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Title 234--RULES OF CRIMINAL PROCEDURE

[234 PA. CODE CHS. 1 AND 5--9]

Order Promulgating New Rule 801, Renumbering Rules 801--810, and Approving the Revision of the Comments to Rules 120, 122, 521, 576, 604, 720, 901, and 904; No. 310 Criminal Procedural Rules; Doc. No. 2

[34 Pa.B. 3105]

Order

Per Curiam:

   Now, this 4th day of June, 2004, it is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that:

   (1)  New Rule of Criminal Procedure 801 is promulgated;

   (2)  Rules of Criminal Procedure 801, 802, 803, 804, 805, 806, 807, 808, 809, and 810 are renumbered as Rules 802, 803, 804, 805, 806, 807, 808, 809, 810, and 811 respectively; and

   (3)  the revisions of the Comments to Rules of Criminal Procedure 120, 122, 521, 576, 604, 720, 901, and 904 are approved,

   all in the following form.

   This Order shall be processed in accordance with Pa.R. J. A. 103(b), and shall be effective November 1, 2004.

   It Is Further Ordered, from the date of this Order until 18 months after the effective date of this Order, that the educational requirements in new 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 minimum 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.

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

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

PART B. Counsel

Rule 120. Attorneys--Appearances and Withdrawals.

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Comment

   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.

   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).

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   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.

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Rule 122. Assignment of Counsel.

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Comment

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   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 (C)(1) retains in the issuing authority or judge the power to assign counsel regardless of indigency or other factors when, in the issuing authority's or judge's opinion, the interests of justice require it.

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   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.

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CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES

PART C. Bail

Rule 521. Bail After Finding of Guilt.

   (A)  BEFORE SENTENCING

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   (2)  Other Cases

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   (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:

*      *      *      *      *

   (ii)  that the defendant poses a danger to any other person or to [he] the community or to himself or herself.

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Comment

   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 [809] 810 and [810] 811.

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   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, 2004, effective November 1, 2004.

Committee Explanatory Reports:

   Final Report explaining the March 22, 1993 amendments to former Rule 4010B(3), included in new Rule [4009] 521(B)(3), published with the Court's Order at 23 Pa.B. 1699 (April 10, 1993).

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PART F(1). Motion Procedures

Rule 576. Filing and Service by Parties.

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Comment

   Paragraph (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 [801] 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).

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   Official Note:  Former Rule 9022 adopted October 21, 1983, effective January 1, 1984; amended March 22, 1993, effective January 1, 1994; amended July 9, 1996, effective September 1, 1996; renumbered Rule 576 and amended March 1, 2000, effective April 1, 2001. Former 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. Rules 576 and 577 combined and amended March 2, 2004, effective July 1, 2004; Comment revised June 4, 2004, effective November 1, 2004.

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CHAPTER 6. TRIAL PROCEDURES IN COURT CASES

PART A. General Provisions

Rule 604. Opening Statements and Closing Arguments.

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Comment

   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 [805] 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.

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CHAPTER 7. POST-TRIAL PROCEDURES IN COURT CASES

PART B. Post-Sentence Procedures

Rule 720. Post-Sentence Procedures; Appeal.

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Comment

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   For post-sentence procedures after a sentence of death has been imposed, see Rule [810] 811.

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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 [insures] 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.

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   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.

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CHAPTER 8. SPECIAL RULES FOR CASES IN WHICH DEATH SENTENCE IS AUTHORIZED

Rule 801. Qualifications for Defense Counsel in Capital Cases.

   In all cases in which the district attorney has filed a Notice of Aggravating Circumstances pursuant to Rule 802, before an attorney may participate in 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 which were tried to verdict before a jury. 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 shall be a murder, including manslaughter and vehicular homicide, or a felony of the first or second degree.

   (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.

   (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.

Comment

   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.

   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 (A)(1)(c) of this rule.

   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.

Rule [801] 802. Notice of Aggravating Circumstances.

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   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.

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Rule [802] 803. Guilty Plea Procedure.

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   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.

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Rule [803] 804. Procedure When Jury Trial is Waived.

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   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.

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Rule [804] 805. No Sealed Verdict.

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   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.

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Rule [805] 806. Closing Arguments at Sentencing Hearing.

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   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.

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Rule [806] 807. Sentencing Verdict Slip.

   (A)  JURY

   (1)  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 [807] 808.

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   (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, the trial judge shall complete a sentencing verdict slip in the form provided by Rule [808] 809.

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   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.

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Rule [807] 808. Form for Jury Sentencing Verdict Slip.

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   Official Note:  Rule 358A adopted February 1, 1989, effective July 1, 1989; renumbered Rule 807 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 808 June 4, 2004, effective November 1, 2004.

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Rule [808] 809. Form for Trial [Jidge] Judge Sentencing Verdict Slip.

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   Official Note:  Rule 358B adopted February 1, 1989, effective July 1, 1989; renumbered Rule 808 and Comment revised March 1, 2000, effective April 1, 2001; renumbered Rule 809 June 4, 2004, effective November 1, 2004.

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Rule [809] 810. Sentence.

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Comment

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   Once sentence has been imposed, the time for filing the post-sentence motion begins to run. See Rules [810] 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.

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Rule [810] 811. Post-Sentence Motion.

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Comment

   This rule, Rule [809] 810, Rule 704, and Rule 720 replace previous Rule 359.

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   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.

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CHAPTER 9. POST-CONVICTION COLLATERAL PROCEEDINGS

Rule 901. Initiation of Post-Conviction Collateral Proceedings.

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Comment

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   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 [810] 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.

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   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.

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Rule 904. Entry of Appearance and Appointment of Counsel; In Forma Pauperis.

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Comment

*      *      *      *      *

   Paragraph (G) 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.

   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).

   Official Note:  Previous Rule 1504 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 Rule 1507. Present Rule 1504 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; amended January 21, 2000, effective July 1, 2000; renumbered Rule 904 and amended March 1, 2000, effective April 1, 2001; amended February 26, 2002, effective July 1, 2002; Comment revised March 12, 2004, effective July 1, 2004; Comment revised June 4, 2004, effective November 1, 2004.

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[Pa.B. Doc. No. 04-1058. Filed for public inspection June 18, 2004, 9:00 a.m.]



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