 2004.

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).

The provisions of this Rule 805 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105. Immediately preceeding text appears at serial pages (289115) to (289116).

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 806 Closing Arguments at Sentencing Hearing. {#sec-rule-806 omnilex-key=us-pa-regs-official--title-234--Rule 806}

After the presentation of evidence at the sentencing hearing, each party shall be entitled to present one closing argument for or against the sentence of death. The defendant’s argument shall be made last.

See Sentencing Code, 42 Pa.C.S. § 9711(a)(3).

Official Note

Rule 356 adopted February 1, 1989, effective July 1, 1989; renumbered Rule 805 and Comment revised March 1, 2000, effective April 1, 2001; renumbered Rule 806 June 4, 2004, effective November 1, 2004.

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).

The provisions of this Rule 806 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105. Immediately preceeding text appears at serial page (289116).

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 807 Sentencing Verdict Slip. {#sec-rule-807 omnilex-key=us-pa-regs-official--title-234--Rule 807}

(A) JURY

(1) Except as provided in paragraph (2), in all cases in which the sentencing proceeding is conducted before a jury, the judge shall furnish the jury with a jury sentencing verdict slip in the form provided by Rule 808.

(2) In cases in which the jury is to determine if imposition of a sentence of death is precluded due to the defendant’s mental retardation, the judge shall furnish the jury with the sentencing verdict slip in the form required by Rule 845. If the jury subsequently does not find unanimously that the defendant is mentally retarded, the judge then shall furnish the jury with a jury sentencing verdict slip in the form provided by Rule 808.

(3) Before the jury retires to deliberate, the judge shall meet with counsel and determine those aggravating and mitigating circumstances of which there is some evidence. The judge shall then set forth those circumstances on the sentencing verdict slip using the language provided by law.

(4) The trial judge shall make the completed sentencing verdict slip part of the record.

(B) TRIAL JUDGE

(1) In all cases in which the defendant has waived a sentencing proceeding before a jury and the trial judge determines the penalty, including those in which the defendant seeks to have the imposition of a sentence of death precluded by reason of mental retardation, the trial judge shall complete a sentencing verdict slip in the form provided by Rule 809.

(2) The trial judge shall make the completed sentencing verdict slip part of the record.

The purpose of this rule is to provide statewide, uniform jury and trial judge sentencing verdict slips in death penalty cases. The jury sentencing verdict slip is not intended to replace those jury instructions required by law. See Sentencing Code, 42 Pa.C.S. § 9711(c). For the sentencing procedure under paragraph (B), see Sentencing Code, 42 Pa.C.S. § 9711(b).

Official Note

Rule 357 adopted February 1, 1989, effective July 1, 1989; renumbered Rule 806 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 807 June 4, 2004, effective November 1, 2004; amended July 31, 2013, effective October 1, 2013.

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. 1478 (March 18, 2000).

Final Report explaining the July 31, 2013 amendments regarding cases in which the defendant has introduced evidence of mental retardation published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).

The provisions of this Rule 807 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105; amended July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715. Immediately preceeding text appears at serial pages (363267) and (304133).

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 808 Form for Jury Sentencing Verdict Slip. {#sec-rule-808 omnilex-key=us-pa-regs-official--title-234--Rule 808}

CRIMINAL

FIRST DEGREE MURDERSENTENCING VERDICT SLIP

I. GENERAL INSTRUCTIONS

A. READ THROUGH THE ENTIRE VERDICT SLIP BEFORE BEGINNING DELIBERATIONS.

B. AGGRAVATING AND MITIGATING CIRCUMSTANCES PRESENTED TO THE JURY.

1. The following aggravating circumstance(s) (is) (are) submitted to the jury and must be proved by the Commonwealth beyond a reasonable doubt:

(1)

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 809 Form for Trial Judge Sentencing Verdict Slip. {#sec-rule-809 omnilex-key=us-pa-regs-official--title-234--Rule 809}

CRIMINAL

A. I,

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 810 Sentence. {#sec-rule-810 omnilex-key=us-pa-regs-official--title-234--Rule 810}

In all cases in which a verdict of guilty of murder of the first degree has been returned, once a sentence has been determined, the court may immediately impose that sentence.

Although this rule authorizes the immediate imposition of sentence, there may be circumstances in an individual case when the judge would want to delay imposition of sentence. The case should then proceed under the time limits in Rule 704(A).

When sentence is imposed immediately pursuant to this rule, the judge must still comply with the applicable requirements of Rule 704(C).

Once sentence has been imposed, the time for filing the post-sentence motion begins to run. See Rules 811 and 720.

Official Note

Previous rule, originally numbered Rule 355, adopted September 22, 1976, effective November 1, 1976; rescinded April 2, 1978, effective immediately. Former Rule 355 adopted July 1, 1985, effective August 1, 1985; amended and renumbered Rule 359 December 31, 1987, effective immediately; Comment revised October 29, 1990, effective January 1, 1991; rescinded March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994, and replaced by present Rules 810, 704, and 720. Present Rule 359 adopted March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; renumbered Rule 809 and Comment revised March 1, 2000, effective April 1, 2001; renumbered Rule 810 and Comment revised June 4, 2004, effective November 1, 2004.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).

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).

The provisions of this Rule 810 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105. Immediately preceeding text appears at serial page (264367).

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 811 Post-Sentence Motion. {#sec-rule-811 omnilex-key=us-pa-regs-official--title-234--Rule 811}

In all cases in which a sentence has been imposed, the case shall proceed pursuant to Rule 720, except that, in cases in which a death sentence has been determined and imposed, the post-sentence motion shall be decided promptly, but shall not be denied by operation of law.

This rule, Rule 810, Rule 704, and Rule 720 replace previous Rule 359.

When a sentence of death has been imposed, the sentence may be challenged initially at the trial level as part of the general post-sentence motion.

Under Rule 720, the post-sentence motion must be decided within 120 days of filing or is deemed denied by operation of law. It is intended that, as to those cases in which a life sentence has been imposed, this and all other Rule 720 time limits for disposition of the post-sentence motion apply. In cases in which a sentence of death has been imposed, however, the post-sentence motion may not be denied by operation of law if the judge fails to decide the motion within the 120-day limit. The judge must rule on the motion as promptly as the interests of justice allow.

Official Note

Rule 360 adopted March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; renumbered Rule 810 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 811 and Comment revised June 4, 2004, effective November 1, 2004.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).

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).

The provisions of this Rule 811 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105. Immediately preceeding text appears at serial page (264368).

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 840 Scope. {#sec-rule-840 omnilex-key=us-pa-regs-official--title-234--Rule 840}

The rules in Part B provide the procedure for determining if imposition of the death penalty is precluded due to the defendant’s mental retardation.

These rules are intended to apply only to cases arising within the context of the United States Supreme Court decision in Atkins v. Virginia, 536 U.S. 304 (2002), that held that the execution of a mentally retarded criminal is cruel and unusual punishment prohibited by the Eighth Amendment. Pursuant to Atkins, the Pennsylvania Supreme Court held in Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (2011), that a convicted defendant found mentally retarded is ineligible for the death penalty.

Official Note

New Rule 840 adopted July 31, 2013, effective October 1, 2013.

Committee Explanatory Reports:

Final Report explaining the July 31, 2013 adoption of the new rule published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).

The provisions of this Rule 840 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 841 Notice of Mental Retardation Precluding Imposition of Sentence of Death. {#sec-rule-841 omnilex-key=us-pa-regs-official--title-234--Rule 841}

(A) Notice of Mental Retardation Precluding Imposition of a Sentence of Death

A defendant who intends to offer evidence of mental retardation that would preclude the imposition of a sentence of death shall file with the clerk of courts not later than 90 days after arraignment, or within such other time as allowed by the court upon cause shown, a notice of the intention to offer the evidence and certification of service on the attorney for the Commonwealth.

(1) The notice and certification shall be signed by the attorney for the defendant or the defendant if unrepresented.

(2) The notice shall contain specific available information as to the nature and extent of the alleged mental retardation and the names and addresses of witnesses, expert or otherwise, whom the defendant intends to call to establish mental retardation.

(B) Notice of Expert Evidence of Mental Retardation

A defendant who intends to introduce expert evidence relating to mental retardation that would preclude imposition of a sentence of death shall file with the clerk of courts not later than 90 days after arraignment, or within such other time as allowed by the court upon cause shown, a notice of the intention to offer the expert evidence and a certification of service on the attorney for the Commonwealth.

(1) The notice and certification shall be signed by the attorney for the defendant or the defendant if unrepresented.

(2) The notice shall contain specific available information as to the nature and extent of the alleged mental retardation, and the names and addresses of the expert witness(es) whose evidence the defendant intends to introduce.

(C) Reciprocal Notice of Witnesses

Within 30 days after receipt of the defendant’s notice of mental retardation that would preclude the imposition of a sentence of death or notice of expert evidence of mental retardation or within such other time as allowed by the court upon cause shown, the attorney for the Commonwealth shall file and serve upon the defendant’s attorney, or the defendant if unrepresented, written notice of the names and addresses of all witnesses the attorney for the Commonwealth intends to call to disprove or discredit the defendant’s claim of mental retardation.

(D) If prior to or during trial a party learns of an additional witness or additional information which, if known, should have been included in the notice furnished under paragraphs (A), (B), or (C), the party shall promptly notify the other party’s attorney, or if unrepresented, the other party, of the existence and identity of such additional witness.

(E) After docketing the notice, the clerk of courts immediately shall transmit the notice to the trial judge.

This rule sets forth the notice procedures when a defendant intends to assert his or her mental retardation to preclude imposition of the death penalty pursuant to Atkins v. Virginia, 536 U.S. 304 (2002) and Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (2011). Notices filed in accordance with this rule fall within the definition of ‘‘motion’’ in Rule 575 and must comply with the provisions of Rules 575 and 576.

The requirement in paragraph (B) for a separate notice of intention to introduce expert evidence is intended to alert the Commonwealth that there will be expert evidence. See Rule 842 regarding the requirement that any expert who has examined the defendant must prepare a written report stating the subject matter, the substance of the facts relied upon, and a summary of the expert’s opinions and the grounds for each opinion.

Paragraph (E) emphasizes the requirement that the trial judge be informed of the filing of the notice at the earliest time to ensure the prompt collection of all materials relevant to the issue of the defendant’s mental retardation.

Nothing in this rule precludes the trial judge from raising the issue of the defendant’s mental retardation sua sponte.

Official Note

New Rule 841 adopted July 31, 2013, effective October 1, 2013.

Committee Explanatory Reports:

Final Report explaining the July 31, 2013 adoption of the new rule published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).

The provisions of this Rule 841 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 842 Examination of the Defendant by Mental Health Expert. {#sec-rule-842 omnilex-key=us-pa-regs-official--title-234--Rule 842}

(A) EXAMINATION OF DEFENDANT

(1) BY AGREEMENT

(a) The defendant, the defendant’s counsel, and the attorney for the Commonwealth may agree to an examination of the defendant by the mental health expert(s) designated in the agreement for the purpose of determining mental retardation that would preclude imposition of a sentence of death.

(b) The agreement shall be in writing and signed by the defendant, the defendant’s counsel, and the attorney for the Commonwealth, or made orally on the record.

(c) Unless otherwise agreed, the mental health expert(s) promptly shall prepare a written report stating the subject matter, the substance of the facts relied upon, and a summary of the expert’s opinions and the grounds for each opinion.

(2) BY COURT ORDER

(a) If the defendant has provided notice of mental retardation that would preclude the imposition of a sentence of death or notice of intention to introduce expert evidence relating to mental retardation that would preclude imposition of a sentence of death, upon motion of the attorney for the Commonwealth, the court shall order that the defendant submit to an examination by one or more mental health experts specified in the motion by the Commonwealth for the purpose of determining the condition of mental retardation put in issue by the defendant.

(b) When the court orders an examination pursuant to this paragraph, the court on the record shall advise the defendant in person and in the presence of the defendant’s counsel:

(i) of the purpose of the examination and the contents of the court’s order;

(ii) that the information obtained from the examination may be used at trial; and

(iii) the potential consequences of the defendant’s refusal to cooperate with the Commonwealth’s mental health expert(s).

(c) The court’s order shall:

(i) specify who may be present at the examination; and

(ii) specify the time within which the mental health expert(s) must submit the written report of the examination.

(d) Upon completion of the examination of the defendant, the mental health expert(s), within the time specified by the court as provided in paragraph (A)(2)(c)(ii), shall prepare a written report stating the subject matter, the substance of the facts relied upon, and a summary of the expert’s opinions and the grounds for each opinion.

(B) DISCLOSURE OF REPORTS BETWEEN PARTIES

(1) The mental health experts’ reports shall be confidential, and not of public record.

(2) Any mental health expert whom either party intends to call to testify concerning the defendant’s condition of mental retardation must prepare a written report. No mental health expert may be called to testify concerning the defendant’s condition of mental retardation until the expert’s report has been disclosed as provided herein.

(3) The court shall set a reasonable time after the Commonwealth’s expert’s examination for the disclosure of the reports of the parties’ mental health experts.

(C) PROTECTIVE ORDERS

Upon a sufficient showing, the court may at any time order that the disclosure of a report or reports be restricted or deferred for a specified time, or make such other order as is appropriate. Upon motion of any party, the court may permit the showing to be made in camera.

(D) SANCTIONS FOR NON-COMPLIANCE

At any time during the course of the proceedings, if the court determines there has been a failure to comply with this rule, upon motion or sua sponte, the court may order compliance, may grant a continuance, or may grant other appropriate relief. Upon motion, any hearing to determine if there has been a failure to comply may be held in camera and the record sealed until after disposition of the case.

This rule establishes the procedures for the examination of the defendant by a mental health expert(s) retained by the prosecution pursuant to an agreement by the parties, see paragraph (A)(1), or a court order, see paragraph (A)(2), in cases in which the defendant’s mental retardation has been raised to preclude the imposition of a sentence of death.

‘‘Mental health expert,’’ as used in this rule, includes a psychiatrist, a licensed psychologist, a physician, or any other expert in the field of mental health who will be of substantial value in the determination of the issues raised by the defendant concerning his or her mental retardation.

Examination of Defendant

Paragraph (A)(1) is intended to encourage the defendant, the defendant’s counsel, and the attorney for the Commonwealth to agree to an examination of the defendant by the Commonwealth’s mental health expert(s).

When the defendant, the defendant’s attorney, and the attorney for the Commonwealth agree that the defendant will be examined under this rule, at a minimum, the agreement should specify the time, place, and conditions of the examination, who may be present during the examination, and the time within which the parties will disclose the reports of their experts.

It is intended that the examining mental health expert(s), whether appointed pursuant to the agreement of the parties or order of court, have substantial discretion in how to conduct an examination. The conduct of the examination, however, must conform to generally recognized and accepted practices in that profession. Therefore, the examination of the defendant may consist of such interviewing, clinical evaluation, and psychological testing as the examining mental health expert(s) considers appropriate, within the limits of non-experimental, generally accepted medical, psychiatric, or psychological practices.

Nothing in this rule is intended to limit the number of examining experts the defense may use, nor is it to be construed as a limitation on any party with regard to the number of other expert or lay witnesses they may call to testify concerning the defendant’s mental retardation.

The court is required in paragraph (A)(2)(b) to inform the defendant, in person on the record, about the request for a compelled examination. See Rule 119 (Use of Two-Way Simultaneous Audio-Visual Communication in Criminal Proceedings). The court is to explain that the examination is being conducted at the request of the attorney for the Commonwealth and that the purpose of the examination is to obtain information about the defendant’s mental condition specifically with regard to mental retardation. In addition, the court should explain the procedures for the examination that are included in the court’s order as set forth in paragraph (A)(2)(b), and explain the potential consequences of the defendant’s failure to cooperate with the examination.

Paragraph (A)(2)(d) requires that the examining mental health expert(s) promptly prepare a written report and sets forth the minimum contents of that report. It is intended that the scope of the mental health expert’s report be limited in the court’s order to matters related to the defendant’s mental retardation.

Disclosure of Reports

After the examination of the defendant by the Commonwealth’s mental health expert(s) is completed and the mental health expert’s report has been prepared, the defendant and the Commonwealth are required in paragraph (B) to disclose the reports that are made by any experts either party intends to call to testify concerning the defendant’s mental retardation. The reports must be in writing, and should comply with the content requirements in paragraph (A)(2)(d). An expert witness, whether or not the expert witness has examined the defendant, cannot testify until the report is disclosed as provided in paragraph (B)(2) and (3). There may be situations in which the court would have to call a short recess to permit the expert to complete a written report and to give the parties an opportunity to review the report, such as when a mental health expert(s) is observing the defendant during the trial and will be called to testify on these observations.

When the parties agree to the examination, the time for the disclosure of the reports should be set by the agreement of the parties. The agreement should permit adequate time to review the reports and prepare for the proceeding. If the parties cannot agree, in cases proceeding pursuant to court order under paragraph (A)(2), the court should set the time for the disclosure of reports, which should afford the parties adequate time to review the reports and prepare for the proceeding.

Establishing a reasonable time frame and providing for the reciprocal disclosure are intended to further promote the fair handling of these cases. In no case should the disclosure occur until after the defendant has been examined by the Commonwealth’s mental health expert(s) and the mental health expert(s) has prepared and submitted a written report.

There may be cases in which, although proceeding pursuant to a court order, the parties, with the court’s approval, agree to an earlier time for disclosure consistent with the purposes of this rule. This rule would not preclude such an agreement.

The procedures in paragraph (C) are similar to the existing procedures for protective orders in Rule 573(F).

Because the question of whether the imposition of a sentence of death is precluded due to the defendant’s mental retardation ordinarily is a question reserved for sentencing, use of information obtained from the examination of a defendant by a Commonwealth’s expert is not to be disclosed or used until after the defendant has been found guilty. This may require that the Commonwealth’s examination should be sealed until the penalty phase of the defendant’s trial takes place. See Commonwealth v. Sartin, 561 Pa. 522, 751 A.2d 1140 (2000). However, where the parties have agreed to a pretrial determination of the issue pursuant to Rule 843, earlier disclosure may be required.

See the Pennsylvania Rules of Evidence concerning the admissibility of the experts’ reports and information from any examinations of the defendant by an expert.

Sanctions

The sanctions authorized by paragraph (D) may be imposed on any person who has failed to comply with any of the provisions of this rule, including the attorney for the Commonwealth, the defendant, the defendant’s counsel, or an expert.

When the defendant has refused to cooperate in the examination by the Commonwealth’s mental health expert(s), before imposing a sanction, the court should consider whether the defendant’s failure to cooperate (1) was intentional, (2) was the result of the defendant’s mental condition, and (3) will have an adverse and unfair impact on the Commonwealth’s ability to respond to the defendant’s claim. The court also should consider whether ordering the defendant to resubmit to the examination would result in the defendant’s cooperation.

Official Note

New Rule 842 adopted July 31, 2013, effective October 1, 2013.

Committee Explanatory Reports:

Final Report explaining the July 31, 2013 adoption of the new rule published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).

The provisions of this Rule 842 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 843 Optional Pretrial Hearing. {#sec-rule-843 omnilex-key=us-pa-regs-official--title-234--Rule 843}

(A) If the parties agree, the issue of the defendant’s mental retardation precluding imposition of a sentence of death shall be determined by the judge after a pretrial evidentiary hearing.

(B) The defendant shall appear in person with counsel at the hearing.

(C) The defendant shall have the burden of going forward with the evidence.

(D) No later than the beginning of the evidentiary hearing, the judge shall advise the defendant that, by agreeing to have the issue of his or her mental retardation decided pretrial, the defendant, if found not mentally retarded and later convicted, will not be permitted to seek a preclusion of the imposition of a sentence of death due to mental retardation with a jury. In these cases, however, the defendant may introduce relevant evidence concerning his or her mental state at the guilt phase and the penalty phase, including evidence in support of statutory mitigation.

(E) The attorney for the Commonwealth and the defendant’s attorney may introduce evidence and cross-examine any witness, including the examining mental health experts. The judge may call and interrogate witnesses as provided by law.

(F) Within 30 days of the completion of the evidentiary hearing, the judge shall enter an order finding either that the defendant is mentally retarded and therefore is precluded from receiving a sentence of death or that the defendant is not mentally retarded.

In Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (2011), the Pennsylvania Supreme Court held that, pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), the parties may agree to a pretrial determination of the defendant’s ineligibility for the death penalty to be made by the trial judge. The defendant has the burden of proof by a preponderance of the evidence to prove mental retardation. See Commonwealth v. Sanchez, 614 Pa. at 65, 36 A.3d at 62-63. If the trial judge finds the defendant is eligible for the death penalty, the defendant may still introduce relevant evidence concerning his or her mental state during the guilt and penalty phases of trial, including evidence in support of statutory mitigation.

Official Note

New Rule 843 adopted July 31, 2013, effective October 1, 2013.

Committee Explanatory Reports:

Final Report explaining the July 31, 2013 adoption of the new rule published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).

The provisions of this Rule 843 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 844 Sentencing Procedures in Cases in which the Defendant’s Mental Retardation is Asserted. {#sec-rule-844 omnilex-key=us-pa-regs-official--title-234--Rule 844}

(A) Unless the issue is decided pretrial pursuant to Rule 843, in a case in which the defendant has asserted that imposition of a sentence of death is precluded by reason of his or her mental retardation, after a return of a verdict of guilty of murder in the first degree, a sentencing hearing shall be held in which all sentencing evidence shall be presented, including, but not limited to, evidence of the defendant’s mental retardation and evidence of aggravating and mitigating circumstances.

(B) In cases in which the defendant has asserted his or her mental retardation as provided in paragraph (A) and the sentencing hearing is conducted before the jury, the following procedures shall apply:

(1) After presentation of the evidence, the judge shall determine if sufficient evidence exists for the jury to decide whether the imposition of a sentence of death should be precluded by reason of mental retardation.

(a) If the judge determines sufficient evidence exists for the jury to consider the issue of the defendant’s mental retardation, the case will proceed according to the procedures in paragraphs (B)(2)—(6).

(b) If the judge determines that there is not sufficient evidence for the jury to consider the issue of the defendant’s mental retardation, the case will proceed as any other capital case.

(2) After the presentation of evidence, each party shall be entitled to present one closing argument addressing all sentencing issues, including the defendant’s alleged mental retardation and arguments for or against a sentence of death. The defendant’s argument shall be made last.

(3) Upon completion of argument, the judge shall instruct the jury solely upon the issue of the defendant’s mental retardation and shall submit a special issue to the jury as to whether the defendant is mentally retarded.

(4) The question of the defendant’s mental retardation shall be considered and answered by the jury prior to the consideration of any other sentencing issue and the determination of sentence.

(5) If the jury determines the defendant to be mentally retarded, the judge shall sentence the defendant to life imprisonment.

(6) If the jury does not find the defendant mentally retarded, the judge shall instruct the jury on the mitigating and aggravating circumstances and the jury shall deliberate on whether or not to impose the death penalty.

(C) In cases in which the defendant has asserted his or her mental retardation as provided in paragraph (A), and the defendant waives a sentencing proceeding before a jury and the trial judge determines the penalty, the following procedures shall apply:

(1) After the presentation of evidence, each party shall be entitled to present one closing argument addressing all sentencing issues, including the defendant’s alleged mental retardation and arguments for or against a sentence of death. The defendant’s argument shall be made last.

(2) The trial judge shall consider and answer the question of the defendant’s mental retardation prior to the consideration of any other sentencing issue and the determination of sentence.

(3) If the trial judge determines the defendant to be mentally retarded, the trial judge shall sentence the defendant to life imprisonment.

(4) If the trial judge does not find the defendant to be mentally retarded, the trial judge will evaluate the mitigating and aggravating circumstances and determine whether or not to impose a sentence of death.

In Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (Pa. 2011), the Pennsylvania Supreme Court held that, pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), a determination that a defendant is precluded from receiving the death penalty by reason of mental retardation is to be made as the first issue in sentencing. This rule provides the procedures for that determination whether made by a jury or a judge when the issue has not been decided pretrial pursuant to Rule 843.

Paragraph (B) addresses sentencing proceedings before a jury. The rule contemplates that a single capital sentencing hearing will be held in such cases but the jury’s deliberations will be conducted sequentially with the defendant’s mental retardation decided first. If the jury finds the defendant not mentally retarded, the judge will instruct the jury on the issues related to the imposition of a sentence of death, including the mitigating and aggravating circumstances, after which the jury will deliberate on the sentence.

Paragraph (C) addresses sentencing proceedings before a judge. See Rule 809 for the form of the trial judge sentencing verdict slip when the defendant has waived a jury for the sentencing proceeding.

Except as otherwise provided in Part B of this Chapter, sentencing shall proceed as provided in Chapter 7.

Official Note

New Rule 844 adopted July 31, 2013, effective October 1, 2013.

Committee Explanatory Reports:

Final Report explaining the July 31, 2013 adoption of the new rule published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).

The provisions of this Rule 844 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

234 Pa. Code Rule 845 Form for Sentencing Verdict Slip in Cases in which the Defendant’s Mental Retardation is Asserted. {#sec-rule-845 omnilex-key=us-pa-regs-official--title-234--Rule 845}

INSTRUCTIONS:

Indicate whether you unanimously agree that the defendant has proven that he or she is mentally retarded.

Upon completion of deliberations on the question of the defendant’s mental retardation, return to the courtroom for further instructions from the judge.

FINDINGS:

History

• Source: The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.

Chapter 9 POST-CONVICTION COLLATERAL PROCEEDINGS

234 Pa. Code Rule 900 Scope; Notice In Death Penalty Cases. {#sec-rule-900 omnilex-key=us-pa-regs-official--title-234--Rule 900}

(A) The rules in Chapter 9 apply to capital and noncapital cases under the Post Conviction Relief Act, 42 Pa.C.S. § § 9541—9546, as amended by Act 1995-32 (SS1).

(B) Notice in Death Penalty Cases

In all death penalty cases upon the Supreme Court’s affirmance of the judgment of a death sentence, the Prothonotary shall include in the mailing required by Pa.R.A.P. 2521 (Entry of Judgment or Other Order) the following information concerning the Post Conviction Relief Act and the procedures under Chapter 9 of the Rules of Criminal Procedure. ‘‘Parties’’ as used in Pa.R.A.P. 2521 shall include the defendant, the defendant’s counsel, and the attorney for the Commonwealth for the purposes of this rule.

(1) A petition for post-conviction collateral relief must be filed within one year of the date the judgment becomes final, except as otherwise provided by statute.

(2) As provided in 42 Pa.C.S. § 9545(b)(3), a judgment becomes final at the conclusion of direct review, which includes discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.

(3) (a) If the defendant fails to file a petition within the one-year time limit, the action may be barred. See 42 Pa.C.S. § 9545(b).

(b) Any issues that could have been raised in the post-conviction proceeding, but were not, may be waived. See 42 Pa.C.S. § 9544(b).

(4) Pursuant to Rule 904 (Entry of Appearance and Appointment of Counsel; Waiver of Fees and Costs), the trial judge will appoint new counsel for the purpose of post-conviction collateral review, unless:

(a) the defendant has elected to proceed pro se or waive post-conviction collateral proceedings, and the judge finds, after a colloquy on the record, that the defendant is competent and the defendant’s election is knowing, intelligent, and voluntary;

(b) the defendant requests continued representation by original trial counsel or direct appeal counsel, and the judge finds, after a colloquy on the record, that the petitioner’s election constitutes a knowing, intelligent, and voluntary waiver of a claim that counsel was ineffective; or

(c) the judge finds, after a colloquy on the record, that the defendant has engaged counsel who has entered, or will promptly enter, an appearance for the collateral review proceedings.

The 1995 amendments to the Post Conviction Relief Act specifically provide that, ‘‘except as specifically provided otherwise, all provisions of this subchapter shall apply to capital and noncapital cases.’’ See 42 Pa.C.S. § 9542.

See Rule 909 (Procedures for Petitions in Death Penalty Cases: Stays of Execution of Sentence; Hearing; Disposition) concerning requests for, and length of, stays of execution in death penalty cases.

For time limits for filing a petition for post-conviction relief and any exceptions, see 42 Pa.C.S. § 9545(b).

See Rule 904 for the procedures for the appointment of counsel.

Pursuant to paragraph (B), the Supreme Court’s Prothonotary must include with the mailing required by Rule of Appellate Procedure 2521 (Entry of Judgment or Other Order) the information set forth in paragraph (B)(1)—(4). Rule 2521 requires, inter alia, on the date a judgment or order is entered, that the prothonotary is to send to all parties by first class mail a copy of any opinion, or judgment, or order.

Official Note

Rule 1500 adopted August 11, 1997, effective immediately; Comment revised July 23, 1999, effective September 1, 1999; renumbered Rule 900 and amended March 1, 2000, effective April 1, 2001; amended March 26, 2002, effective July 1, 2002; Comment revised October 1, 2019, effective immediately.

Committee Explanatory Reports:

Final Report explaining the August 11, 1997 adoption of Rule 1500 published with the Court’s Order at 27 Pa.B. 4305 (August 23, 1997).

Final Report explaining the July 23, 1999 Comment revision concerning stays published with the Court’s Order at 29 Pa.B. 4167 (August 7, 1999).

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 March 26, 2002 amendments providing for notice in death penalty cases published with the Court’s Order at 32 Pa.B. 1841 (April 13, 2002).

Final Report explaining the October 1, 2019 Comment revision concerning time limitation for raising exceptions to filing restrictions published with the Court’s Order at 49 Pa.B. 6066 (October 19, 2019).

The provisions of this Rule 900 amended March 26, 2002, effective July 1, 2002, 32 Pa.B. 1840; amended October 1, 2019, effective immediately, 49 Pa.B. 6064; amended April 21, 2026, effective November 1, 2026, 56 Pa.B. 2555. Immediately preceding text appears at serial pages (399199) to (399200).

History

• Source: The provisions of this Rule 910 amended July 27, 2012, effective September 1, 2012, 42 Pa.B. 5347. Immediately preceding text appears at serial page (315238).

234 Pa. Code Rule 901 Initiation of Post-Conviction Collateral Proceedings. {#sec-rule-901 omnilex-key=us-pa-regs-official--title-234--Rule 901}

(A) A petition for post-conviction collateral relief shall be filed within one year of the date the judgment becomes final, except as otherwise provided by statute.

(B) A proceeding for post-conviction collateral relief shall be initiated by filing a petition and 3 copies with the clerk of the court in which the defendant was convicted and sentenced. The petition shall be verified by the defendant.

The rules in Chapter 9 govern proceedings to obtain relief authorized by the Post Conviction Relief Act, 42 Pa.C.S. § § 9541 et seq. (hereinafter PCRA).

By statute, a court may not entertain a request for any form of relief in anticipation of the filing of a petition for post-conviction collateral relief. See 42 Pa.C.S. § 9545(a). For stays of execution, see 42 Pa.C.S. § 9545(c) and Rule 909(A).

The petition for post-conviction relief under these rules is not intended to be a substitute for or a limitation on the availability of appeal or a post-sentence motion. See Pa.Rs.Crim.P. 720 and 811. Rather, the Chapter 9 Rules are intended to require that, in a single proceeding, the defendant must raise and the judge must dispose of all grounds for relief available after conviction and exhaustion of the appellate process, either by affirmance or by the failure to take a timely appeal.

Except as provided in Rule 902(E)(2) for death penalty cases, no discovery is permitted at any stage of the proceedings, except upon leave of the court with a showing of exceptional circumstances. See Rule 902(E)(1), which implements 42 Pa.C.S. § 9545(d)(2).

As used in the Chapter 9 Rules, ‘‘petition for post-conviction collateral relief’’ and ‘‘petition’’ are intended to include an amended petition filed pursuant to Rule 905, except where the context indicates otherwise.

For time limits for filing a petition for post-conviction relief and any exceptions, see 42 Pa.C.S. § 9545(b).

The 1995 amendments to the PCRA apply to petitions filed on or after January 16, 1996. A petitioner whose judgment has become final on or before the effective date of the Act is deemed to have filed a timely petition under the Act if the first petition is filed within one year of the effective date of the Act. See Section 3 of Act 1995-32 (SS1).

For the purposes of the PCRA, a judgment becomes final at the conclusion of direct review, which includes discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review. See 42 Pa.C.S. § 9545(b)(3).

Official Note

Previous Rule 1501 adopted January 24, 1968, effective August 1, 1968; amended November 25, 1968, effective February 3, 1969; amended February 15, 1974, effective immediately; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded November 9, 1984, effective January 2, 1985. Former Rule 1501 adopted November 9, 1984, effective January 2, 1985; rescinded February 1, 1989, effective July 1, 1989, and replaced by present Rule 902. Present Rule 1501 adopted February 1, 1989, effective July 1, 1989; amended March 22, 1993, effective January 1, 1994; amended August 11, 1997, effective immediately; Comment revised July 23, 1999, effective September 1, 1999; renumbered Rule 901 and amended March 1, 2000, effective April 1, 2001; Comment revised June 4, 2004, effective November 1, 2004; Comment revised October 1, 2019, effective immediately.

Committee Explanatory Reports:

Final Report explaining the March 22, 1993 amendments published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).

Final Report explaining the August 11, 1997 amendments published with the Court’s Order at 27 Pa.B. 4305 (August 23, 1997).

Final Report explaining the July 23, 1999 Comment revision concerning stays published with the Court’s Order at 29 Pa.B. 4167 (August 7, 1999).

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 October 1, 2019 Comment revision concerning time limitation for raising exceptions to filing restrictions published with the Court’s Order at 49 Pa.B. 6066 (October 19, 2019).

The provisions of this Rule 901 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105; amended October 1, 2019, effective immediately, 49 Pa.B. 6064. Immediately preceeding text appears at serial pages (311417) to (311418).

History

• Source: The provisions of this Rule 910 amended July 27, 2012, effective September 1, 2012, 42 Pa.B. 5347. Immediately preceding text appears at serial page (315238).

234 Pa. Code Rule 902 Content of Petition for Post-Conviction Collateral Relief; Request for Discovery. {#sec-rule-902 omnilex-key=us-pa-regs-official--title-234--Rule 902}

(A) A petition for post-conviction collateral relief shall bear the caption, number, and court term of the case or cases in which relief is requested and shall contain substantially the following information:

(1) the name of the defendant;

(2) the place where the defendant is confined, or if not confined, the defendant’s current address;

(3) the offenses for which the defendant was convicted and sentenced;

(4) the date on which the defendant was sentenced;

(5) whether the defendant was convicted by a jury, by a judge without jury, on a plea of guilty, or on a plea of nolo contendere;

(6) the sentence imposed and whether the defendant is now serving or waiting to serve that sentence;

(7) the name of the judge who presided at trial or plea and imposed sentence;

(8) the court, caption, term, and number of any proceeding (including appeals, prior post-conviction collateral proceedings, and federal court proceedings) instituted by the defendant to obtain relief from conviction or sentence, specifying whether a proceeding is pending or has been completed;

(9) the name of each lawyer who represented the defendant at any time after arrest, and the stage of the case at which each represented the defendant;

(10) the relief requested;

(11) the grounds for the relief requested;

(12) the facts supporting each such ground that:

(a) appear in the record, and the place in the record where they appear; and

(b) do not appear in the record, and an identification of any affidavits, documents, and other evidence showing such facts;

(13) whether any of the grounds for the relief requested were raised before, and if so, at what stage of the case;

(14) a verification by the defendant that:

(a) the facts set forth in the petition are true and correct to the best of the defendant’s personal knowledge or information and belief and that any false statements therein are made subject to the penalties of the Crimes Code, 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities; and

(b) the attorney filing the petition is authorized by the defendant to file the petition on the defendant’s behalf;

(15) if applicable, any request for an evidentiary hearing. The request for an evidentiary hearing shall include a signed certification as to each intended witness, stating the witness’s name, address, and date of birth, and the substance of the witness’s testimony. Any documents material to the witness’s testimony shall also be included in the petition; and

(16) if applicable, any request for discovery.

The petition may, but need not, include concise argument or citation and discussion of authorities.

(B) Each ground relied upon in support of the relief requested shall be stated in the petition. Failure to state such a ground in the petition shall preclude the defendant from raising that ground in any proceeding for post-conviction collateral relief.

(C) The defendant shall state in the petition the name and address of the attorney who will represent the defendant in the post-conviction collateral proceeding. If the defendant is unable to afford or otherwise procure counsel, and wants counsel appointed, the defendant shall so state in the petition and shall request the appointment of counsel.

(D) The defendant shall attach to the petition any affidavits, records, documents, or other evidence which show the facts stated in support of the grounds for relief, or the petition shall state why they are not attached.

(E) Requests for Discovery

(1) Except as provided in paragraph (E)(2), no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of exceptional circumstances.

(2) On the first counseled petition in a death penalty case, no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of good cause.

All privately retained counsel must enter an appearance as provided in Rule 904.

Paragraph (A)(14) was amended in 2002 to require the defendant to include verification that the attorney is authorized to file the petition.

Pursuant to paragraph (A)(6), the petition should include specific information about the sentence imposed, including whether the defendant is currently serving a sentence of imprisonment or probation for the crime; awaiting execution of a sentence of death for the crime; or serving a sentence which must expire before the defendant may commence serving the disputed sentence; the minimum and maximum terms of the sentence; the amount of fine or restitution, if any; and whether the defendant is released on parole. See 42 Pa.C.S. § 9543(a).

Sections 9543(a)(2), (3), and (4) of the Post Conviction Relief Act, 42 Pa.C.S. § 9543(a)(2), (3), and (4), require that to be eligible for relief, the defendant must plead and prove by a preponderance of the evidence all of the following:

‘‘(2) That the conviction or sentence resulted from one or more of the following:

(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.

(iv) The improper obstruction by government officials of the petitioner’s right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.’’

Deleted by statute.

‘‘(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.

(vii) The imposition of a sentence greater than the lawful maximum.

(viii) A proceeding in a tribunal without jurisdiction.’’

‘‘(3) That the allegation of error has not been previously litigated or waived.’’

‘‘(4) That the failure to litigate the issue prior to or during trial . . . , or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.’’ See 42 Pa.C.S. § 9543(a)(2), (3), and (4). (Note: the statutory reference to unitary review in this paragraph is not shown in view of the Court’s 1997 suspension of the Capital Unitary Review Act.)

By statute, a court may not entertain a request for any form of relief in anticipation of the filing of a petition for post-conviction relief. See 42 Pa.C.S. § 9545(a). For stays of execution, see 42 Pa.C.S. § 9545(c) and Rule 909(A).

Paragraphs (A)(16) and (E) were added in 1997 to address requests for discovery. Paragraph (A)(16) requires that a request for discovery be included in the petition, if applicable. Paragraph (E) sets forth the standards for permitting discovery. Under paragraph (E)(1), which applies in all cases except on the first counseled petition in a death penalty case, no discovery is permitted at any stage of the proceedings, except upon leave of the court with a showing of exceptional circumstances. See 42 Pa.C.S. § 9545(d)(2). Under paragraph (E)(2), which applies to first counseled petitions in death penalty cases, discovery is permitted only upon leave of court for good cause shown. For purposes of paragraph (E)(2), ‘‘first counseled petition’’ includes petitions on which defendants have elected to proceed pro se pursuant to Rule 904(h)(1)(i).

Second or subsequent petitions will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. See Commonwealth v. Szuchon, 633 A.2d 1098, 1099 (Pa. 1993) (citing Commonwealth v. Lawson, 549 A.2d 107 (Pa. 1988)). This standard is met if the petitioner can demonstrate either: (1) that the proceedings resulting in the petitioner’s conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate; or (2) that the petitioner is innocent of the crimes charged. See Commonwealth v. Szuchon, 633 A.2d 1098, 1100 (Pa. 1993).

It is expected that a form petition will be prepared incorporating the required contents set forth herein which will be available for distribution to uncounseled defendants. This rule is not intended to require an attorney to use a printed form or any other particular format in preparing a petition or an amended petition for post-conviction collateral relief, provided, of course, that the attorney must include in a petition or amended petition substantially all of the information set forth in this rule.

The petition should be typewritten or legibly handwritten.

Official Note

Previous Rule 1502 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by present Rules 1503 and 1505. Present Rule 1502 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; amended July 23, 1999, effective September 1, 1999; Comment revised January 21, 2000, effective July 1, 2000; renumbered Rule 902 and Comment revised March 1, 2000, effective April 1, 2001; amended February 26, 2002, effective July 1, 2002; Comment revised April 28, 2005, effective August 1, 2005, 35 Pa.B. 2855.

Committee Explanatory Reports:

Final Report explaining the August 11, 1997 amendments published with the Court’s Order at 27 Pa.B. 4305 (August 23, 1997).

Final Report explaining the July 23, 1999 amendments concerning stays published with the Court’s Order at 29 Pa.B. 4167 (August 7, 1999).

Final Report explaining the January 21, 2000 Comment revision cross-referencing Rule 1504(F)(1)(a) published with the Court’s Order at 30 Pa.B. 624 (February 5, 2000).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the February 26, 2002 amendments concerning entry of appearance by counsel published with the Court’s Order at 32 Pa.B. 1393 (March 16, 2002).

Final Report explaining the April 28, 2005 Comment revision published with the Court’s Order at 35 Pa.B. 2859 (May 14, 2005).

The provisions of this Rule 902 amended February 26, 2002, effective July 1, 2002, 32 Pa.B. 1391; amended April 28, 2005, effective August 1, 2005, 35 Pa.B. 2855; amended April 21, 2026, effective November 1, 2026, 56 Pa.B. 2555. Immediately preceding text appears at serial pages (399202), (311419) to (311420) and (361903).

History

• Source: The provisions of this Rule 910 amended July 27, 2012, effective September 1, 2012, 42 Pa.B. 5347. Immediately preceding text appears at serial page (315238).

234 Pa. Code Rule 903 Docketing and Assignment. {#sec-rule-903 omnilex-key=us-pa-regs-official--title-234--Rule 903}

(A) Upon receipt of a petition for post-conviction collateral relief, the clerk of courts promptly shall time stamp the petition with the date of receipt and make a docket entry, at the same term and number as the underlying conviction and sentence, reflecting the date of receipt, and promptly shall place the petition in the criminal case file. The clerk shall transmit the petition and the criminal case file to the trial judge, if available, or to the administrative judge, if the trial judge is not available. If the defendant’s confinement is by virtue of multiple indictments or informations and sentences, the case shall be docketed to the same term and number as the indictment or information upon which the first unexpired term was imposed, but the court may take judicial notice of all proceedings related to the multiple indictments or informations.

(B) When the petition is filed and the docket entry is made, the clerk shall transmit a copy of the petition to the attorney for the Commonwealth.

(C) The trial judge, if available, shall proceed with and dispose of the petition in accordance with these rules, unless the judge determines, in the interests of justice, that he or she should be disqualified.

(D) When the trial judge is unavailable or disqualified, the administrative judge promptly shall assign and transmit the petition and the record to another judge, who shall proceed with and dispose of the petition in accordance with these rules.

As used in this rule, ‘‘trial judge’’ is intended to include the judge who accepted a plea of guilty or nolo contendere.

The transmittal of the petition to the attorney for the Commonwealth does not require a response unless one is ordered by the judge as provided in these rules, or required by Rule 906(E).

Although most references to indictments and indicting grand juries were deleted from these rules in 1993 since the indicting grand jury has been abolished in all counties, see PA. CONST. art. I, § 10 and 42 Pa.C.S. § 8931(b), the reference was retained in paragraph (A) of this rule because there may be some cases still pending that were instituted under the former indicting grand jury rules prior to the abolition of the indicting grand jury in 1993. These references to ‘‘indictment’’ do not apply in the context of an indicting grand jury convened pursuant to the new indicting grand jury procedures adopted in 2012 in which an information would be filed after a grand jury indicts a defendant. See Rules 103 and 556.11.

If a defendant in a death penalty case files a petition before the trial judge has made a determination concerning the appointment of counsel as required by Rule 904(h), after making the docket entry and placing the petition in the criminal case file, the clerk promptly must forward a copy of the petition to the trial judge for that determination.

Official Note

Previous Rule 1503 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by present Rule 1504. Present Rule 1503 adopted February 1, 1989, effective July 1, 1989; amended June 19, 1996, effective July 1, 1996; amended August 11, 1997, effective immediately; Comment revised January 21, 2000, effective July 1, 2000; renumbered Rule 903 and Comment revised March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004; Comment revised June 21, 2012, effective in 180 days.

Committee Explanatory Reports:

Final Report explaining the June 19, 1996 amendments published with the Court’s Order at 26 Pa.B. 3128 (July 6, 1996).

Final Report explaining the August 11, 1997 amendments published with the Court’s Order at 27 Pa.B. 4305 (August 23, 1997).

Final Report explaining the January 21, 2000 Comment revision cross-referencing Rule 1504(F)(1)(a) published with the Court’s Order at 30 Pa.B. 624 (February 5, 2000).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 3, 2004 changes concerning making docket entries published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

Final Report explaining the June 21, 2012 revision of the Comment concerning the former abolition of the indicting grand jury published with the Court’s Order at 42 Pa.B. 4153 (July 7, 2012).

The provisions of this Rule 903 amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended June 21, 2012, effective in 180 days, 42 Pa.B. 4140; amended April 21, 2026, effective November 1, 2026, 56 Pa.B. 2555. Immediately preceding text appears at serial pages (361903) to (361905).

History

• Source: The provisions of this Rule 910 amended July 27, 2012, effective September 1, 2012, 42 Pa.B. 5347. Immediately preceding text appears at serial page (315238).

234 Pa. Code Rule 904 Entry of Appearances and Appointment of Counsel; Waiver of Fees and Costs. {#sec-rule-904 omnilex-key=us-pa-regs-official--title-234--Rule 904}

(a) Counsel for defendant shall file a written entry of appearance with the clerk of courts promptly after being retained, and serve a copy on the attorney for the Commonwealth.

(1) If a firm name is entered, the name of an individual lawyer shall be designated as being responsible for the conduct of the case.

(2) The entry of appearance shall include the attorney’s address, phone number, and attorney ID number.

(b) When counsel is appointed, the filing of the appointment order shall enter the appearance of appointed counsel.

(c) Except as provided in subdivision (h), when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant’s first petition for post-conviction collateral relief.

(d) On a second or subsequent petition, when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, and an evidentiary hearing is required as provided in Rule 908, the judge shall appoint counsel to represent the defendant.

(e) The judge shall appoint counsel to represent a defendant whenever the interests of justice require it.

(f) When counsel is appointed,

(1) the judge shall enter an order indicating the name, address, and phone number of the appointed counsel, and the order shall be served on the defendant, the appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth pursuant to Rule 114 (Orders and Court Notices: Filing; Service; and Docket Entries); and

(2) the appointment of counsel shall be effective throughout the post-conviction collateral proceedings, including any appeal from disposition of the petition for post-conviction collateral relief.

(g) A defendant may seek waiver of the costs of the post-conviction collateral proceedings as provided for in Rule 124 (Waiver of Fees and Costs).

(h) Appointment of Counsel in Death Penalty Cases.

(1) At the conclusion of direct review in a death penalty case, which includes discretionary review in the Supreme Court of the United States, or at the expiration of time for seeking the review, upon remand of the record, the trial judge shall appoint new counsel for the purpose of post-conviction collateral review, unless:

(i) the defendant has elected to proceed pro se or waive post-conviction collateral proceedings, and the judge finds, after a colloquy on the record, that the defendant is competent and the defendant’s election is knowing, intelligent, and voluntary;

(ii) the defendant requests continued representation by original trial counsel or direct appeal counsel, and the judge finds, after a colloquy on the record, that the petitioner’s election constitutes a knowing, intelligent, and voluntary waiver of a claim that counsel was ineffective; or

(iii) the judge finds, after a colloquy on the record, that the defendant has engaged counsel who has entered, or will promptly enter, an appearance for the collateral review proceedings.

(2) When counsel is appointed,

(i) the judge shall enter an order indicating the name, address, and phone number of the appointed counsel, and the order shall be served on the defendant, the appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth pursuant to Rule 114 (Orders and Court Notices: Filing; Service; and Docket Entries); and

(ii) the appointment of counsel shall be effective throughout the post-conviction collateral proceedings, including any appeal from disposition of the petition for post-conviction collateral relief.

(3) A defendant may seek waiver of the costs of the post-conviction collateral proceedings as provided for in Rule 124 (Waiver of Fees and Costs).

If a defendant seeks to proceed without an attorney, the court may appoint standby counsel. See Pa.R.Crim.P. 121.

Consistent with Pennsylvania post-conviction practice, it is intended that counsel be appointed in every case in which a defendant has filed a petition for post-conviction collateral relief for the first time and is unable to afford counsel or otherwise procure counsel. However, the rule now limits appointment of counsel on second or subsequent petitions so that counsel should be appointed only if the judge determines that an evidentiary hearing is required. Of course, the judge has the discretion to appoint counsel in any case when the interests of justice require it.

Subdivision (b) was added in 2005 to make it clear that the filing of an order appointing counsel to represent a defendant enters the appearance of appointed counsel. Appointed counsel does not have to file a separate entry of appearance.

Subdivisions (f)(1) and (h)(2)(i) require that (1) the judge include in the appointment order the name, address, and phone number of appointed counsel, and (2) the order be served on the defendant, appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth pursuant to Rule 114 (Orders and Court Notices: Filing; Service; and Docket Entries).

Pursuant to subdivisions (f)(2) and (h)(2)(ii), appointed counsel retains his or her assignment until final judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania. In making the decision whether to file a petition for allowance of appeal, counsel must (1) consult with his or her client, and (2) review the standards set forth in Pa.R.A.P. 1114 (Standards Governing Allowance of Appeal) and the note following that rule. If the decision is made to file a petition, counsel must carry through with that decision. See Commonwealth v. Liebel, 825 A.2d 630 (Pa. 2003). Concerning counsel’s obligations as appointed counsel, see Jones v. Barnes, 463 U.S. 745 (1983). See also Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. 2001).

Subdivision (h) was added in 2000 to provide for the appointment of counsel for the first petition for post-conviction collateral relief in a death penalty case at the conclusion of direct review.

Subdivision (h)(1)(i) recognizes that a defendant may proceed pro se if the judge finds the defendant competent, and that the defendant’s election is knowing, intelligent, and voluntary. In Indiana v. Edwards, 128 S.Ct. 2379, 2388 (2008), the Supreme Court recognized that, when a defendant is not mentally competent to conduct his or her own defense, the U.S. Constitution permits the judge to require the defendant to be represented by counsel.

An attorney may not represent a defendant in a capital case unless the attorney meets the educational and experiential requirements set forth in Rule 801 (Qualifications for Defense Counsel in Capital Cases).

The provisions of this Rule 904 amended February 26, 2002, effective July 1, 2002, 32 Pa.B. 1391; amended March 12, 2004, effective July 1, 2004, 34 Pa.B. 1671; amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105; amended April 28, 2005, effective August 1, 2005, 35 Pa.B. 2855; amended March 29, 2011, effective May 1, 2011, 41 Pa.B. 1999; amended April 21, 2026, effective November 1, 2026, 56 Pa.B. 2555. Immediately preceding text appears at serial pages (361905) to (361906) and (363849).

History

• Source: The provisions of this Rule 910 amended July 27, 2012, effective September 1, 2012, 42 Pa.B. 5347. Immediately preceding text appears at serial page (315238).

234 Pa. Code Rule 905 Amendment and Withdrawal of Petition for Post-Conviction Collateral Relief. {#sec-rule-905 omnilex-key=us-pa-regs-official--title-234--Rule 905}

(A) The judge may grant leave to amend or withdraw a petition for post-conviction collateral relief at any time. Amendment shall be freely allowed to achieve substantial justice.

(B) When a petition for post-conviction collateral relief is defective as originally filed, the judge shall order amendment of the petition, indicate the nature of the defects, and specify the time within which an amended petition shall be filed. If the order directing amendment is not complied with, the petition may be dismissed without a hearing.

(C) Upon the entry of an order directing an amendment, the clerk of courts shall serve a copy of the order on the defendant, the defendant’s attorney, and the attorney for the Commonwealth.

(D) All amended petitions shall be in writing, shall comply substantially with Rule 902, and shall be filed and served within the time specified by the judge in ordering the amendment.

‘‘Defective,’’ as used in paragraph (B), is intended to include petitions that are inadequate, insufficient, or irregular for any reason; for example, petitions that lack particularity; petitions that do not comply substantially with Rule 902; petitions that appear to be patently frivolous; petitions that do not allege facts that would support relief; petitions that raise issues the defendant did not preserve properly or were finally determined at prior proceedings.

When an amended petition is filed pursuant to paragraph (D), it is intended that the clerk of courts transmit a copy of the amended petition to the attorney for the Commonwealth. This transmittal does not require a response unless one is ordered by the judge as provided in these rules. See Rules 903 and 906.

Official Note

Previous Rule 1505 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by Rules 1506(b), 1508(a), and present Rule 1505(c). Present Rule 1505 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; renumbered Rule 905 and amended March 1, 2000, effective April 1, 2001; Comment revised September 21, 2012, effective November 1, 2012.

Committee Explanatory Reports:

Final Report explaining the August 11, 1997 amendments published with the Court’s Order at 27 Pa.B. 4305 (August 23, 1997).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the September 21, 2012 revision of the Comment correcting a typographical error in the first paragraph published with the Court’s Order at 42 Pa.B. 6251 (October 6, 2012).

The provisions of this Rule 905 amended September 21, 2012, effective November 1, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial page (356650).

History

• Source: The provisions of this Rule 910 amended July 27, 2012, effective September 1, 2012, 42 Pa.B. 5347. Immediately preceding text appears at serial page (315238).

234 Pa. Code Rule 906 Answer to Petition for Post-Conviction Collateral Relief. {#sec-rule-906 omnilex-key=us-pa-regs-official--title-234--Rule 906}

(A) Except as provided in paragraph (E), an answer to a petition for post-conviction collateral relief is not required unless ordered by the judge. When the judge has not ordered an answer, the attorney for the Commonwealth may elect to answer, but the failure to file one shall not constitute an admission of the well-pleaded facts alleged in the petition.

(B) Upon the entry of an order directing an answer, the clerk of courts shall serve a copy of the order on the attorney for the Commonwealth, the defendant’s attorney, or the defendant if unrepresented.

(C) If the judge orders an answer, the answer shall be in writing and shall be filed and served within the time fixed by the judge in ordering the answer. The time for filing the answer may be extended by the judge for cause shown.

(D) The judge may grant leave to amend or withdraw an answer at any time. Amendment shall be freely allowed to achieve substantial justice. Amended answers shall be in writing and shall be filed and served within the time specified by the judge in granting leave to amend.

(E) Answers in Death Penalty Cases

(1) First Counseled Petitions

(a) The Commonwealth shall file an answer to the first counseled petition for collateral review in a death penalty case.

(b) The answer shall be filed within 120 days of the filing and service of the petition. For good cause shown, the court may order extensions, of up to 90 days each, of the time for filing the answer.

(2) Second and Subsequent Petitions

(a) An answer to a second or subsequent petition for post-conviction collateral relief is not required unless ordered by the judge. When the judge has not ordered an answer, the attorney for the Commonwealth may elect to file an answer.

(b) The answer shall be filed within 120 days of the filing and service of the petition. For good cause shown, the court may order extensions, of up to 90 days each, of the time for filing the answer.

(3) Amendments to Answer

The judge may grant the Commonwealth leave to amend the answer at any time, and amendment shall be freely allowed to achieve substantial justice. Amended answers shall be in writing, and shall be filed and served within the time specified by the judge in granting leave to amend.

As used in the Chapter 9 rules, ‘‘answer’’ is intended to include an amended answer filed pursuant to paragraphs (D) and (E)(3) of this rule, except where the context indicates otherwise.

Except as provided in paragraph (E), when determining whether to order that the attorney for the Commonwealth file an answer, the judge should consider whether an answer will promote the fair and prompt disposition of the issues raised by the defendant in the petition for post-conviction collateral relief.

Paragraph (E)(1) was added in 1997 to require that the Commonwealth file an answer to the first counseled petition in a death penalty case. For second and subsequent petitions, paragraph (E)(2) would apply.

‘‘First counseled petition,’’ as used in paragraph (E)(1), includes petitions on which defendants have elected to proceed pro se pursuant to Rule 904(h)(1)(i). See also the Comment to Rule 903.

Official Note

Previous Rule 1506 adopted January 24, 1968, effective August 1, 1968; Comment revised April 26, 1979, effective July 1, 1979; rule rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; Comment revised January 28, 1983, effective July 1, 1983; rule rescinded February 1, 1989, effective July 1, 1989, and replaced by Rule 908. Present Rule 1506 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; Comment revised January 21, 2000, effective July 1, 2000; renumbered Rule 906 and Comment revised March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004.

Committee Explanatory Report:

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 March 3, 2004 changes to paragraph (B) published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

The provisions of this Rule 906 amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended April 21, 2026, effective November 1, 2026, 56 Pa.B. 2555. Immediately preceeding text appears at serial pages (363850) and (363599) to (363600).

History

• Source: The provisions of this Rule 910 amended July 27, 2012, effective September 1, 2012, 42 Pa.B. 5347. Immediately preceding text appears at serial page (315238).

234 Pa. Code Rule 907 Disposition Without Hearing. {#sec-rule-907 omnilex-key=us-pa-regs-official--title-234--Rule 907}

Except as provided in Rule 909 for death penalty cases,

(1) the judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant’s claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue.

(2) A petition for post-conviction collateral relief may be granted without a hearing when the petition and answer show that there is no genuine issue concerning any material fact and that the defendant is entitled to relief as a matter of law.

(3) The judge may dispose of only part of a petition without a hearing by ordering dismissal of or granting relief on only some of the issues raised, while ordering a hearing on other issues.

(4) When the petition is dismissed without a hearing, the judge promptly shall issue an order to that effect and shall advise the defendant by certified mail, return receipt requested, of the right to appeal from the final order disposing of the petition and of the time limits within which the appeal must be filed. The order shall be filed and served as provided in Rule 114.

(5) When the petition is granted without a hearing, the judge promptly shall issue an order granting a specific form of relief, and issue any supplementary orders appropriate to the proper disposition of the case. The order shall be filed and served as provided in Rule 114.

The judge is permitted, pursuant to paragraph (1), to summarily dismiss a petition for post-conviction collateral relief in certain limited cases. To determine whether a summary dismissal is appropriate, the judge should thoroughly review the petition, the answer, if any, and all other relevant information that is included in the record. If, after this review, the judge determines that the petition is patently frivolous and without support in the record, or that the facts alleged would not, even if proven, entitle the defendant to relief, or that there are no genuine issues of fact, the judge may dismiss the petition as provided herein.

A summary dismissal would also be authorized under this rule if the judge determines that a previous petition involving the same issue or issues was filed and was finally determined adversely to the defendant. See 42 Pa.C.S. § 9545(b) for the timing requirements for filing second and subsequent petitions.

Second or subsequent petitions will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. See Commonwealth v. Szuchon, 534 Pa. 483, 486, 633 A.2d 1098, 1099 (1993) (citing Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988)). This standard is met if the petitioner can demonstrate either: (1) that the proceedings resulting in the petitioner’s conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate; or (2) that the petitioner is innocent of the crimes charged. See Commonwealth v. Szuchon, 534 Pa. 483, 487, 633 A.2d 1098, 1100 (1993).

When the disposition granting a petition reinstates a defendant’s direct appeal rights nunc pro tunc, the judge must advise the defendant by certified mail, return receipt requested that a new notice of appeal must be filed within 30 days of the order.

The clerk of courts must comply with the notice and docketing requirements of Rule 114 with regard to any orders entered pursuant to this rule.

For the requirements for appointment of counsel on second and subsequent petitions, see Rule 904(d).

Relief may be granted without a hearing under paragraph (2) only after an answer has been filed either voluntarily or pursuant to court order.

A PCRA petition may not be dismissed due to delay in filing except after a hearing on a motion to dismiss. See 42 Pa.C.S. § 9543(b) and Rule 908.

Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service’s return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

Official Note

Previous Rule 1507 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; amended January 28, 1983, effective July 1, 1983; rescinded February 1, 1989, effective July 1, 1989, and not replaced. Present Rule 1507 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; renumbered Rule 907 and amended March 1, 2000, effective April 1, 2001; Comment revised September 18, 2008, effective February 1, 2009; amended July 27, 2012, effective September 1, 2012.

Committee Explanatory Reports:

Final Report explaining the August 11, 1997 amendments published with the Court’s Order at 27 Pa.B. 4305 (August 23, 1997).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service’s return receipt electronic option published with the Court’s Order at 38 Pa.B. 5428 (October 4, 2008).

Final Report explaining the July 27, 2012 amendments to paragraph (4) and the addition of paragraph (5) concerning orders and the proposed revision of the Comment concerning appeals nunc pro tunc published with the Court’s Order at 42 Pa.B. 5349 (August 18, 2012).

The provisions of this Rule 907 amended September 18, 2008, effective February 1, 2009, 38 Pa.B. 5425; amended July 27, 2012, effective September 1, 2012, 42 Pa.B. 5347; amended April 21, 2026, effective November 1, 2026, 56 Pa.B. 2555. Immediately preceding text appears at serial pages (363600) to (363602).

History

• Source: The provisions of this Rule 910 amended July 27, 2012, effective September 1, 2012, 42 Pa.B. 5347. Immediately preceding text appears at serial page (315238).

234 Pa. Code Rule 908 Hearing. {#sec-rule-908 omnilex-key=us-pa-regs-official--title-234--Rule 908}

(A) Except as provided in Rule 907, the judge shall order a hearing:

(1) whenever the Commonwealth files a motion to dismiss due to the defendant’s delay in filing the petition; or

(2) when the petition for post-conviction relief or the Commonwealth’s answer, if any, raises material issues of fact. However, the judge may deny a hearing on a specific issue of fact when a full and fair evidentiary hearing upon that issue was held at trial or at any proceeding before or after trial.

The judge shall schedule the hearing for a time that will afford the parties a reasonable opportunity for investigation and preparation, and shall enter such interim orders as may be necessary in the interests of justice.

(B) The judge, on petition or request, shall postpone or continue a hearing to provide either party a reasonable opportunity, if one did not exist previously, for investigation and preparation regarding any new issue of fact raised in an amended petition or amended answer.

(C) The judge shall permit the defendant to appear in person at the hearing and shall provide the defendant an opportunity to have counsel.

(D) Upon the conclusion of the hearing the judge shall determine all material issues raised by the defendant’s petition and the Commonwealth’s answer, or by the Commonwealth’s motion to dismiss, if any.

(1) If the judge dismisses the petition, the judge promptly shall issue an order denying relief. The order shall be filed and served as provided in Rule 114.

(2) If the judge grants the petition, the judge promptly shall issue an order granting a specific form of relief, and issue any supplementary orders appropriate to the proper disposition of the case. The order shall be filed and served as provided in Rule 114.

(E) If the judge disposes of the case in open court in the presence of the defendant at the conclusion of the hearing, the judge shall advise the defendant on the record of the right to appeal from the final order disposing of the petition and of the time within which the appeal must be taken. If the case is taken under advisement, or when the defendant is not present in open court, the judge, by certified mail, return receipt requested, shall advise the defendant of the right to appeal from the final order disposing of the petition and of the time limits within which the appeal must be filed.

The judge’s power, under paragraph (A), to deny a hearing on a specific factual issue is intended to apply when an issue of fact already has been heard fully, but has never been determined. The judge need not rehear such an issue, but would be required to determine it under paragraph (D).

The 1997 amendment to paragraph (A)(1) requires a hearing on every Commonwealth motion to dismiss due to delay in the filing of a PCRA petition. See 42 Pa.C.S. § 9543(b).

When the disposition reinstates a defendant’s direct appeal rights nunc pro tunc, the judge, pursuant to paragraph (E), also must advise the defendant that a new notice of appeal must be filed within 30 days of the order reinstating the direct appeal rights.

The clerk of courts must comply with the notice and docketing requirements of Rule 114 with regard to any orders entered pursuant to this rule.

See also Rule 909 for procedures in death penalty cases.

Except as provided in Rule 902(E)(2) for first counseled petitions in death penalty cases, no discovery is permitted at any stage of the proceedings, except upon leave of the court with a showing of exceptional circumstances. See 42 Pa.C.S. § 9545(d)(2).

Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service’s return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

Official Note

Rule 1508 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; renumbered Rule 908 and amended March 1, 2000, effective April 1, 2001; Comment revised September 18, 2008, effective February 1, 2009; amended July 27, 2012, effective September 1, 2012.

Committee Explanatory Reports:

Final Report explaining the August 11, 1997 amendments published with the Court’s Order at 27 Pa.B. 4305 (August 23, 1997).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the Setpember 18, 2008 revision of the Comment concerning the United States Postal Service’s return receipt electronic option published with the Court’s Order at 38 Pa.B. 5428 (October 4, 2008).

Final Report explaining the July 27, 2012 amendments to paragraphs (D) and (E) concerning orders and notice to the defendant, and the proposed revision of the Comment concerning appeals nunc pro tunc published with the Court’s Order at 42 Pa.B. 5349 (August 18, 2012).

The provisions of this Rule 908 amended September 18, 2008, effective February 1, 2009, 38 Pa.B. 5425; amended July 7, 2012, effective September 1, 2012, 42 Pa.B. 5347. Immediately preceding text appears at serial pages (338924) to (338925).

History

• Source: The provisions of this Rule 910 amended July 27, 2012, effective September 1, 2012, 42 Pa.B. 5347. Immediately preceding text appears at serial page (315238).

234 Pa. Code Rule 909 Procedures for Petitions in Death Penalty Cases: Stays of Execution of Sentence; Hearing; Disposition. {#sec-rule-909 omnilex-key=us-pa-regs-official--title-234--Rule 909}

(A) Stays of Execution

(1) In a case in which the defendant has received a sentence of death, any request for a stay of execution of sentence should be made in the petition for post-conviction collateral relief.

(2) In all cases in which a stay of execution has been properly granted, the stay shall remain in effect through the conclusion of all PCRA proceedings, including review in the Supreme Court of Pennsylvania, or the expiration of time for seeking such review.

(B) Hearing; Disposition

(1) No more than 20 days after the Commonwealth files an answer pursuant to Rule 906(E)(1) or (E)(2), or if no answer is filed as permitted in Rule 906(E)(2), within 20 days after the expiration of the time for answering, the judge shall review the petition, the Commonwealth’s answer, if any, and other matters of record relating to the defendant’s claim(s), and shall determine whether an evidentiary hearing is required.

(2) If the judge is satisfied from this review that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings,

(a) the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal.

(b) The defendant may respond to the proposed dismissal within 20 days of the date of the notice.

(c) No later than 90 days from the date of the notice, or from the date of the defendant’s response, the judge shall issue an order:

(i) dismissing the petition;

(ii) granting the defendant leave to file an amended petition; or

(iii) ordering that an evidentiary hearing be held on a date certain.

The order shall be filed and served as provided in Rule 114.

(3) If the judge determines that an evidentiary hearing is required, the judge shall enter an order setting a date certain for the hearing, which shall not be scheduled for fewer than 10 days or more than 45 days from the date of the order. The judge may, for good cause shown, grant leave to continue the hearing. No more than 90 days after the conclusion of the evidentiary hearing, the judge shall dispose of the petition.

(4) When the 90-day time periods in paragraphs (B)(2)(c) and (B)(3) must be delayed, the judge, for good cause shown, may enter an order extending the period for not longer than 30 days.

(5) If the judge does not act within the 90 days mandated by paragraphs (B)(2)(c) and (B)(3), or within the 30 day-extension permitted by paragraph (B)(4), the clerk of courts shall send a notice to the judge that the time period for disposing of the petition has expired. The clerk shall enter the date and time of the notice on the docket, and shall send a copy of the notice to the attorney for the Commonwealth, the defendant, and defense counsel, if any.

(6) If the judge does not dispose of the defendant’s petition within 30 days of the clerk of courts’ notice, the clerk immediately shall send a notice of the judge’s non-compliance to the Supreme Court. The clerk shall enter the date and time of the notice on the docket, and shall send a copy of the notice to the attorney for the Commonwealth, the defendant, and defense counsel, if any.

(7) When the petition for post-conviction collateral relief is dismissed by order of the court,

(a) the clerk immediately shall furnish a copy of the order by mail or personal delivery to the Prothonotary of the Supreme Court, the attorney for the Commonwealth, the defendant, and defense counsel, if any.

(b) The order shall advise the defendant of the right to appeal from the final order disposing of the petition, and of the time within which the appeal must be taken.

Paragraph (A)(1) was added in 1999 to provide the avenue by which a defendant in a death penalty case may request a stay of execution. Failure to include a request for a stay in the petition for post-conviction collateral relief may not be construed as a waiver, and the defendant may file a separate request for the stay. In cases involving second or subsequent petitions when an application for a stay is filed separately from the PCRA petition, Commonwealth v. Morris, 565 Pa. 1, 33-34, 771 A.2d 721, 740-741 (2001), provides that the separate stay application ‘‘must set forth: a statement of jurisdiction; if necessary, a statement that a petition is currently pending before the court; and a statement showing a likelihood of prevailing on the merits.’’

Paragraph (A)(2) provides if a stay of execution is properly granted, that the stay will remain in effect throughout the PCRA proceedings in the trial court and during the appeal to the Pennsylvania Supreme Court. Nothing in this rule is intended to preclude a party from seeking review of an order granting or denying a stay of execution. See Pa.R.A.P. 1702(d) (Stay of Execution) and Pa.R.A.P. 3316 (Review of Stay of Execution Orders in Capital Cases).

Paragraph (B)(3) permits the judge to continue the hearing when there is good cause, such as when the judge determines that briefing and argument are necessary on any of the issues, or when there is a problem with securing the defendant’s appearance.

It is intended that once a determination is made under paragraph (B)(3) of this rule that an evidentiary hearing is required, the provisions of Rule 908(C), (D), and (E) apply.

Paragraph (B)(4) was added in 2002 to permit the judge to enter an order for one 30-day extension of the 90-day time limit within which the judge must act pursuant to paragraphs (B)(2)(c) and (B)(3) of this rule. When the judge extends the time, the judge promptly must notify the clerk of courts of the extension order.

Paragraph (B)(5) addresses the situation in which the judge does not comply with the rule’s time limits. The clerk of courts is required to give the judge notice that the 90-day time period, or the 30-day extension, has expired. Further non-compliance requires the clerk to bring the case to the attention of the Supreme Court, which is responsible for the administration of the unified judicial system.

It is expected, if there are extenuating circumstances why the judge cannot act within the time limits of the rule, the judge will provide a written explanation to the Supreme Court.

Paragraph (B)(7) requires the clerk to immediately notify the Prothonotary of the Supreme Court, the attorney for the Commonwealth, the defendant, and defense counsel, if any, that the petition has been denied. This notice is intended to protect the defendant’s right to appeal.

When the disposition reinstates a defendant’s direct appeal rights nunc pro tunc, the judge must advise the defendant either in person or by certified mail, return receipt requested that a new notice of appeal must be filed within 30 days of the order.

The clerk of courts must comply with the notice and docketing requirements of Rule 114 with regard to any orders entered pursuant to this rule.

Official Note

Previous Rule 1509 adopted February 1, 1989, effective July 1, 1989; renumbered Rule 1510 August 11, 1997, effective immediately. Present Rule 1509 adopted August 11, 1997, effective immediately; amended July 23, 1999, effective September 1, 1999; renumbered Rule 909 and amended March 1, 2000, effective April 1, 2001; amended February 12, 2002, effective July 1, 2002; amended October 7, 2005, effective February 1, 2006; amended July 27, 2012, effective September 1, 2012.

Committee Explanatory Reports:

Final Report explaining the August 11, 1997 adoption of new Rule 1509 published with the Court’s Order at 27 Pa.B. 4305 (August 23, 1997).

Final Report explaining the July 23, 1999 amendments concerning stays published with the Court’s Order at 29 Pa.B. 4167 (August 7, 1999).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the February 12, 2002 amendments concerning extensions of time and sanctions published with the Court’s Order at 32 Pa.B. 1174 (March 2, 2002).

Final Report explaining the October 7, 2005 amendments to paragraph (A)(2) and revision of the Comment concerning Commonwealth v. Morris published with the Court’s Order at 35 Pa.B. 5772 (October 22, 2005).

Final Report explaining the July 27, 2012 amendments to paragraph (2)(c) concerning orders and the revision of the Comment concerning appeals nunc pro tunc published with the Court’s Order at 42 Pa.B. 5349 (August 18, 2012).

The provisions of this Rule 909 amended October 7, 2005, effective February 1, 2006, 35 Pa.B. 5771; amended July 27, 2012, effective September 1, 2012, 42 Pa.B. 5347. Immediately preceding text appears at serial pages (338925) to (338926) and (315237) to (315238).

History

• Source: The provisions of this Rule 910 amended July 27, 2012, effective September 1, 2012, 42 Pa.B. 5347. Immediately preceding text appears at serial page (315238).

234 Pa. Code Rule 910 Appeal. {#sec-rule-910 omnilex-key=us-pa-regs-official--title-234--Rule 910}

An order granting, denying, dismissing, or otherwise finally disposing of a petition for post-conviction collateral relief shall constitute a final order for purposes of appeal.

Disposition without a hearing under Rule 907(A) and (B), or under Rule 909(C)(3)(a), constitutes a final order under this rule. A partial disposition under Rule 907(C) is not a final order until the judge has fully disposed of all claims.

When the disposition reinstates a defendant’s direct appeal rights nunc pro tunc, a new notice of appeal must be filed within 30 days of the order.

Official Note

Previously Rule 1509, adopted February 1, 1989, effective July 1, 1989; renumbered Rule 1510 and amended August 11, 1997, effective immediately; renumbered Rule 910 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised July 27, 2012, effective September 1, 2012.

Committee Explanatory Reports:

Final Report explaining the August 11, 1997 amendments published with the Court’s Order at 27 Pa.B. 4305 (August 23, 1997).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the July 27, 2012 Comment revision concerning appeal nunc pro tunc published with the Court’s Order at 42 Pa.B. 5349 (August 18, 2012).

The provisions of this Rule 910 amended July 27, 2012, effective September 1, 2012, 42 Pa.B. 5347. Immediately preceding text appears at serial page (315238).

History

• Source: The provisions of this Rule 910 amended July 27, 2012, effective September 1, 2012, 42 Pa.B. 5347. Immediately preceding text appears at serial page (315238).

Chapter 10 RULES OF CRIMINAL PROCEDURE FOR THE PHILADELPHIA MUNICIPAL COURT AND THE PHILADELPHIA MUNICIPAL COURT TRAFFIC DIVISION

234 Pa. Code Rule 1000 Scope of Rules. {#sec-rule-1000 omnilex-key=us-pa-regs-official--title-234--Rule 1000}

(A) The rules in this chapter govern all proceedings in the Philadelphia Municipal Court, including summary cases; Municipal Court cases, as defined in Rule 1001(A); the filing of appeals from Municipal Court cases; the filing of petitions for writs of certiorari; and the preliminary proceedings in criminal cases charging felonies, Part A, and govern proceedings in summary traffic cases in Municipal Court Traffic Division, Part B.

(B) Any procedure that is governed by a statewide Rule of Criminal Procedure that is not specifically covered in Chapter 10 or by a Philadelphia local rule authorized by these rules and adopted pursuant to Rule 105 shall be governed by the relevant statewide rule.

The 2004 amendments make it clear that, except as otherwise provided in the rules, Chapter 10 governs all proceedings in the Philadelphia Municipal Court, including the procedures for instituting criminal cases charging felonies, preliminary arraignments, and preliminary hearings. See 42 Pa.C.S. § 1123 (Jurisdiction and Venue).

Official Note

Rule 6000 adopted December 30, 1968, effective January 1, 1969; amended March 28, 1973, effective March 28, 1973; amended July 1, 1980, effective August 1, 1980; renumbered Rule 1000 and amended March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended June 30, 2005, effective August 1, 2006; amended September 9, 2005, effective February 1, 2006; amended May 7, 2014, effective immediately.

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. 1478 (March 18, 2000).

Final Report explaining the August 24, 2004 amendments clarifying the scope of Chapter 10 published with the Court’s Order at 34 Pa.B. 5025 (September 11, 2004).

Final Report explaining the June 30, 2005 amendments to paragraph (B) concerning local rules published with the Court’s Order at 35 Pa.B. 3911 (July 16, 2005).

Final Report explaining the September 9, 2005 amendments adding new rules governing Philadelphia Traffic Court published with the Court’s Order at 35 Pa.B. 5242 (September 24, 2005).

Final Report explaining the May 7, 2014 amendments concerning the abolition of the Philadelphia Traffic Court transfer of functions to the Philadelphia Municipal Court published with the Court’s Order at 44 Pa.b. 3065 (May 24, 2014).

The provisions of this Rule 1000 amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended June 30, 2005, effective August 1, 2006, 35 Pa.B. 3901; amended September 9, 2005, effective February 1, 2006, 35 Pa.B. 5239; amended May 7, 2014, effective immediately, 44 Pa.B. 3056. Immediately preceeding text appears at serial pages (358899) to (358900).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1001 Disposition of Criminal Cases—Philadelphia Municipal Court. {#sec-rule-1001 omnilex-key=us-pa-regs-official--title-234--Rule 1001}

(A) A Municipal Court case is any case in which the only offense or offenses charged are misdemeanors under the Crimes Code or other statutory criminal offenses for which no prison term may be imposed or which is punishable by a term of imprisonment of not more than 5 years, including any offense under the Vehicle Code other than a summary offense.

(B) When one or more such offenses are charged in a single complaint or series of complaints against one defendant, all shall be joined in the same Municipal Court case, regardless of the length of the cumulative sentence which could be imposed on all charges.

(C) A Municipal Court case may be transferred from the Municipal Court to the Court of Common Pleas by order of the President Judge of the Court of Common Pleas, or the President Judge’s designee, upon the President Judge’s approval of:

(1) a certification by defense counsel that trial in the Municipal Court will unduly delay defendant’s access to a trial by jury; or

(2) a certification by both defense counsel and the attorney for the Commonwealth that the trial of the case will be so time consuming as to unduly disrupt the business of the Municipal Court.

(D) The attorney for the Commonwealth may file with the Municipal Court Clerk of Courts a written certification to exercise the Commonwealth’s right to a jury trial in a Municipal Court case. The attorney for the Commonwealth shall serve a copy of the certification on counsel for the defendant, or the defendant if unrepresented, and on the President Judge of Municipal Court. Upon receipt of the certification, the President Judge promptly shall schedule a preliminary hearing, and the case shall be conducted as provided in Rules 541, 542, 543 and 1003(E). When a case is held for court, the case shall remain in the Common Pleas Court through final disposition.

This rule, which defines ‘‘Municipal Court case,’’ is intended to ensure that the Municipal Court will take dispositive action, including trial and verdict when appropriate, in any criminal case that does not involve a felony, excluding summary cases under the Vehicle Code. The latter are under the jurisdiction of the Municipal Court Traffic Division, the successor of the Philadelphia Traffic Court, see Act 17 of 2013, P. L. 55, No. 17 (June 19, 2013) and 42 Pa.C.S. § § 102, 325, 1121, 1127, 1302, 1321.

Paragraph (D) was added in 2007 in accord with the 1998 amendment to article I, § 6 of the Pennsylvania Constitution that provides that ‘‘the Commonwealth shall have the same right to trial by jury as does the accused.’’ See Commonwealth v. Hargraves, 883 A.2d 616 (Pa. Super. 2005), allocatur denied, 587 Pa. 711, 898 A.2d 1069 (2006). The filing and service requirement in paragraph (D) must be accomplished as provided in Rule 576. Once a case is bound over to Common Pleas Court, the trial judge may not remand the case to the Municipal Court for any reason, even if the right to jury trial is waived.

Official Note

Present Rule 6001 adopted March 28, 1973, effective March 28, 1973, replacing prior Rule 6001; amended June 28, 1974, effective July 1, 1974; paragraph (C) added February 10, 1975, effective immediately; title amended July 1, 1980, effective August 1, 1980; Comment revised January 28, 1983, effective July 1, 1983; amended June 19, 1996, effective July 1, 1996; amended August 28, 1998, effective immediately; renumbered Rule 1001 and Comment revised March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended January 5, 2007, effective March 6, 2007; amended January 27, 2011, effective in 30 days; Comment revised May 7, 2014, effective immediately.

Committee Explanatory Reports:

Final Report explaining the June 19, 1996 amendments published with the Court’s Order at 26 Pa.B. 3128 (July 6, 1996).

Final Report explaining the August 28, 1998 amendments published with the Court’s Order at 28 Pa.B. 4627 (September 12, 1998).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the August 24, 2004 amendments clarifying the definition of ‘‘Municipal Court Case’’ published with the Court’s Order at 34 Pa.B. 5025 (September 11, 2004).

Final Report explaining the January 5, 2007 amendments adding paragraph (D) concerning the Commonwealth’s right to a jury trial in a Municipal Court case published with the Court’s Order at 37 Pa.B. 313 (January 20, 2007).

Final Report explaining the May 7, 2014 Comment concerning revision the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published with the Court’s Order at 44 Pa.B. 3065 (May 24, 2014).

The provisions of this Rule 1001 amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended January 5, 2007, effective March 6, 2007, 37 Pa.B. 312; amended January 27, 2011, effective in 30 days, 41 Pa.B. 834; amended May 7, 2014, effective immediately, 44 Pa.B. 3056. Immediately preceeding text appears at serial pages (358900) and (356095) to (356096).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1002 [Rescinded]. {#sec-rule-1002 omnilex-key=us-pa-regs-official--title-234--Rule 1002}

(A) Except as provided in this rule or by local rule authorized by this rule, or elsewhere in Chapter 10, all criminal proceedings in which a person is accused only of one or more non-traffic summary offenses or violations of municipal criminal ordinances shall proceed as provided in Chapter 4 of the Rules of Criminal Procedure.

(B) Non-traffic summary proceedings shall be instituted either by a citation issued to the defendant or arresting without a warrant when arrest is specifically authorized by law.

(1) Issuance of Citation

(a) The law enforcement officer shall issue the citation to the defendant pursuant to Rule 405 (Issuance of Citation), together with a notice to appear, unless required to proceed pursuant to paragraph (B)(1)(e). The notice to appear shall:

(i) direct the defendant to appear before a judge or trial commissioner on a date and at a time certain in a specified court room, and

(ii) shall advise the defendant that failure to appear shall constitute consent to a trial in the defendant’s absence, and if the defendant is found guilty, the defendant shall have the right to appeal within 30 days for a trial de novo.

(b) When authorized by local rule promulgated pursuant to Rule 105 (Local Rules), the law enforcement officer may prepare, verify, and transmit a citation electronically. The law enforcement officer contemporaneously shall give the defendant a paper copy of the citation containing all the information required by Rule 403(A) (Contents of Citation) and a notice to appear. The notice to appear shall:

(i) direct the defendant to appear before a judge or trial commissioner on a date and at a time certain in a specified court room, and

(ii) shall advise the defendant that failure to appear shall constitute consent to a trial in the defendant’s absence, and if the defendant is found guilty, the defendant shall have the right to appeal within 30 days for a trial de novo.

(c) Within 5 days after issuance of the citation and notice to appear, the citation shall be filed with the clerk of Municipal Court.

(d) When the defendant appears before the judge or trial commissioner as provided in paragraph (B)(1)(a) or (B)(1)(b), the judge or trial commissioner shall explain the process to the defendant.

(i) If the defendant enters a guilty plea, the judge or trial commissioner shall impose the fines and costs.

(ii) If the defendant enters a not guilty plea, the judge or trial commissioner shall set a date for trial before a judge and issue a subpoena to the defendant. The judge or trial commissioner shall advise the defendant that failure to appear at the trial shall constitute consent to a trial in the defendant’s absence, and if the defendant is found guilty, the defendant shall have the right to appeal within 30 days for a trial de novo.

(iii) If applicable, after paying any fee imposed, the defendant may be accepted into the Municipal Court’s summary case diversionary program, or any other diversionary program offered pursuant to local rule promulgated pursuant to Rule 105 (Local Rules). When the defendant successfully completes the Municipal Court’s summary case diversionary program, the defendant’s arrest record automatically will be expunged.

(e) When required by local rule promulgated pursuant to Rule 105 (Local Rules), the law enforcement officer shall take the defendant into custody and transport him or her to the appropriate district police station, where, without unnecessary delay, the law enforcement officer or a superior officer shall prepare and issue the citation to the defendant. Thereafter, the law enforcement officer without unnecessary delay shall transport the defendant to the Municipal Court for proceedings before a judge, and the case shall proceed as provided by local rule promulgated pursuant to Rule 105 (Local Rules).

(f) The defendant shall not be slated, fingerprinted, or photographed, except as provided by law.

(2) Arrest Without a Warrant

(a) When an arrest without a warrant in a non-traffic summary case is authorized by law, the police officer shall take the defendant into custody and transport him or her to the appropriate district police station, where, without unnecessary delay, the police officer or a superior officer shall prepare and issue a citation to the defendant.

(b) Except when the police officer is required to proceed pursuant to paragraph (B)(1)(e), or as otherwise provided in this rule, the case shall proceed as provided in Rule 441.

(c) If the defendant is to be released pursuant to Rule 441(B), the defendant shall be released on his or her own recognizance and given a notice to appear on a date and at a time certain in a specified court room. The notice to appear shall advise the defendant that failure to appear shall constitute consent to a trial in the defendant’s absence, and if the defendant is found guilty, the defendant shall have the right to appeal within 30 days for a trial de novo.

(d) If the defendant is not released under Rule 441(B), the defendant without unnecessary delay shall be brought before a judge, who shall proceed as provided in Rule 441(C).

(C) If the defendant fails to appear pursuant to the notice to appear issued as required by paragraphs (B)(1)(a), (B)(1)(b) or (B)(2)(c), or a subpoena issued as required by paragraph (B)(1)(d)(ii), the case shall proceed as provided in paragraph (D).

(D) If the defendant fails to appear as required in (C), the trial shall be conducted in the defendant’s absence, unless the judge determines that there is a likelihood that the sentence will be imprisonment or that there is other good cause not to conduct the trial in the defendant’s absence. If the trial is not conducted in the defendant’s absence, the judge shall issue a bench warrant for the defendant’s arrest.

(1) At trial, the judge shall proceed to determine the facts and render a verdict in the same manner as trials in criminal cases are conducted in the Common Pleas Court when a jury trial has been waived; however, the law enforcement officer observing the defendant’s alleged offense may, but shall not be required to, appear and testify against the defendant. In no event shall the failure of the law enforcement officer to appear, by itself, be a basis for dismissal of the charges against the defendant. The allegations in the citation may be recited on behalf of the observing law enforcement officer by his or her representative or designee. The failure of the defendant to appear will be deemed to be a waiver of the right to present defense witnesses.

(2) If the defendant is found guilty, the judge shall impose sentence, and shall give notice by first class mail to the defendant of the conviction and sentence, of the right to file an appeal within 30 days for a trial de novo, and of the consequences for failing to pay the costs and fines imposed.

(3) In appeals from the summary conviction, the law enforcement officer who observed the alleged offense must appear and testify. The failure of a law enforcement officer to appear and testify shall result in the dismissal of the charges unless:

(a) the defendant waives the presence of the law enforcement officer in open court on the record;

(b) the defendant waives the presence of the law enforcement officer by filing a written waiver signed by the defendant and defense counsel, or the defendant if proceeding pro se, with the clerk of courts; or

(c) the trial judge determines that good cause exists for the law enforcement officer’s unavailability and grants a continuance.

(E) When the same conduct is proscribed under an Act of Assembly and a municipal criminal ordinance, the charge shall be brought under the Act of Assembly and not under the ordinance.

This rule, which replaced former Rule 1002 in 2005, was developed to accommodate the procedures Philadelphia Municipal Court has implemented to address the issues in non-traffic summary cases unique to Philadelphia to more efficiently handle the vast number of non-traffic summary cases, to protect the defendants’ rights to a fair and prompt disposition of their cases, and, when appropriate, to provide the necessary rehabilitation or social services. Municipal Court is required to implement local rules pursuant to Rule 105 (Local Rules) enumerating the details of the summary proceedings following the issuance of a citation or a summons. For purposes of this rule, ‘‘local rule’’ includes all memoranda of understanding and administrative orders that affect non-traffic summary case procedures.

Once a summary case is appealed to the Court of Common Pleas for trial de novo, the case shall remain in the Court of Common Pleas. See also Pa.R.Crim.P. 462.

For the procedures governing suppression motions in summary cases, see Rule 454(g).

The 2009 amendments to paragraph (B) conform the non-traffic summary citation procedures in Philadelphia with the statewide procedures governing the institution of a non-traffic summary case by issuing a citation to the defendant in person or arresting the defendant without a warrant. See Rules 405 (Issuance of Citation) and 440 (Arrest Without Warrant). The amendments require the police officer to issue a citation as provided in Rule 405 and proceed pursuant to paragraph (B)(1)(a) or (B)(1)(b), unless the case falls within the jurisdiction of one of Philadelphia Municipal Court’s Nuisance Night Courts or Community Courts, or to arrest without a warrant when such an arrest is authorized by law.

The contents of the citation must comply with the requirements of Rule 403(A). The notice to appear required by paragraphs (B)(1)(a), (B)(1)(b), and (B)(2)(c) may be added to the citation form.

Nothing in this rule is intended to permit the admission of double hearsay.

Arrests without a warrant in summary cases are authorized only in exceptional circumstances, such as cases involving enhanced penalties, or when the defendant fails to produce identification, or when there is violence or the imminent threat of violence, or when there is a likelihood that the defendant will flee.

Nothing in this rule prevents the filing of a citation pursuant to Rules 410 and 411.

The 2009 amendments do not modify the current procedures governing Philadelphia Municipal Court’s Nuisance Night Courts and Community Courts that are implemented by paragraph (B)(1)(e).

Although defendants in summary cases ordinarily are not slated, photographed, or fingerprinted, the issuing authority should require the defendant to submit to administrative processing and identification procedures (such as fingerprinting) as authorized by law. See, e.g., 18 Pa.C.S. § 3929(g) concerning fingerprinting in retail theft cases.

The 2010 amendments added new paragraph (D) and related changes to clarify that summary trials in Philadelphia courts may be conducted in the defendant’s absence, conforming Philadelphia practice with the statewide procedures governing trials in the defendant’s absence. Compare Rules 454, 455 and 462.

Nothing in paragraph (D) requires that the trial in absentia be conducted immediately.

All summary offenses under the motor vehicle laws and parking violations are under the jurisdiction of the Municipal Court Traffic Division, the successor of the Philadelphia Traffic Court, see Act 17 of 2013, P. L. 55, No. 17 (June 19, 2013) and 42 Pa.C.S. § § 102, 325, 1121, 1127, 1302, 1321.

The provisions of this Rule 1002 adopted August 15, 2005, effective February 1, 2006, 35 Pa.B. 4914; amended May 12, 2009, effective February 1, 2010; amended February 12, 2010, effective April 1, 2010, 40 Pa.B. 1068; amended December 22, 2010, effective February 20, 2011, 41 Pa.B. 216; amended May 7, 2014, effective immediately, 44 Pa.B. 3056; amended January 8, 2025, effective April 1, 2025, 55 Pa.B. 702. Immediately preceding text appears at serial pages (372138) to (372142).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1003 Procedure in Non-Summary Municipal Court Cases. {#sec-rule-1003 omnilex-key=us-pa-regs-official--title-234--Rule 1003}

(A) INITIATION OF CRIMINAL PROCEEDINGS

(1) Criminal proceedings in court cases shall be instituted by filing a written complaint, except that proceedings may be also instituted by:

(a) an arrest without a warrant when a felony or misdemeanor is committed in the presence of the police officer making the arrest; or

(b) an arrest without a warrant upon probable cause when the offense is a misdemeanor not committed in the presence of the police officer making the arrest, when the arrest without a warrant is specifically authorized by law; or

(c) an arrest without a warrant upon probable cause when the offense is a felony.

(2) Private Complaints

(a) When the affiant is not a law enforcement officer, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove it without unreasonable delay.

(b) If the attorney for the Commonwealth:

(i) approves the complaint, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority;

(ii) disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter, the affiant may petition the President Judge of Municipal Court, or the President Judge’s designee, for review of the decision. Appeal of the decision of the Municipal Court shall be to the Court of Common Pleas.

(B) CERTIFICATION OF COMPLAINT

Before an issuing authority may issue process or order further proceedings in a Municipal Court case, the issuing authority shall ascertain and certify on the complaint that:

(1) the complaint has been properly completed and executed; and

(2) when prior submission to an attorney for the Commonwealth is required, an attorney has approved the complaint.

The issuing authority shall then accept the complaint for filing, and the case shall proceed as provided in these rules.

(C) SUMMONS AND ARREST WARRANT PROCEDURES

When an issuing authority finds grounds to issue process based on a complaint, the issuing authority shall:

(1) issue a summons and not a warrant of arrest when the offense charged is punishable by imprisonment for a term of not more than 1 year, except as set forth in paragraph (C)(2);

(2) issue a warrant of arrest when:

(a) the offense charged is punishable by imprisonment for a term of more than 5 years;

(b) the issuing authority has reasonable grounds for believing that the defendant will not obey a summons;

(c) the summons has been returned undelivered;

(d) a summons has been served and disobeyed by a defendant;

(e) the identity of the defendant is unknown;

(f) a defendant is charged with more than one offense, and one of the offenses is punishable by imprisonment for a term of more than 5 years; or

(3) when the offense charged does not fall within the categories specified in paragraph (C)(1) or (2), the issuing authority may, in his or her discretion, issue a summons or a warrant of arrest.

(D) PRELIMINARY ARRAIGNMENT

(1) When a defendant has been arrested within Philadelphia County in a Municipal Court case, with or without a warrant, the defendant shall be afforded a preliminary arraignment by an issuing authority without unnecessary delay. If the defendant was arrested without a warrant pursuant to paragraph (A)(1)(a) or (b), unless the issuing authority makes a determination of probable cause, the defendant shall not be detained.

(2) In the discretion of the issuing authority, the preliminary arraignment of the defendant may be conducted by using two-way simultaneous audio-visual communication. When counsel for the defendant is present, the defendant must be permitted to communicate fully and confidentially with defense counsel immediately prior to and during the preliminary arraignment.

(3) At the preliminary arraignment, the issuing authority:

(a) shall not question the defendant about the offense(s) charged;

(b) shall give the defendant’s attorney, or if unrepresented the defendant, a copy of the certified complaint;

(c) if the defendant was arrested with a warrant, the issuing authority shall provide the defendant’s attorney, or if unrepresented the defendant with copies of the warrant and supporting affidavit(s) at the preliminary arraignment, unless the warrant and affidavit(s) are not available at that time, in which event the defendant’s attorney, or if unrepresented the defendant, shall be given copies no later than the first business day after the preliminary arraignment; and

(d) also shall inform the defendant:

(i) of the right to secure counsel of choice and the right to assigned counsel in accordance with Rule 122;

(ii) of the day, date, hour, and place for the trial, which shall not be less than 20 days after the preliminary arraignment, unless the issuing authority fixes an earlier date for the trial upon request of the defendant or defense counsel, with the consent of the attorney for the Commonwealth, and that failure to appear without cause at any proceeding for which the defendant’s presence is required, including trial, may be deemed a waiver of the right to be present, and the proceeding may be conducted in the defendant’s absence, and a warrant of arrest shall be issued;

(iii) in a case charging a felony, unless the preliminary hearing is waived by a defendant who is represented by counsel, or the attorney for the Commonwealth is presenting the case to an indicting grand jury pursuant to Rule 556.2, of the date, time, and place of the preliminary hearing, which shall not be less than 14 nor more than 21 days after the preliminary arraignment unless extended for cause or the issuing authority fixes an earlier date upon the request of the defendant or defense counsel with the consent of the complainant and the attorney for the Commonwealth; and that failure to appear without cause for the preliminary hearing will be deemed a waiver by the defendant of the right to be present at any further proceedings before the issuing authority, and that the case shall proceed in the defendant’s absence, and a warrant of arrest shall be issued;

(iv) if a case charging a felony is held for court at the time of the preliminary hearing, that failure to appear without cause at any proceeding for which the defendant’s presence is required, including trial, the defendant’s absence may be deemed a waiver of the right to be present, and the proceeding may be conducted in the defendant’s absence, and a warrant of arrest shall be issued; and

(v) of the type of release on bail, as provided in Chapter 5 Part C of these rules, and the conditions of the bail bond.

(4) After the preliminary arraignment, if the defendant is detained, he or she shall be given an immediate and reasonable opportunity to post bail, secure counsel, and notify others of the arrest. Thereafter, if the defendant does not post bail, he or she shall be committed to jail, as provided by law.

(E) PRELIMINARY HEARING IN CASES CHARGING A FELONY

(1) Except as provided in paragraphs (E)(2) and (E)(3), in cases charging a felony, the preliminary hearing in Municipal Court shall be conducted as provided in Rule 542 (Preliminary Hearing; Continuances) and Rule 543 (Disposition of Case at Preliminary Hearing).

(2) At the preliminary hearing, the issuing authority shall determine whether there is a prima facie case that an offense has been committed and that the defendant has committed it.

(a) Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established.

(b) Hearsay evidence shall be sufficient to establish any element of an offense including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.

(3) If a prima facie case is not established on any felony charges, but is established on any misdemeanor or summary charges, the judge shall remand the case to Municipal Court for trial.

(F) ACCEPTANCE OF BAIL PRIOR TO TRIAL

The Clerk of Courts shall accept bail at any time prior to the Municipal Court trial.

The 2004 amendments make it clear that Rule 1003 covers the preliminary procedures for all non-summary Municipal Court cases, see Rule 1001(A), and cases charging felonies, including the institution of proceedings, the preliminary arraignment, and the preliminary hearing.

See Chapter 5 (Procedure in Court Cases), Parts I (Instituting Proceedings), II (Complaint Procedures), III(A) (Summons Procedures), III(B) (Arrest Procedures in Court Cases), and IV (Proceedings in Court Cases Before Issuing Authorities) for the statewide rules governing the preliminary procedures in court cases, including non-summary Municipal Court cases, not otherwise covered by this rule.

The 2004 amendments to paragraph (A)(1) align the procedures for instituting cases in Municipal Court with the statewide procedures in Rule 502 (Means of Instituting Proceedings in Court Cases).

The 1996 amendments to paragraph (A)(2) align the procedures for private complaints in non-summary cases in Municipal Court with the statewide procedures for private complaints in Rule 506 (Approval of Private Complaints). In all cases in which the affiant is not a law enforcement officer, the complaint must be submitted to the attorney for the Commonwealth for approval or disapproval.

As used in this rule, ‘‘Municipal Court judge’’ includes a bail commissioner acting within the scope of the bail commissioner’s authority under 42 Pa.C.S. § 1123(A)(5).

The procedure set forth in paragraph (C)(3) allows the issuing authority to exercise discretion in whether to issue a summons or an arrest warrant depending on the circumstances of the particular case. Appropriate factors for issuing a summons rather than an arrest warrant will, of course, vary. Among the factors that may be taken into consideration are the severity of the offense, the continued danger to the victim, the relationship between the defendant and the victim, the known prior criminal history of the defendant, etc.

If the attorney for the Commonwealth exercises the options provided by Rule 202, Rule 507, or both, the attorney must file the certifications required by paragraphs (B) of Rules 202 and 507 with the Court of Common Pleas of Philadelphia County and with the Philadelphia Municipal Court.

For the contents of the complaint, see Rule 504.

Under paragraphs (A) and (D), if a defendant has been arrested without a warrant, the issuing authority must make a prompt determination of probable cause before the 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.

Within the meaning of paragraph (D)(2), counsel is present when physically with the defendant or with the issuing authority.

Under paragraph (D)(2), the issuing authority has discretion to order that a defendant appear in person for the preliminary arraignment.

Under paragraph (D)(2), two-way simultaneous audio-visual communication is a form of advanced communication technology.

See Rule 130 concerning venue when proceedings are conducted pursuant to this rule using advanced communication technology.

Paragraph (D)(3)(c) requires that the defendant’s attorney, or if unrepresented the defendant, receive copies of the arrest warrant and the supporting affidavits at the preliminary arraignment. This amendment parallels Rule 540(C). See also Pa.R.Crim.P. 208(a) and 513(A).

Paragraph (D)(3)(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, 515 Pa. 501, 530 A.2d 414 (1987).

The 2012 amendment to paragraph (D)(3)(d)(iii) conforms this rule with the new procedures set forth in Chapter 5, Part E, permitting the attorney for the Commonwealth to proceed to an indicting grand jury without a preliminary hearing in cases in which witness intimidation has occurred, is occurring, or is likely to occur. See Rule 556.2. See also Rule 556.11 for the procedures when a case will be presented to the indicting grand jury.

Paragraphs (D)(3)(d)(ii) and (D)(3)(d)(iv) require that, in all cases at the preliminary arraignment, the defendant be advised of the consequences of failing to appear for any court proceeding. See Rule 602 concerning a defendant’s failure to appear for trial. See also Commonwealth v. Bond, 693 A.2d 220 (Pa. Super. 1997) (‘‘[A] defendant who is unaware of the charges against him, unaware of the establishment of his trial date or is absent involuntarily is not absent ‘without cause.’’’)

Under paragraph (D)(4), after the preliminary arraignment, if the defendant is detained, the defendant must be given an immediate and reasonable opportunity to post bail, secure counsel, and notify others of the arrest. Thereafter, if the defendant does not post bail, he or she must be committed to jail as provided by law.

Paragraphs (D)(3)(d)(iii) and (E) make it clear that, with some exceptions, the procedures in Municipal Court for both preliminary hearings and cases in which the defendant fails to appear for the preliminary hearing are the same as the procedures in the other judicial districts.

For when an arresting officer is required to provide the name and contact information of the victim to the Philadelphia Municipal Court conducting the preliminary arraignment, see 18 P.S. § 11.201(2)(iii)(A).

Paragraph (E) was amended in 2013 to reiterate that traditionally our courts have not applied the law of evidence in its full rigor in proceedings such as preliminary hearings, especially with regard to the use of hearsay to establish the elements of a prima facie case. See the Pennsylvania Rules of Evidence generally, but in particular, Article VIII. Accordingly, hearsay, whether written or oral, may establish the elements of any offense. The presence of witnesses to establish these elements is not required at the preliminary hearing. But compare Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (1990) (plurality) (disapproving reliance on hearsay testimony as the sole basis for establishing a prima facie case. See also Rule 542.

For purposes of modifying bail once bail has been set by a common pleas judge, see Rules 529 and 536.

Official Note

Original Rule 6003 adopted June 28, 1974, effective July 1, 1974; amended January 26, 1977, effective April 1, 1977; amended December 14, 1979, effective April 1, 1980; amended July 1, 1980, effective August 1, 1980; amended October 22, 1981, effective January 1, 1982; Comment revised December 11, 1981, effective July 1, 1982; amended January 28, 1983, effective July 1, 1983; amended February 1, 1989, effective July 1, 1989; rescinded August 9, 1994, effective January 1, 1995. New Rule 6003 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; amended March 22, 1996, effective July 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; amended August 28, 1998, effective immediately; renumbered Rule 1003 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended August 24, 2004, effective August 1, 2005; amended August 15, 2005, effective February 1, 2006; amended April 5, 2010, effective April 7, 2010; amended January 27, 2011, effective in 30 days; amended June 21, 2012, effective in 180 days; Comment revised July 31, 2012, effective November 1, 2012; amended April 25, 2013, effective June 1, 2013; amended May 2, 2013, effective June 1, 2013.

Committee Explanatory Reports:

Report explaining the provisions of the new rule published at 22 Pa.B. 18 (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 Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

Final Report explaining the March 22, 1996 amendments published with the Court’s Order at 26 Pa.B. 1690 (April 13, 1996).

Final Report explaining the August 28, 1998 amendments published with the Court’s Order at 28 Pa.B. 4627 (September 12, 1998).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the May 10, 2002 amendments concerning advanced communication technology published with the Court’s Order at 32 Pa.B. 2591 (May 25, 2002).

Final Report explaining the August 24, 2004 changes clarifying preliminary arraignment and preliminary hearing procedures in Municipal Court cases published with the Court’s Order at 34 Pa.B. 5025 (September 11, 2004).

Final Report explaining the August 15, 2005 amendments to paragraphs (A)(2)(b)(ii) and (D)(3)(d)(ii) published with the Court’s Order at 35 Pa.B. 4918 (September 3, 2005).

Court’s Order adopting the April 5, 2010 amendments to paragraph (D)(3)(d) published at 40 Pa.B. 2012 (April 17, 2010).

Court’s Order of January 27, 2011 amending paragraph (E) concerning hearsay and reducing felony charges at preliminary hearing published at 41 Pa.B. 834 (February 12, 2011).

Final Report explaining the June 21, 2012 amendments to paragraph (D)(3)(d)(iii) concerning indicting grand juries published with the Court’s Order at 42 Pa.B. 4153 (July 7, 2012).

Final Report explaining the July 31, 2012 revision of the Comment changing the citation to Rule 540(B) to Rule 540(C) published with the Court’s Order at 42 Pa.B. 5340 (August 18, 2012).

Final Report explaining the April 25, 2013 amendments to paragraph (E) concerning hearsay published with the Court’s Order at 43 Pa.B. 2562 (May 11, 2013).

Final Report explaining the May 2, 2013 amendments concerning proceedings conducted in the defendant’s absence published with the Court’s Order at 43 Pa.B. 2710 (May 18, 2013).

The provisions of this Rule 1003 amended May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016; amended August 15, 2005, effective February 1, 2006, 35 Pa.B. 4914; amended April 5, 2010, effective April 7, 2010, 40 Pa.B. 2012; amended January 27, 2011, effective in 30 days, 41 Pa.B. 834; amended June 21, 2012, effective in 180 days, 42 Pa.B. 4140; revised July 31, 2012, effective November 1, 2012, 42 Pa.B. 5333; amended April 25, 2013, effective June 1, 2013, 43 Pa.B. 2560; amended May 2, 2013, effective June 1, 2013, 43 Pa.B. 2704; amended November 30, 2023, effective immediately, 53 Pa.B. 7724; amended May 2, 2024, effective October 1, 2024, 54 Pa.B. 2743. Immediately preceding text appears at serial pages (372142), (366973) to (366974) and (417705) to (417707).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1004 Arraignment Prior to Trial. {#sec-rule-1004 omnilex-key=us-pa-regs-official--title-234--Rule 1004}

Arraignment, if not waived by a defendant, shall take place immediately prior to trial.

Official Note

Rule 6004 adopted December 30, 1968, effective January 1, 1969; renumbered Rule 1004 March 1, 2000, effective April 1, 2001.

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).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1005 Pretrial Applications for Relief. {#sec-rule-1005 omnilex-key=us-pa-regs-official--title-234--Rule 1005}

(A) All pretrial applications for relief including those for suppression of evidence may be made orally or in writing. If in writing, a copy of the application shall be submitted prior to trial to the attorney for the Commonwealth.

(B) Pretrial applications shall be heard on the day set for trial immediately prior to the trial. If the decision is adverse to the Commonwealth, the Court shall grant the Commonwealth a continuance upon motion of the attorney for the Commonwealth to give the attorney for the Commonwealth the opportunity to take an appeal.

(C) The Commonwealth’s appeal shall be taken not later than 30 days from the date of the decision on the pretrial application.

(D) After an appeal pursuant to this rule is filed, and the Commonwealth has certified in the notice of appeal that the order will terminate or substantially handicap the prosecution, the Municipal Court shall take no further action in the case, unless otherwise provided in these rules.

For the procedures governing suppression motions in summary cases, see Rule 454(g).

The provisions of this Rule 1005 amended November 9, 2017, effective January 1, 2018, 47 Pa.B. 7181; amended January 8, 2025, effective April 1, 2025, 55 Pa.B. 702. Immediately preceding text appears at serial page (419738).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1006 Notice of Right to Appeal or to Petition for Certiorari; Guilty Plea Challenge Procedure. {#sec-rule-1006 omnilex-key=us-pa-regs-official--title-234--Rule 1006}

(A) Immediately after the imposition of sentence, the judge shall inform the defendant:

(1) in the case of a trial and verdict of guilty:

(a) of the right to file a petition for a writ of certiorari within 30 days without costs or to appeal for trial de novo within 30 days without costs;

(b) of the right to jury trial on appeal; and

(c) that the charge on which the defendant was found guilty in the Municipal Court will be considered by the district attorney as the basis for the preparation of an information after the filing of the notice of appeal;

(2) in the case of a plea of guilty:

(a) of the right to file a motion challenging the validity of the plea or the denial of a motion to withdraw the plea;

(b) of the 10-day time limit within which such motion must be filed;

(c) of the right to be represented by counsel in preparing and litigating the motion and to have counsel appointed in the event the defendant is unable to afford counsel;

(d) of the right to appeal from the final order disposing of the motion within 30 days after such order;

(e) that only the claims raised in the motion may be raised on appeal; and

(3) in any case, of the right to counsel to represent the defendant on appeal and of the right to have counsel appointed to represent the defendant on appeal in the event the defendant is unable to afford counsel.

(B) After a petition for writ of certiorari or notice of appeal for trial de novo is filed, the Municipal Court shall take no further action in the case, unless otherwise provided in these rules.

For the right to file a petition for a writ of certiorari to the court of common pleas, see Article V, Section 26 of the Pennsylvania Constitution, and the Judicial Code, 42 Pa.C.S. § 934. See also Commonwealth v. Speights, 509 A.2d 1263 (Pa. Super. 1986) (petition challenging sufficiency of the evidence), and Commonwealth v. Frazier, 471 A.2d 866 (Pa. Super. 1984) (petition alleging that judge erred in denying motion to suppress). Certiorari is available in non-summary cases only. Compare Rule 460.

Official Note

Rule 6006 adopted December 30, 1968, effective January 1, 1969; amended July 1, 1980, effective August 1, 1980; amended February 21, 1996, effective July 1, 1996; renumbered Rule 1006 and amended March 1, 2000, effective April 1, 2001; amended November 9, 2017, effective January 1, 2018.

Committee Explanatory Reports:

Final Report explaining the February 21, 1996 amendments published with the Court’s Order at 26 Pa.B. 991 (March 9, 1996).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the November 9, 2017 amendment regarding the effect that taking an appeal has on the ability of the Municipal Court to take further action in a case published with the Court’s Order at 47 Pa.B. 7182 (November 25, 2017).

The provisions of this Rule 1006 amended November 9, 2017, effective January 1, 2018, 47 Pa.B. 7181. Immediately preceding text appears at serial pages (366978) and (385527).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1007 Challenge to Guilty Plea. {#sec-rule-1007 omnilex-key=us-pa-regs-official--title-234--Rule 1007}

(A) A motion challenging the validity of a guilty plea or the denial of a motion to withdraw a guilty plea shall be in writing and shall be filed with the sentencing judge within 10 days after imposition of sentence. The motion shall be disposed of promptly.

(B) Execution of sentence shall be stayed and the amount of bail previously determined shall continue until disposition of the motion.

(C) The attorney for the Commonwealth shall be given notice of the motion and an opportunity to respond. The judge may schedule a hearing on the motion.

(D) Upon entry of a final order denying the motion, the judge shall inform the defendant of the right to appeal the order to the Court of Common Pleas within 30 days after the date of the order.

(E) After an appeal pursuant to this rule is filed, the Municipal Court shall take no further action in the case, unless otherwise provided in these rules.

The procedures applicable to the taking and the withdrawal of a plea of guilty are set forth in Rules 590 and 591.

This rule is intended to provide the exclusive procedure for challenging the validity of a guilty plea or the denial of a motion to withdraw a plea. For a discussion of the general principles underlying the rule, see the Comment to Rule 720.

Official Note

Rule 6007 adopted July 1, 1980, effective August 1, 1980; amended March 22, 1993, effective January 1, 1994; renumbered Rule 1007 and amended March 1, 2000, effective April 1, 2001; amended November 9, 2017, effective January 1, 2018.

Committee Explanatory Reports:

Final Report explaining the March 22, 1993 amendments published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the November 9, 2017 amendment regarding the effect that taking an appeal has on the ability of the Municipal Court to take further action in a case published with the Court’s Order at 47 Pa.B. 7182 (November 25, 2017).

The provisions of this Rule 1007 amended November 9, 2017, effective January 1, 2018, 47 Pa.B. 7181. Immediately preceding text appears at serial pages (385527) to (385528).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1008 Contents of Notice of Appeal or Petition for Certiorari. {#sec-rule-1008 omnilex-key=us-pa-regs-official--title-234--Rule 1008}

(A) The notice shall state which method of review is being sought in the court of common pleas by indicating whether it is a notice of appeal or notice of a petition for a writ of certiorari.

(B) The notice shall contain the following information:

(1) The name and address of the defendant.

(2) The date of imposition of sentence.

(3) The charges upon which the defendant was convicted.

(4) The name of the sentencing judge.

The notice form previously set forth in this rule was deleted in 1996 because it is no longer necessary to control the specific form by rule.

Official Note

Rule 6008 adopted December 30, 1968, effective January 1, 1969; amended February 21, 1996, effective July 1, 1996; renumbered Rule 1008 and amended March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the February 21, 1996 amendments published with the Court’s Order at 26 Pa.B. 991 (March 9, 1996)).

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).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1009 Notice to Municipal Court Judge and Attorney for the Commonwealth of Appeal or of Petition for Certiorari. {#sec-rule-1009 omnilex-key=us-pa-regs-official--title-234--Rule 1009}

The Clerk of Municipal Court shall notify the sentencing judge and the attorney for the Commonwealth of the filing of the appeal or the petition for a writ of certiorari.

Official Note

Rule 6009 adopted December 30, 1968, effective January 1, 1969; amended February 21, 1996, effective July 1, 1996; amended August 28, 1998, effective immediately; renumbered Rule 1009 March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

Final Report explaining the February 21, 1996 amendments published with the Court’s Order at 26 Pa.B. 989 (March 9, 1996).

Final Report explaining the August 28, 1998 amendment published with the Court’s Order at 28 Pa.B. 4627 (September 12, 1998).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1010 Procedures for Trial De Novo. {#sec-rule-1010 omnilex-key=us-pa-regs-official--title-234--Rule 1010}

(A) When a defendant appeals after conviction by a Municipal Court judge,

(1) in a non-traffic summary case, upon the filing of the transcript and other papers, the case shall be heard de novo by the judge of the Court of Common Pleas sitting without a jury.

(2) In a Municipal Court case, the attorney for the Commonwealth, upon receiving the notice of appeal, shall prepare an information and the matter shall thereafter be treated in the same manner as any other court case.

(B) If the defendant fails to appear for the trial de novo, the Common Pleas Court judge may dismiss the appeal and thereafter shall enter judgment in the Court of Common Pleas on the judgment of the Municipal Court judge.

(C) Withdrawals of Appeals

(1) If the defendant withdraws the appeal, the Common Pleas Court judge shall enter judgment in the Court of Common Pleas on the judgment of the Municipal Court judge.

(2) In a Municipal Court case, the defendant may withdraw the appeal only with the written consent of the attorney for the Commonwealth.

(D) At the time of sentencing, the Common Pleas Court judge shall:

(1) if the defendant’s sentence includes restitution, a fine, or costs, state:

(a) the amount of the fine and the obligation to pay costs;

(b) the amount of restitution ordered, including

(i) the identity of the payee(s),

(ii) to whom the restitution payment shall be made, and

(iii) whether any restitution has been paid and in what amount; and

(c) the date on which payment is due.

If the defendant is without the financial means to pay the amount in a single remittance, the Common Pleas Court judge may provide for installment payments and shall state the date on which each installment is due;

(2) advise the defendant of the right to appeal to the Superior Court within 30 days of the imposition of sentence, and that, if an appeal is filed, the execution of sentence will be stayed and the Common Pleas Court judge may set bail;

(3) if a sentence of imprisonment has been imposed, direct the defendant to appear for the execution of sentence on a date certain unless the defendant files a notice of appeal within the 30-day period; and

(4) issue a written order imposing sentence, signed by the Common Pleas Court judge. The order shall include the information specified in paragraphs (D)(1) through (D)(3), and a copy of the order shall be given to the defendant.

(E) After entry of judgment pursuant to paragraphs (B) or (C)(1), or after the trial de novo and imposition of sentence, the case shall remain in the Court of Common Pleas for the execution of sentence, including for the collection of any fines and restitution, for the collection of any costs, and for proceedings for violation of probation, intermediate punishment, or parole pursuant to Rule 708.

In any case in which there are summary offenses joined with the misdemeanor charges that are the subject of the appeal, the attorney for the Commonwealth must include the summary offenses in the information. See Commonwealth v. Speller, 458 A.2d 198 (Pa. Super. 1983).

Paragraph (B) makes it clear that the Common Pleas Court judge may dismiss an appeal when the judge determines that the defendant is absent without cause from the trial de novo. If the appeal is dismissed, the Common Pleas Court judge must enter judgment and order execution of any sentence imposed by the Municipal Court judge. Nothing in this rule is intended to preclude the judge from issuing a bench warrant when the defendant fails to appear.

Certain costs are mandatory and must be imposed. See, e.g., Section 1101 of the Crime Victims Act, 18 P.S. § 11.1101.

For the procedures concerning sentences that include restitution in court cases, see Rule 705.1.

Once a judgment is entered and sentence is imposed, paragraph (E) makes it clear that the case is to remain in the Court of Common Pleas for execution of the sentence and collection of any costs, and the case may not be returned to the Municipal Court judge. The execution of sentence includes the collection of any fines and restitution and any proceedings for violation of probation, intermediate punishment, or parole as provided by Rule 708.

Official Note

Rule 6010 adopted December 30, 1968, effective January 1, 1969; amended July 1, 1980, effective August 1, 1980; amended August 28, 1998, effective immediately; renumbered Rule 1010 March 1, 2000, effective April 1, 2001; Comment revised March 9, 2006, effective September 1, 2006; amended February 12, 2010, effective April 1, 2010; amended September 21, 2011, effective November 1, 2011; amended March 9, 2016, effective July 1, 2016.

Committee Explanatory Reports:

Final Report explaining the August 28, 1998 amendment published with the Court’s Order at 28 Pa.B. 4627 (September 12, 1998).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the March 9, 2006 Comment revision concerning joinder of summary offenses with misdemeanor charges published with the Court’s Order at 36 Pa.B. 1385 (March 25, 2006).

Final Report explaining the February 12, 2010 amendments to paragraph (B) concerning the disposition of summary offenses at the court of common pleas published with the Court’s Order at 40 Pa.B. 1068 (February 27, 2010).

Final Report explaining the September 21, 2011 amendments to paragraphs (A)—(C) and adding new paragraphs (D) and (E) concerning the procedures for trials de novo in the Court of Common Pleas published with the Court’s Order at 41 Pa.B. 5353 (October 8, 2011).

Final Report explaining the March 9, 2016 amendments to paragraph (D) concerning required elements of the sentence published with the Court’s Order at 46 Pa.B. 1540 (March 26, 2016).

The provisions of this Rule 1010 amended March 9, 2006, effective September 1, 2006, 36 Pa.B. 1385; amended February 12, 2010, effective April 1, 2010, 40 Pa.B. 1068; amended September 21, 2011, effective November 1, 2011, 41 Pa.B. 5353; amended March 9, 2016, effective July 1, 2016, 46 Pa.B. 1532. Immediately preceding text appears at serial pages (358901) to (358902).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1011 Bail. {#sec-rule-1011 omnilex-key=us-pa-regs-official--title-234--Rule 1011}

(A) Prior to verdict, an existing bail order may be modified by a Municipal Court judge in a Municipal Court case in the same manner as a judge of the court of common pleas may modify a bail order pursuant to Rule 529(c), (d), and (e).

(B) In all cases in which a sentence is imposed, the execution of sentence shall be stayed and the bail previously set shall continue, except as provided in this rule.

(1) If a notice of appeal or a petition for a writ of certiorari is not filed within 30 days, the judge shall direct the defendant to appear before the judge for the execution of sentence.

(2) If a notice of appeal is filed within 30 days, the bail previously set shall continue.

(3) If a petition for a writ of certiorari is filed within 30 days, bail shall be determined as provided in Rule 521(B)(1) and (2).

(C) The attorney for the Commonwealth may make application to the Court of Common Pleas to increase the amount of bail upon cause shown.

Paragraph (A) was added in 1995 to conform the practice for Municipal Court judges modifying a bail order before verdict in Municipal Court cases with the practice set forth in Rule 529 for judges of the common pleas court.

Official Note

Rule 6011 adopted December 30, 1968, effective January 1, 1969; amended July 1, 1980, effective August 1, 1980; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; amended February 21, 1996, effective July 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; renumbered Rule 1011 and amended March 1, 2000, effective April 1, 2001; amended May 19, 2006, effective August 1, 2006.

Committee Explanatory Reports:

Final Report explaining the September 13, 1995 amendments published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

Final Report explaining the February 21, 1996 amendments published with the Court’s Order at 26 Pa.B. 991 (March 9, 1996).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the May 19, 2006 amendments correcting cross-references to Rule 529 published with the Court’s Order at 36 Pa.B. 2633 (June 3, 2006).

The provisions of this Rule 1011 amended May 19, 2006, effective Aug. 1, 2006, 36 Pa.B. 2631; amended January 4, 2022, effective July 1, 2022, 52 Pa.B. 346. Immediately preceding text appears at serial pages (402537) to (402538).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1012 Recording and Transcribing Municipal Court Proceedings; Admissibility of Testimony at Trial De Novo. {#sec-rule-1012 omnilex-key=us-pa-regs-official--title-234--Rule 1012}

(A) Rule 115 and Pa.R.J.A. No. 4007, relating to the recording and transcribing of court proceedings, shall apply to Municipal Court case proceedings after the preliminary arraignment or, when a defendant appears pursuant to a summons, after the defendant’s first appearance.

(B) No testimony produced at the Municipal Court trial or at any pretrial hearing in the Municipal Court shall be admissible at the trial de novo except in those cases in which the defendant was represented by counsel and had the opportunity to cross examine, and the witness afterwards dies, or is out of the jurisdiction so that the witness cannot be effectively served with a subpoena, or cannot be found, or becomes incompetent to testify for any legally sufficient reason properly proven.

Official Note

Rule 6012 adopted December 30, 1968, effective January 1, 1969; amended April 24, 1981, effective July 1, 1981; renumbered Rule 1012 and amended March 1, 2000, effective April 1, 2001; amended August 3, 2020, effective October 1, 2020.

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. 1478 (March 18, 2000).

Final Report explaining the August 3, 2020 amendment regarding requests for transcripts pursuant to Pa.R.J.A. No. 4007 published with the Court’s Order at 50 Pa.B. 4124 (August 15, 2020).

The provisions of this Rule 1012 amended August 3, 2020, effective October 1, 2020, 50 Pa.B. 4123. Immediately preceding text appears at serial page (389122).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1013 Prompt Trial—Municipal Court. {#sec-rule-1013 omnilex-key=us-pa-regs-official--title-234--Rule 1013}

(A)(1) Trial in a Municipal Court case shall commence no later than 180 days from the date on which the preliminary arraignment is held.

(2) Trial in a Municipal Court case in which the defendant appears pursuant to a summons shall commence no later than 180 days from the date on which the complaint is filed.

(3) Trial in a case that commenced as a Common Pleas Court case but was later ordered to be tried in Municipal Court shall commence no later than 180 days from the date on which the preliminary arraignment is held or 60 days from the date on which the order is made, whichever is greater.

(4) Trial in a case which is transferred from the juvenile court to the Municipal Court shall commence no later than 180 days from the date of filing the transfer order.

(B) For the purpose of this rule, trial shall be deemed to commence on the date the Municipal Court judge calls the case to trial, or the defendant tenders a plea of guilty or nolo contendere.

(C)(1)(a) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the Court orally or in writing for an order extending the time for commencement of trial. The defendant shall have the right to be heard on the Commonwealth’s motion.

(b) If the motion is in writing, a copy shall be served upon the defendant through the defendant’s attorney, if any.

(c) Such motion shall allege facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the Court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.

(d) Any order granting a motion for extension shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and the court’s business, and the record shall so indicate.

(2) It shall be the responsibility of the Court Administrator of Philadelphia, in addition to any prior listings, to list cases for trial not more than 40 days nor less than 20 days prior to the expiration of the period specified in paragraph (A). If the case cannot be tried at that listing, there shall be a judicial determination as to when trial shall commence.

(D) In determining the period for commencement of trial, there shall be excluded therefrom:

(1) any period of time for which the defendant expressly waives Rule 1013; and

(2) such period of delay at any stage of the proceedings as results from:

(a) the unavailability of the defendant or counsel; and

(b) any continuance granted at the request of the defendant or counsel.

(E) At any time before trial, the defendant or counsel may apply to the court orally or in writing for an order dismissing the charges with prejudice on the ground that this rule has been violated. If in writing, a copy of such motion shall be served upon the attorney for the Commonwealth. The attorney for the Commonwealth shall have the right to be heard on the motion for dismissal. Any order granting such motion shall dismiss the charges with prejudice and discharge the defendant.

(F) Nothing in this rule shall be construed to modify any time limit contained in any statute of limitations.

(G) A trial de novo in the Court of Common Pleas shall commence within a period of 120 days after the notice of appeal from the Municipal Court is filed. In all other respects the provisions of Rule 600 shall apply to such trials in the Court of Common Pleas.

(H) When a retrial is required in Municipal Court, the retrial shall commence within 90 days after the date of the order requiring the retrial.

(I) When a judge has ordered that a defendant’s participation in the ARD program be terminated pursuant to Rule 318, trial shall commence within 90 days of the termination order.

For a discussion of the general principles underlying this rule and for other explanatory comments applicable to it, see the Comment to Rule 600. It should be noted, however, that in several technical respects the text of this rule differs from that of Rule 600.

Paragraph (A)(2) is intended to apply only when a defendant appears in compliance with a summons. It is not intended to apply when a defendant is arrested after non-compliance with or return of a summons.

Paragraph (A)(3) is intended to provide a minimum 60-day period for trial of those cases which become Municipal Court cases when, at the preliminary hearing, in court, or otherwise after preliminary arraignment, all offenses punishable by more than five years imprisonment are discharged.

The time for trial in cases that originate as Court of Common Pleas cases and are transferred to the Municipal Court but are subsequently transferred back to the Court of Common Pleas are governed by Rule 600. See Commonwealth v. Far, 616 Pa. 149, 46 A.3d 709 (2012).

‘‘Order requiring the retrial,’’ as used in paragraph (H) is intended to include, for example, the declaration of a mistrial, or the withdrawal, rejection of, or successful challenge to a guilty plea.

Official Note

Rule 6013 adopted June 28, 1974, effective prospectively as set forth in paragraphs (A)(1) and (A)(2) of this rule; amended July 1, 1980, effective August 1, 1980; amended October 22, 1981, effective January 1, 1982; the amendment to paragraph (D) as it regards exclusion of defense-requested continuances was specifically made effective as to continuances requested on or after January 1, 1982, and paragraph (H), which provides the time for retrials, was specifically made effective as to retrials required by orders entered on or after January 1, 1982; amended September 3, 1993, effective January 1, 1994; renumbered Rule 1013 and amended March 1, 2000, effective April 1, 2001; amended August 8, 2002, effective January 1, 2003; amended June 26, 2003, effective July 1, 2003; Comment revised July 1, 2013, effective August 1, 2013; amended October 24, 2013, effective immediately.

Committee Explanatory Reports:

Report explaining the September 3, 1993 amendments published with the Court’s Order at 23 Pa.B. 4492 (September 25, 1993).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the August 8, 2002, amendments to paragraphs (A)(2) and (A)(3) expanding the time for trial from 120 days to 180 days published with the Court’s Order at 32 Pa.B. 4124 (August 24, 2002).

Final Report explaining the June 26, 2003 amendments to paragraphs (A)(4) and (A)(5) expanding the time for trial from 120 to 180 days, and to paragraph (G) expanding the time for trial from 90 days to 120 days published with the Court’s Order at 33 Pa.B. 3364 (July 12, 2003).

Final Report explaining the July 1, 2013 Comment revision cross-referencing Commonwealth v. Far published with the Court’s Order at 43 Pa.B. 4063 (July 20, 2013).

Final Report explaining the October 24, 2013 amendment deleting paragraph (A)(1) as obsolete published with the Court’s Order at 43 Pa.B. 6657 (November 9, 2013).

The provisions of this Rule 1013 amended August 8, 2002, effective January 1, 2003, 32 Pa.B. 4122; amended June 26, 2003, effective July 1, 2003, 33 Pa.B. 3363; amended July 1, 2013, effective August 1, 2013, 43 Pa.B. 4062; amended October 24, 2013, effective immediately, 43 Pa.B. 6657. Immediately preceding text appears at serial pages (368083) to (368085).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1030 Scope of Summary Municipal Court Traffic Division Rules. {#sec-rule-1030 omnilex-key=us-pa-regs-official--title-234--Rule 1030}

Except as provided in these rules or by local rule authorized by these rules, or elsewhere in Chapter 10, all criminal proceedings in which a person is accused of one or more summary traffic offenses only or violations of municipal traffic ordinances shall proceed as provided in Chapter 4 of the Rules of Criminal Procedure.

These rules were developed in 2005 to accommodate the procedures Philadelphia Traffic Court implemented to address the issues in summary traffic cases unique to Philadelphia, to more efficiently handle the vast number of summary traffic cases, and to protect the defendants’ rights to a fair and prompt disposition of their cases.

For the procedures governing suppression motions in summary cases, see Rule 454(g).

The jurisdiction and functions of the Philadelphia Traffic Court were transferred to the Philadelphia Municipal Court Traffic Division in 2013, see Act 17 of 2013, P. L. 55, No. 17 (June 19, 2013) and 42 Pa.C.S. § § 102, 325, 1121, 1127, 1302, 1321.

See Rule 105 for the procedures for promulgating local rules.

The provisions of this Rule 1030 adopted September 9, 2005, effective February 1, 2006, 35 Pa.B. 5239; amended May 7, 2014, effective immediately, 44 Pa.B. 3056; amended January 8, 2025, effective April 1, 2025, 55 Pa.B. 702. Immediately preceding text appears at serial page (382201).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1031 Institution of Proceedings in Summary Traffic Cases. {#sec-rule-1031 omnilex-key=us-pa-regs-official--title-234--Rule 1031}

(A) Summary traffic cases in Philadelphia shall be instituted by:

(1) issuing a citation to the defendant as provided in Rules 405—409;

(2) filing a citation with the Philadelphia Municipal Court Traffic Division as provided in Rules 410—414; or

(3) arresting without a warrant when arrest is specifically authorized by law as provided in Rules 440 and 441.

(B) When provided by local rule as an exception to the trial notice procedures in Rule 408(B), the law enforcement officer also shall give the defendant written notice of the date and time and location set for the summary trial when a citation is issued to the defendant as provided in Rule 405.

(1) The trial notice shall include an explanation that if the defendant enters a guilty plea and pays the fine and costs indicated on the citation within the specified time, the summary trial will be cancelled.

(2) The trial notice also shall include notice to the defendant that:

(a) failure to appear for the trial shall constitute consent for the trial to be conducted in the defendant’s absence;

(b) if the defendant is found guilty, the collateral deposited will be forfeited and applied to payment of the fine, costs, and restitution; and

(c) the defendant will have the right to appeal within 30 days for a trial de novo in the court of common pleas.

See Rule 403 for the contents of the citation.

The trial notice permitted in paragraph (B) may be added to the citation form.

Paragraph (B)(2)(b) was amended in 2016 to clarify that collateral may be forfeited for the payment of restitution as well as for the fine and costs that have been assessed by an issuing authority.

See Rule 105 for the procedures for promulgating local rules.

Official Note

Adopted September 9, 2005, effective February 1, 2006; amended May 7, 2014, effective immediately; amended June 10, 2016, effective August 1, 2016.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 35 Pa.B. 5242 (September 24, 2005).

Final Report explaining the May 7, 2014 amendments concerning the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published with the Court’s Order at 44 Pa.B. 3065 (May 24, 2014).

Final Report explaining the June 10, 2016 addition of ‘‘restitution’’ to the list of items for which collateral may be forfeited after conviction published with the Court’s Order at 46 Pa.B. 3238 (June 25, 2016).

The provisions of this Rule 1031 adopted September 9, 2005, effective February 1, 2006, 35 Pa.B. 5239; amended May 7, 2014, effective immediately, 44 Pa.B. 3056; amended June 10, 2016, effective August 1, 2016, 46 Pa.B. 3235. Immediately preceding text appears at serial pages (372143) to (372144).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1032 Pleas in Response to Citation. {#sec-rule-1032 omnilex-key=us-pa-regs-official--title-234--Rule 1032}

In addition to the procedures in Rules 407 and 412 for entering a plea in a summary traffic case, the defendant, by means of electronic transmission as provided by local rule, may notify the Municipal Court Traffic Division of his or her plea, and either pay the fine and costs or post the requisite collateral.

See Rule 105 for the procedures for promulgating local rules.

Official Note

Adopted September 9, 2005, effective February 1, 2006; amended May 7, 2014, effective immediately.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 35 Pa.B. 5242 (September 24, 2005).

Final Report explaining the May 7, 2014 amendments concerning the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published with the Court’s Order at 44 Pa.B. 3065 (May 24, 2014).

The provisions of this Rule 1032 adopted September 9, 2005, effective February 1, 2006, 35 Pa.B. 5239; amended May 7, 2014, effective immediately, 44 Pa.B. 3056. Immediately preceding text appears at serial page (351650).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1033 Procedures When Defendant Arrested with Warrant. {#sec-rule-1033 omnilex-key=us-pa-regs-official--title-234--Rule 1033}

(A) When a defendant is arrested pursuant to a warrant issued as provided in Rule 430, the police officer without unnecessary delay shall take the defendant before the proper issuing authority and shall proceed as provided in this rule and by local rule.

(B) When the defendant appears in person or appears by means of two-way simultaneous audio-video equipment, the judge or arraignment court magistrate shall:

(1) inform the defendant concerning the specific citations to which the defendant has not entered a plea as required by Rules 407 and 412;

(2) inform the defendant concerning the specific citations that have been adjudicated that have outstanding fines or costs for which the defendant is in default of a payment order or a payment plan; and

(3) advise the defendant of the right to retain counsel, and if, in the event of a conviction, there is a reasonable likelihood of a sentence of imprisonment and the defendant does not have the financial ability to retain counsel, advise the defendant that counsel will be appointed by Traffic Division as provided in Rule 1035.

(C) When the defendant appears before an arraignment court magistrate, the arraignment court magistrate shall schedule the next court proceeding before the Traffic Division and give the defendant a hearing notice or subpoena, set collateral as provided in Rule 1034 and local rule, and release the defendant, or if the defendant is unable to post the collateral, commit the defendant.

(D) When the defendant appears before a Traffic Division judge or hearing officer,

(1) if the matter is not ready to proceed, the Traffic Division judge or hearing officer shall schedule the next court proceeding and give the defendant a scheduling order, and shall release the defendant on recognizance unless the issuing authority has reasonable grounds to believe that the defendant will not appear, in which case, the issuing authority may fix the amount of collateral, as provided in Rules 452, 1034, and local rule, to be deposited to ensure the defendant’s appearance on the new date and hour fixed for trial, and if the defendant does not post the collateral, commit the defendant.

(a) In determining whether it is necessary to set collateral and what amount of collateral should be set, the Traffic Division judge or hearing officer shall consider the factors listed in Rule 523. The amount of collateral shall not exceed the full amount of the fine and costs.

(b) If collateral has been set, the Traffic Division judge or hearing officer shall state in writing the reason(s) why any collateral other than release on recognizance has been set and the facts that support a determination that the defendant has the ability to pay monetary collateral.

(c) If collateral is set and the defendant does not post collateral, the defendant shall not be detained without a trial longer than 72 hours or the close of the next business day if the 72 hours expires on a non-business day.

(2) If the matter is ready to proceed,

(a) when the defendant is arrested pursuant to a warrant issued as provided in Rule 430(A) or (B)(1)(a) or (B)(2), the defendant shall enter a plea. If the defendant pleads guilty, the Traffic Division judge or hearing officer shall impose sentence. If the defendant pleads not guilty, the summary trial shall be conducted.

(b) When the defendant is arrested following a trial in absentia pursuant to a warrant issued as provided in Rule 430(B)(3)(c) and (B)(4),

(i) the Traffic Division judge or hearing officer shall conduct an immediate hearing to determine defendant’s financial ability to pay the full amount due.

(ii) If the Traffic Division judge or hearing officer determines the defendant is financially unable to pay the full amount due, the judge may order an installment payment plan as provided in Rule 456(C)(2).

(iii) If the judge or hearing officer determines the defendant is financially able to pay the full amount due, and that there is a likelihood that imprisonment will be imposed at the conclusion of the hearing, the judge or hearing officer shall advise the defendant of the right to retain counsel, and, if the defendant does not have the financial ability to retain counsel, advise the defendant that counsel will be appointed by Traffic Division as provided in Rule 1035. A hearing may be held if retained or appointed counsel is available; otherwise, the hearing shall be rescheduled for a date certain, and the defendant shall be released on collateral as provided in Rule 1034.

(iv) At the conclusion of the hearing, the Traffic Division judge or hearing officer shall proceed as provided in Rule 456(C)(3).

(c) When the defendant is arrested after defaulting on the payment of fine or costs or restitution pursuant to a warrant issued as provided in Rule 430(B)(3)(b) and (B)(4),

(i) the Traffic Division judge or hearing officer shall conduct an immediate hearing to determine whether the defendant is financially able to pay the outstanding fine and costs as previously ordered.

(ii) If the judge or hearing officer determines the defendant is financially unable to pay as previously ordered, the judge may issue a revised payment order or payment plan.

(iii) If the judge or hearing officer determines the defendant is financially able to pay as previously ordered, and that there is a likelihood that imprisonment will be imposed at the conclusion of the hearing, the judge shall advise the defendant of the right to retain counsel, and if, the defendant does not have the financial ability to retain counsel, advise the defendant that counsel will be appointed by Traffic Division as provided in Rule 1035. A hearing may be held if retained or appointed counsel is available; otherwise, the hearing shall be rescheduled for a date certain, and the defendant shall be released on collateral as provided in Rule 1034.

(iv) At the conclusion of the hearing, the Traffic Division judge or hearing officer shall proceed as provided in Rule 456(C)(3).

(d) When the defendant is arrested on multiple warrants in cases involving both unadjudicated citations and adjudicated citations with outstanding balances, the matter shall proceed as provided in paragraph (D)(2)(a) (summary trial), or paragraphs (D)(2)(b) or (D)(2)(c) (default hearings). These cases may be joined and the proceeding scheduled before the same Traffic Division judge or hearing officer.

Pursuant to Philadelphia Municipal Court Local Rule 540 and Traffic Division Local Rule 1033, when a defendant is arrested outside the normal business hours of Traffic Division, the defendant is to be taken without unnecessary delay before a Philadelphia Municipal Court arraignment court magistrate who shall proceed as provided in paragraph (C) and in Traffic Division Local Rule 1033.

‘‘Proper issuing authority’’ as used in this rule is the Traffic Division judge or arraignment court magistrate assigned to conduct these proceedings as provided in this rule, Municipal Court Local Rule 540, and Traffic Division Local Rule 1033.

For the procedures for contempt proceedings in Traffic Division cases, see Rules 140, 141, and 142.

For the summary appeal procedures, see Rules 460, 461, and 462.

See Rule 105 for the procedures for promulgating local rules.

Official Note

Adopted September 9, 2005, effective February 1, 2006; amended May 7, 2014, effective immediately; amended April 10, 2015, effective July 10, 2015.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 35 Pa.B. 5242 (September 24, 2005).

Final Report explaining the May 7, 2014 amendments concerning the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published with the Court’s Order at 44 Pa.B. 3065 (May 24, 2014).

Final Report explaining the April 10, 2015 amendment concerning the setting of collateral pending summary trial published with the Court’s Order at 45 Pa.B. 2045 (April 25, 2015).

The provisions of this Rule 1033 adopted September 9, 2005, effective February 1, 2006, 35 Pa.B. 5239; amended May 7, 2014, effective immediately, 44 Pa.B. 3056; amended April 10, 2015, effective July 10, 2015, 45 Pa.B. 2040. Immediately preceding text appears at serial pages (372145) to (372147).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1034 Collateral. {#sec-rule-1034 omnilex-key=us-pa-regs-official--title-234--Rule 1034}

(A) Except as provided in this rule, the procedures for collateral shall be as provided in Rule 452.

(B) When determining the amount of collateral, if any,

(1) if the defendant does not have a prior history of failure to appear for scheduled hearings, or there are other reasonable grounds to believe that the defendant will appear, or the defendant is without adequate resources to deposit collateral, the Traffic Division judge, hearing officer or arraignment court magistrate shall consider releasing the defendant on his or her own recognizance, or sign own bail (‘‘SOB’’), or on a nominal amount of collateral.

(2) If the defendant has a prior history of failing to appear for Traffic Division scheduled hearings, and notice of the hearings was served personally on defendant, the Traffic Division judge, hearing officer or arraignment court magistrate may set collateral in an amount not to exceed the collateral that may be required for the payment of defendant’s unadjudicated citations and the balance of outstanding fines and costs owed on adjudicated citations.

When the collateral is set in a monetary amount, the Traffic Division judge, hearing officer or arraignment court magistrate may permit the defendant to be released from custody when 10% of the amount has been posted.

When determining the amount of collateral to set in paragraph (B)(2), the judge, hearing officer or arraignment court magistrate must take into consideration the defendant’s financial resources and ability to post the amount set. The amount of collateral must be reasonable.

See Rule 105 for the procedures for promulgating local rules.

Official Note

Adopted September 9, 2005, effective February 1, 2006; amended May 7, 2014, effective immediately.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 35 Pa.B. 5242 (September 24, 2005).

Final Report explaining the May 7, 2014 amendments concerning the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published with the Court’s Order at 44 Pa.B. 3065 (May 24, 2014).

The provisions of this Rule 1034 adopted September 9, 2005, effective February 1, 2006, 35 Pa.B. 5239; amended May 7, 2014, effective immediately, 44 Pa.B. 3056. Immediately preceding text appears at serial pages (314400) and (346227).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1035 Appointment of Counsel. {#sec-rule-1035 omnilex-key=us-pa-regs-official--title-234--Rule 1035}

(A) When the Traffic Division judge or hearing officer has preliminarily determined that there is a likelihood that imprisonment will be imposed at the conclusion of a summary traffic proceeding,

(1) a hearing may be held if retained or appointed counsel is available; or

(2) if the defendant is without financial resources or is otherwise unable to employ counsel, the judge shall continue the proceeding, issue a scheduling order, and either appoint counsel or direct the defendant to report for a financial interview to determine eligibility to court-appointed counsel.

(B) When the defendant reports for the financial interview to determine eligibility to court-appointed counsel, the defendant shall provide supporting documentation, such as a driver’s license, a DPW card, pay stubs, and any other relevant information. Upon review of the information provided by the defendant during the financial interview, the Traffic Division judge or hearing officer shall enter an appropriate order.

(C) Counsel’s appointment shall terminate at the conclusion of the Traffic Division proceeding, unless the Traffic Division judge sentences the defendant to a period of incarceration, in which case, counsel’s appointment shall continue through any appeal for a trial de novo in the Court of Common Pleas.

(D) At the time a sentence is imposed that includes a period of incarceration, if the defendant is represented by private counsel, the Traffic Division judge shall advise the defendant that, in the event private counsel ceases to represent the defendant after the imposition of the sentence and before the sentence is carried out, if the defendant is unable to afford counsel, he or she has the right to have counsel appointed to represent the defendant to file an appeal for a trial de novo, and if appointed, counsel’s appointment shall continue through the trial de novo in the Court of Common Pleas.

No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 535 U. S. 654 (2002), Scott v. Illinois, 440 U. S. 367 (1979), and Argersinger v. Hamlin, 407 U. S. 25 (1972).

See Rules 460, 461, and 462 for the procedures for summary case appeals.

Official Note

Adopted September 9, 2005, effective February 1, 2006; amended May 7, 2014, effective immediately.

Committee Explanatory Reports:

Final Report explaining the provisions of the new rule published with the Court’s Order at 35 Pa.B. 5242 (September 24, 2005)

Final Report explaining the May 7, 2014 amendments concerning the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published with the Court’s Order at 44 Pa.B. 3065 (May 24, 2014).

The provisions of this Rule 1035 adopted September 9, 2005, effective February 1, 2006, 35 Pa.B. 5239; amended May 7, 2014, effective immediately, 44 Pa.B. 3056. Immediately preceding text appears at serial pages (346227) to (346228).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1036 Traffic Court Hearing Officers. [Rescinded]. {#sec-rule-1036 omnilex-key=us-pa-regs-official--title-234--Rule 1036}

(A) As provided in this rule, Philadelphia Municipal Court Traffic Division hearing officers may be appointed to hear cases and issue adjudications in connection with prosecutions for summary offenses arising under Title 75 (relating to vehicles) and ordinances enacted pursuant to Title 75.

(1) Hearing officers are ‘‘issuing authorities’’ only for purposes of conducting summary trials, accepting pleas, conducting trials in absentia, setting collateral, and conducting post-trial proceedings, including but not limited to, establishing or re-establishing payment plans, monitoring compliance with payment plans, holding warrant hearings, and performing additional duties as may be identified by local rule.

(2) Hearing officers shall not conduct summary trials or hearings if there is a likelihood that imprisonment will be imposed at the conclusion of a summary traffic proceeding.

(B) The Philadelphia Municipal Court Traffic Division by local rule shall establish the qualifications and educational requirements for the position of Traffic Division hearing officer.

(C) The Code of Conduct for Employees of the Unified Judicial System shall be applicable to the Philadelphia Municipal Court Traffic Division hearing officers.

The position of ‘‘Philadelphia Municipal Court Traffic Division hearing officer’’ was established by legislation in 2013 as part of the transfer of jurisdiction and functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court Traffic Division. See Act 17 of 2013, P. L. 55, No. 17 (June 19, 2013) and 42 Pa.C.S. § § 102, 325, 1121, 1127, 1302, 1321.

Official Note

New Rule 1036 adopted May 7, 2014, effective immediately.

Committee Explanatory Reports:

Final Report explaining new Rule 1036 concerning hearing officers of the Philadelphia Municipal Court Traffic Division published with the Court’s Order at 44 Pa.B. 3065 (May 24, 2014).

The provisions of this Rule 1036 adopted May 7, 2014, effective immediately, 44 Pa.B. 3056.

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

234 Pa. Code Rule 1037 Appeal from Summary Conviction. {#sec-rule-1037 omnilex-key=us-pa-regs-official--title-234--Rule 1037}

(A) When a defendant appeals after the entry of a guilty plea or a conviction in any Traffic Division summary proceeding, upon the filing of the transcript and other papers by the Traffic Division, the Court of Common Pleas may schedule a status or settlement conference prior to the de novo summary trial.

(1) In the event the attorney for the Commonwealth or a designee and the defendant reach a negotiated plea, the plea may be entered before a Trial Commissioner and, upon approval by a judge of the Court of Common Pleas, the negotiated sentence will be recorded.

(2) In the event a negotiated plea is not approved by the court, the case shall be heard de novo by a judge of the Court of Common Pleas sitting without a jury.

(B) The attorney for the Commonwealth may appear and assume charge of the prosecution. When no attorney appears on behalf of the Commonwealth, the affiant may be permitted to ask questions of any witness who testifies.

(C) In appeals from Traffic Division summary proceedings, the law enforcement officer who observed the alleged offense must appear and testify. The failure of a law enforcement officer to appear and testify shall result in the dismissal of the charges unless:

(1) the defendant waives the presence of the law enforcement officer in open court on the record;

(2) the defendant waives the presence of the law enforcement officer by filing a written waiver signed by the defendant and defense counsel, or the defendant if proceeding pro se, with the clerk of courts; or

(3) the trial judge determines that good cause exists for the law enforcement officer’s unavailability and grants a continuance.

(D) If the defendant fails to appear for the trial de novo,

(1) when the appeal is from a mandatory sentence of imprisonment, the Court of Common Pleas judge shall dismiss the appeal, enter judgment in the Court of Common Pleas on the judgment of the Traffic Division judge, and issue a bench warrant and a commitment for the defendant. Execution of the sentence shall commence immediately upon defendant’s arrest; and

(2) in all other cases, the Common Pleas Court judge shall dismiss the appeal and enter the judgment in the Court of Common Pleas on the judgment of the Traffic Division judge or hearing officer.

(E) If the defendant withdraws the appeal, the Court of Common Pleas judge shall enter the judgment in the Court of Common Pleas on the judgment of the Traffic Division judge or hearing officer.

(F) At the time of sentencing, the Court of Common Pleas judge shall:

(1) if the defendant’s sentence includes a fine or costs and the defendant has the financial means to pay the amount in a single remittance, the judge shall instruct the defendant to make the payment at the Philadelphia Municipal Court Traffic Division. If the defendant is without the financial means to pay the amount in a single remittance, the judge shall instruct the defendant to contact the Traffic Division to establish an installment payment plan;

(2) advise the defendant of the right to appeal to the Superior Court within 30 days of the imposition of sentence, and that, if an appeal is filed, the execution of sentence will be stayed and the judge may set bail;

(3) if a sentence of imprisonment has been imposed, direct the defendant to appear for the execution of sentence on a date certain unless the defendant files a notice of appeal within the 30-day period; and

(4) issue a written order imposing sentence, signed by the judge. The order shall include the information specified in paragraphs (F)(1)—(3), and a copy of the order shall be given to the defendant and to the Traffic Division.

(G) After sentence is imposed by the Court of Common Pleas judge, and either after the expiration of the time to file an appeal to the appellate courts, or, if a sentence of imprisonment has been imposed, after the execution of the sentence of imprisonment, the case shall be returned to the Traffic Division for the collection of any outstanding fine and costs and for all other appropriate action.

This rule was adopted in 2009 to provide the procedures for appeals from the Traffic Division to the Court of Common Pleas of the First Judicial District. Except as provided in this rule, the procedures of Rules 460, 461 and 462, governing appeals for a trial de novo in summary cases, shall apply to summary case appeals in the Traffic Division.

For purposes of this rule, ‘‘judgment’’ means the determination of guilty and any sentence imposed on the defendant.

The date upon which payment is due upon a sentence of a fine or costs ordinarily will be 30 days following imposition of sentence.

Official Note

Rule 1037 adopted October 16, 2009, effective February 1, 2010; amended May 7, 2014, effective immediately.

Committee Explanatory Reports:

Final Report explaining new Rule 1037 concerning procedures for the appeal from the Philadelphia Traffic Court published with the Court’s Order at 39 Pa.B. 6329 (October 31, 2009).

Final Report explaining the May 7, 2014 amendments concerning the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published with the Court’s Order at 44 Pa.B. 3065 (May 24, 2014).

The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

History

• Source: The provisions of this Rule 1037 adopted October 16, 2009, effective February 1, 2010, 39 Pa.B. 6327; amended May 7, 2014, effective immediately, 44 Pa.B 3056. Immediately preceding text appears at serial pages (346228) to (346230).

Chapter 11 ABOLITIONS AND SUSPENSIONS

234 Pa. Code Rule 1100 Abolition of Practice and Procedure Under Repealed Statutes. {#sec-rule-1100 omnilex-key=us-pa-regs-official--title-234--Rule 1100}

The practice and procedure provided in all former statutes governing criminal procedure within the scope of these rules, which have been repealed by the Judiciary Act Repealer Act, and which are now part of the common law of this Commonwealth by virtue of Section 3(b) of the Act, 42 P. S. § 20003(b), are hereby abolished and shall not continue as part of the common law of this Commonwealth.

This rule is comparable to Pa.R.C.P. 2100(b) and Pa.R.A.P. 5101(f), and is intended to prevent any statutory criminal procedures repealed by the Judiciary Act Repealer Act and not replaced by the Rules of Criminal Procedure from prevailing over the provisions of the rules.

Official Note

Rule 9998 adopted January 28, 1983, effective July 1, 1983; renumbered Rule 1100 and amended March 1, 2000, effective April 1, 2001.

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).

234 Pa. Code Rule 1101 Suspension of Acts of Assembly. {#sec-rule-1101 omnilex-key=us-pa-regs-official--title-234--Rule 1101}

This rule provides for the suspension of the following Acts of Assembly:

(1) The Act of June 15, 1994, P. L. 273, No. 45, § 1, 42 Pa.C.S. § § 4137, 4138, and 4139, which provides, inter alia, that any punishment imposed for contempt will be ‘‘automatically stayed for a period of 10 days from the date of the imposition of the punishment during which time an appeal of the action’’ of a district justice, a Pittsburgh Magistrates Court judge, or a Philadelphia Traffic Court judge ‘‘may be filed with the court of common pleas of the judicial district,’’ and which is implemented by Rules 140, 141, and 142, is suspended only insofar as the Act is inconsistent with the 30-day appeal period and 30-day automatic stay period set forth in Rule 141.

(2) The Act of April 29, 1959, P. L. 58, § 1209, 75 P. S. § 1209, repealed by Act of June 17, 1976, P. L. 162, No. 81, § 7 and replaced by Sections 6322, 6323, 6324, and 6325 of the Vehicle Code (75 Pa.C.S. § § 6322—6325), are suspended insofar as these sections are inconsistent with Rule 470.

(3) The Act of July 1, 1987, P. L. 180, No. 21, § 2, 42 Pa.C.S. § 1520, is suspended insofar as the Act is inconsistent with Rules 300, 301, 302, and Rules 310 through 320.

(4) The Public Defender Act, Act of December 2, 1968, P. L. 1144, No. 358, § 1 et seq. as amended through Act of December 10, 1974, P. L. 830, No. 277, § 1, 16 P. S. § 9960.1 et seq., is suspended only insofar as the Act is inconsistent with Rule 122.

(5) Section 5720 of the Wiretapping and Electronic Surveillance Control Act, Act of October 4, 1978, P. L. 831, No. 164, 18 Pa.C.S. § 5720, is suspended as inconsistent with Rule 573 only insofar as the section may delay disclosure to a defendant seeking discovery under Rule 573(B)(1)(g); and Section 5721(b) of the Act, 18 Pa.C.S. § 5721(b), is suspended only insofar as the time frame for making a motion to suppress is concerned, as inconsistent with Rules 579 and 581.

(6) Sections 9731, 9732, 9733, 9734, 9735, 9736, 9751, 9752, and 9759 of the Sentencing Code, 42 Pa.C.S. § § 9731, 9732, 9733, 9734, 9735, 9736, 9751, 9752, and 9759 are suspended as being inconsistent with the rules of Chapter 7.

(7) The Act of November 21, 1990, P. L. 588, No. 138, § 1, 42 Pa.C.S. § 8934, which authorizes the sealing of search warrant affidavits, and which is implemented by Rule 211, is suspended only insofar as the Act is inconsistent with Rules 205, 206, and 211.

This rule is derived from former Rules 39, 159, 340, 1415, and 2020, the rules previously providing for the suspension of legislation.

Official Note

Former Rule 39 adopted October 1, 1997, effective October 1, 1998; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 1101. Former Rule 159 adopted September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; amended February 1, 1989, effective July 1, 1989; amended April 10, 1989, effective July 1, 1989; amended January 31, 1991, effective July 1, 1991; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 1101. Former Rule 340 combined previous Rules 321 and 322, which were the prior suspension rules, and was adopted June 29, 1977, effective September 1, 1977; amended April 24, 1981, effective June 1, 1981; amended January 28, 1983, effective July 1, 1983; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 1101. Former Rule 1415 adopted July 23, 1973, effective 90 days hence; paragraph (g) added March 21, 1975, effective March 31, 1975; amended August 14, 1995, effective January 1, 1996; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 1101. Former Rule 2020 adopted September 3, 1993, effective January 1, 1994; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 1101. New Rule 1101 adopted March 1, 2000, effective April 1, 2001.

Committee Explanatory Reports:

FORMER RULE 39: Final Report explaining the provisions of new Rule 39 published with the Court’s Order at 27 Pa.B. 5401 (October 18, 1997).

FORMER RULE 159:

Report explaining the January 31, 1991 amendments to former Rule 159 published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).

FORMER RULE 1415:

Final Report explaining the August 14, 1995 amendments to former Rule 1415 published with the Court’s Order at 25 Pa.B. 3472 (August 26, 1995).

FORMER RULE 2020:

Report explaining the provisions of former Rule 2020 published at 21 Pa.B. 3681 (August 17, 1991).

NEW RULE 1101:

Final Report explaining the reorganization and renumbering of the rules and the provisions of Rule 1101 published at 30 Pa.B. 1477 (March 18, 2000).