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CHAPTER 5. PRETRIAL PROCEDURES
IN COURT CASES

PART B(1). Complaint Procedures

Rule 509. Use of Summons or Warrant of Arrest in Court Cases.

   If a complaint charges an offense [which] 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 [punishable by a sentence to imprisonment of not more than one year] is a misdemeanor of the first degree, except as set forth in paragraph (2);

   (2)  issue a warrant of arrest when:

   (a)  [the offense charged is punishable by a sentence to imprisonment of more than five years] 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 immediate physical harm to any other person or to himself or herself; or

   [(c)] (d)  * * *

   [(d)] (e)  * * *

   [(e)] (f)  the identity of the defendant is unknown[;].

   [(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); or

   (4)  when a defendant is charged with more than one offense and one of such offenses is punishable by a sentence to imprisonment for more than five years, issue a warrant of arrest.]

Comment

   [This rule provides for the mandatory use of a summons instead of a warrant in court cases except in special circumstances as specified therein. This change of procedure is provided for relatively minor cases even though they are indictable.

   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 518(B), a summons shall be issued.]

   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).

   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; amended       , 2004, effective       , 2004.

Committee Explanatory Reports:

*      *      *      *      *

   Report explaining proposed new Rule 117 published at 33 Pa.B. 5613 (November 12, 2003.) Supplemental Report explaining proposed amendments concerning in which cases a summons or a warrant are issued published at 34 Pa.B. 4421 (August 14, 2004).

PART B(3). Arrest Procedures in Court Cases

(b). Arrests Without Warrant

Rule 519. Procedure in Court Cases Initiated by Arrest Without Warrant.

*      *      *      *      *

   (B)  RELEASE

   (1)  [When the arresting officer deems it appropriate, the] The officer [may] 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] first degree;

   [(b)  the defendant is a resident of the Commonwealth;

   (c)] (b)  the defendant poses no threat of immediate physical harm to any other person or to himself or herself; and

   [(d)] (c)  the arresting officer has reasonable grounds to believe that the defendant will appear as required [; and].

   [(e)  the defendant does not demand to be taken before an issuing authority.]

   (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, [a summons, not a warrant of arrest, shall be issued and the case] the issuing authority shall proceed as provided in Rule [510] 509.

Comment

*      *      *      *      *

   Paragraph (B)(1) [provides an exception to the requirement that a defendant be afforded a preliminary arraignment after a warrantless arrest. It permits an] 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 1994, this exception applied to all DUI cases, but in other cases was only available at the election of individual judicial districts. With the 1994 amendments, the exception is now an option available to arresting officers statewide and] Prior to the 2004 amendments, the release provision in paragraph (B) was optional. With the 2004 amendments, release is mandatory if the three criteria are met, and this requirement may not be [prohibited] modified by local rule.

   ''Reasonable grounds'' as used in paragraph (B)(1)(b) 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, contact the proper issuing authority to determine when the issuing authority will be available to conduct the preliminary arraignment. 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 post-arrest procedures authorized by law.

*      *      *      *      *

   [Appropriate circumstances for following the procedure under paragraph (B)(1) may vary. Among the factors that may be taken into account are whether the defendant resides in the Commonwealth, and whether he or she can safely be released without danger to self or others.]

*      *      *      *      *

   [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.]

*      *      *      *      *

   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       , 2004, effective       , 2004.

Committee Explanatory Reports:

*      *      *      *      *

   Report explaining proposed new Rule 117 published at 33 Pa.B. 5613 (November 12, 2003.) Supplemental Report explaining proposed amendments concerning in which cases a defendant must be promptly released published at 34 Pa.B. 4421 (August 14, 2004).

PART C(1). Release Procedures

Rule 525. Bail Bond.

   (A)  A bail bond is a document [executed by a defendant, and, when applicable, one or more sureties,] 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)  prepare the bail bond; 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 incarceration.

   (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.

   [(B)] (E)  * * *

   [(C)] (F)  The defendant shall not be released until he or she [executes] signs the bail bond.

   [(D) A] (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.

*      *      *      *      *

   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       , 2004, effective       , 2004.

Committee Explanatory Reports:

*      *      *      *      *

   Report explaining proposed addition of new paragraph (C) concerning the bail authority's responsibility to prepare the bail bond published at 33 Pa.B. 5613 (November 12, 2003.) Supplemental Report explaining the proposed published at 34 Pa.B. 4421 (August 14, 2004).

PART C(2). General Procedures In All Bail Cases

Rule 535. Receipt for Deposit; Return of Deposit.

   (A)  [The issuing authority or the clerk of courts who accepts a deposit of cash in satisfaction of a monetary condition of bail shall give the depositor an itemized receipt, and shall note on the transcript or in the list docket entries and the bail bond the amount deposited and the name of the person who made the deposit.] 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 [such] 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 [shall be] 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 on the docket the amount deposited and the name of the person who made the deposit, and shall place the bond in the criminal case file.

*      *      *      *      *

Comment

*      *      *      *      *

   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.

   A deposit of cash to satisfy a defendant's monetary bail condition that is made by a person acting as a surety for the defendant may not be retained to pay for the defendant's court costs and/or fines. See Commonwealth v. McDonald, 382 A.2d 124 (Pa. 1978).

   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.

*      *      *      *      *

   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 [535] 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        , 2004, effective       , 2004.

Committee Explanatory Reports:

*      *      *      *      *

   Report explaining the proposed changes to the rule correlative to the changes in proposed new Rule 117 published at 33 Pa.B. 5613 (November 12, 2003.) Supplemental Report explaining the proposed published at 34 Pa.B. 4421 (August 14, 2004).

SUPPLEMENTAL REPORT

Proposed New Pa.R.Crim.P. 117, Correlative Amendments to Pa.Rs.Crim.P. 131, 132, 431, 441, 509, 519, 525, and 535, Correlative Revision of the Comment to Pa.R.Crim.P. 203, Renumbering Rule 117 as Rule 118 and Rule 118 as Rule 119

Coverage:  Issuing Warrants; Preliminary Arraignment and Summary Trial; Arrests Without Warrant and Release; and setting And
Accepting Bail

I.  INTRODUCTION

   The Criminal Procedural Rules Committee's original proposal2 was for a new Pa.R.Crim.P. 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail); and for correlative amendments to Pa.Rs.Crim.P. 131 (Location of Proceedings Before Issuing Authority), 132 (Continuous Availability and Temporary Assignment of Issuing Authorities), 525 (Bail Bond), and 535 (Receipt for Deposit; Return of Deposit); and the renumbering of current Rule 117 as Rule 118 and current Rule 118 as Rule 119. In this Supplemental Report, the Committee is explaining several changes to proposed new Rule 117, and the addition of a number of proposed correlative amendments to Pa.Rs.Crim.P. 413 (Procedure When Defendant Arrested with Warrant), 441 (Procedure Following Arrest without Warrant), 509 (Use of Summons or Warrant of Arrest in Court Cases), and 519 (Procedure in Court Cases Initiated by Arrest without Warrant), and a correlative revision of the Comment to Rule 203 (Requirements for Issuance).3

   The core of the proposal as published remains the same.4 The major changes in this supplemental proposal address a number of the issues raised in the publication responses, as well as some fine tuning by the Committee. Briefly, these changes include:5

   *  modifications to Rules 117, 203, 509, and 519 making the rules clearer concerning when the issuing authoritymust conduct after-hours proceedings, giving the issuing authority some discretion with regard to the actual time to conduct after-hours proceedings

   *  cross-references in the Rule 117 Comment to Rules 203, 509, and 519 providing examples of situations that would not require an issuing authority's immediate availability and when it would be appropriate for the police officer to call and determine when the issuing authority will be available for that case

   *  amendments to Rule 509 modifying the criteria for when a summons is to be issued and when an arrest warrant is to be issued following the filing of a complaint in a court case

   *  amendments to Rule 519 modifying the criteria for release of the defendant in court cases following an arrest without a warrant, and making the release provisions mandatory rather than discretionary with the police officer

   *  changes to Rules 430, 431, and 441 that address the issue of after-hours availability of issuing authorities in summary cases by (1) distinguishing between arrest warrants that institute proceedings and arrest warrants that are bench warrants, (2) establishing specific bench warrant procedures for summary cases, (3) establishing time limits in Rule 431 for the execution of summary case warrants, and (4) amending Rule 441 modifying the criteria for the release of a defendant in a summary case following an arrest without a warrant and making the release provisions mandatory rather than discretionary with the police officer

   *  changes to Rules 525 and 535 that (1) require the issuing authority to sign the bail bond verifying the conditions of bail before sending the bail bond with the defendant to the prison, (2) require the individual who releases the defendant to sign the bail bond indicating he or she released the defendant, and (3) caution that the posting of real estate may not be feasible outside normal business hours given the complexities of posting realty for bail

   In all other respects, the rules as published remain the same.

II.  DISCUSSION

1.  Rule 117

   As explained in the Introduction, the core aspects of the Rule 117 proposal remain the same:

   (1)  the president judges are responsible for ensuring that the coverage needs of the judicial district are met;

   (2)  there are three categories of coverage requirements for issuing authorities: continuous coverage by issuing authorities to handle search warrants and arrest warrants; one of the systems of coverage provided in the rule to conduct summary trials and preliminary arraignments following arrests, set collateral or bail, and accept complaints; coverage during normal business hours for all other matters handled by the issuing authorities;

   (3)  there are four systems of coverage that a president judge may chose from for the conduct of the proceedings: a traditional on-call system providing continuous coverage; an ''after-hours court'' or ''night court'' staffed by an on-duty issuing authority and staff; a regional on-call system; and a schedule of specified times for after-hours coverage when the ''duty'' issuing authority will be available to conduct business; and

   (5)  the president judges are required to designate the individual or individuals to provide coverage pursuant to Rule 520(B) to admit defendants to bail on any day and any time.

   The Committee is proposing the following changes to Rule 117 to address some of the issues raised in the publication correspondence:

   (1)  a clarification in paragraph (A)(2) and (B) that the president judge may chose one or a combination of systems of coverage enumerated in paragraph (B) to provide coverage for the proceedings set forth in paragraph (A)(2);

   (2)  a change in terminology from ''district justice'' to ''issuing authority'' to make it clear the Rule 117 provisions apply not only to district justices but to all members of the minor judiciary and common pleas court judges when sitting as district justices;

   (3)  additional language explaining in the rule and Comment when an issuing authority will be ''available'' permitting an issuing authority to communicate in person or by using advanced communication technology in the appropriate circumstances;

   (4)  an additional provision in the Comment explaining there are situations when a police officer should not demand an issuing authority's immediate availability, and should call to see when the issuing authority will be available; and

   (5)  a cautionary provision in the Comment noting, given the complexities of posting realty for bail, the posting of real estate may not be feasible outside normal business hours.6

2.  Search Warrants; Arrest Warrants in Court Cases

   The Committee is proposing correlative changes to Rules 203 (Requirements of Issuance), 509 (Use of Summons or Warrant of Arrest in Court Cases), and 519 (Procedure in Court Cases Initiated by Arrest Without Warrant) that address a major area of concern raised in the publication correspondence: what ''continuous coverage'' means, and whether district justices are required to make themselves available immediately for every call from law enforcement regardless of whether the nature of the matter really necessitates immediate availability. The correspondents suggested the issuing authority should be ''on call'' to answer the after-hours phone calls, but then should have discretion to determine whether the call necessitates immediate availability, and if not, to set a reasonable time when the issuing authority will be available to conduct the proceeding. The Committee re-examined the rules with this suggestion in mind. We agreed providing the issuing authority with some discretion in establishing their availability within the parameters of Rule 117 is a reasonable idea, and concluded that changes to Rules 203, 509, and 516 to accommodate this concept. The proposed changes discussed below provide guidance in court cases to both law enforcement officers and issuing authorities concerning the types of cases when it is necessary for issuing authorities to be available ''at all times'' after-hours, and the types of cases the issuing authorities would have discretion to set reasonable times when they will be available.

a.  Search Warrant Procedures

   Proposed new Rule 117(A)(1) includes a provision requiring ''continuous coverage'' for the issuance of search and arrest warrants, reflecting one of the generally accepted principles in criminal justice few question even though the search warrant rules do not specifically state this premise. In reconsidering the ''continuous availability'' provision and search warrants, the Committee noted Rule 203(E) requires additional probable cause before a nighttime search may be authorized and Rule 205 provides 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.'' Based on this rule language, the Committee reasoned these current restrictions concerning night-time searches support the conclusion that issuing authorities should be able to exercise discretion in determining when they will be available after-hours to issue search warrants. In these situations, the law enforcement officer should call the issuing authority to determine when the issuing authority will be available. This phone-in process will afford the issuing authority an opportunity to discuss the matter with law enforcement and decide the urgency of the request.

   In view of these considerations, the Committee is proposing a revision to the Rule 203 Comment explaining that ordinarily search warrants should be requested during the normal business hours of the issuing authority. In an extraordinary circumstance, the law enforcement officer should call the issuing authority to determine when he or she will be available to issue the search warrant. In addition, we are including in the Rule 117 Comment a cross-reference to Rule 203(E) to emphasize that, in most cases, the police should not request a search warrant outside the normal business hours of the issuing authority unless the matter falls within the nighttime search requirements.

b.  Arrest Procedures in Court Cases

   The Committee also re-examined the rule procedures related to arrests with and without a warrant, specifically Rule 509 (Use of Summons or Warrant of Arrest in Court Cases), which sets forth the criteria for the issuing authority to use when determining whether to issue a summons or an arrest warrant, and Rule 519 (Procedure in Court Cases Initiated by Arrest without Warrant), which sets forth the criteria the police officer is to use when determining whether to release the defendant or bring the defendant before the issuing authority for a preliminary arraignment. The Committee considered (1) the substantive and procedural requirements for a prompt preliminary arraignment are only triggered when there has been an arrest, and (2) Rules 509 and 519 provide for non-custodial proceedings in certain cases involving misdemeanors.7 After reviewing these ''exceptions'' to the arrest procedures, the current criteria in Rules 509 and 519 when these exceptions may be used, and the offenses that are graded misdemeanors, the Committee concluded Rules 509 and 519 should be the same concerning the grade of misdemeanor that would trigger the mandatory summons provisions in Rule 509 and the mandatory release provisions in Rule 519, and therefore both rules should be amended to expand the application of the ''exceptions'' to cases in which the ''most serious offense is a misdemeanor of the first degree.'' See Rule 509(1) and Rule 519(B)(1)(a).

   Correlative to these changes to Rules 509 and 519, the Committee is proposing some changes to the respective Comments. We agreed the usual procedure when the case meets the Rule 509 summons requirements would be for the police officer to proceed during the normal business hours of the issuing authority with whom the officer will file the complaint, and this is explained in the Rule 509 Comment.

   The Committee also is proposing a correlative changes the Rule 519 Comment explaining in those cases in which it is necessary to detain the defendant, the police officer should contact the issuing authority who will conduct the preliminary arraignment to determine when the issuing authority will be available. This initial contact will afford the issuing authority and police officer an opportunity to review the status of the case.

Rule 509

   In addition to the changes the Committee is proposing for Rule 509(1) that would require the issuing authority to issue a summons and not a warrant when the most serious offense charged is a misdemeanor of the first degree, the Committee is proposing the following correlative changes to Rule 509:

   (1)  paragraph (2)(a) will be amended to require an arrest warrant when ''one or more of the offenses charged is a felony or murder;''

   (2)  a new paragraph (2)(c) would add as a consideration when an arrest warrant should be issued rather than a summons, cases in which the defendant poses a threat of any physical harm to any other person or to himself or herself; and

   (3)  current paragraphs (3) and (4) and the current Comment provisions will be deleted as no longer necessary in view of the changes to paragraphs (1) and (2).

Rule 519

   The Committee also is proposing some additional correlative changes to Rule 519(B). The Committee noted the concept of prompt release following an arrest without a warrant in Rule 519(B) was originally added to the rules in 1979 to apply only to drunk driving cases in the discretion of the police officer. The procedure subsequently was expanded in 1981 to apply other misdemeanor cases by local option, and in 1994 to apply uniformly statewide.8 The reasons offered in the 1981 Report in support of the prompt release provision--the substantial burden the requirement of a prompt preliminary arraignment in misdemeanor cases places on the local police, the district justices, and the defendant--remain valid today, suggesting the time is ripe to propose another expansion of the rule to permit the prompt release of defendants in all misdemeanor cases. The Committee reassessed the discretionary aspect of the provision and the criteria that must be met for release, and agreed once the police officer determines the defendant meets the criteria for release, the prompt release should be mandatory. From the members' experience and from our research, we did not discern any reasons in support of maintaining the discretionary nature of the release provision. We, therefore, are proposing paragraph (B) be amended to require the police officer to release the defendant when the defendant satisfies the criteria set forth in the rule.

   In reviewing the five criteria set forth in paragraph (B)(1), the members concluded the residency requirement in paragraph (a) and the criteria that the defendant does not demand to be taken before the issuing authority in paragraph (e) are unnecessary because the police officer should be considering these two criteria when making a judgment whether there are reasonable grounds to believe the defendant will appear as required, the criteria in paragraph (d). Accordingly, the Committee is proposing Rule 519(B) be amended to require the police officer to promptly release a defendant following an arrest without a warrant when (1) the most serious offense is a misdemeanor of the first degree, (2) the defendant poses no threat of immediate physical harm to any other person or to himself or herself, and (3) the arresting officer has reasonable grounds to believe the defendant will appear as required. The Comment includes an explanation of what would be considered ''reasonable grounds'' as a guide to the police officer.

3.  Summary Case Arrest Procedures

   A major issue raised in the publication responses concerned the continuous availability requirement as applied to summary trials. This has been a difficult issue throughout the development of the Rule 117 proposal with strong views on both sides of the issue--those concerned about defendants in a summary cases being unnecessarily detained pending the summary trial, and those concerned about the unnecessary burden on the magisterial district courts and the police in these cases involving less serious offenses. Sensitive to the concerns expressed about the impact of the current summary case arrest procedures, and cognizant about the impact any changes in the procedures could have, the Committee explored possible changes to lessen the burden on the minor judiciary and police while protecting the rights of the defendant.

   The Committee reviewed the summary warrant procedures in Rules 430 and 431, and noted that most of the cases when summary arrest warrants are authorized under Rules 430 and 431 are cases in which the defendant has failed to do something--failed to pay the fines and costs or failed to appear, cases more akin to the bench warrant cases in common pleas court. As with court cases, the Committee thought these summary bench warrant situations should be treated differently procedurally than the warrants issued to initiate summary cases. Although a defendant arrested pursuant to a bench warrant is entitled to a hearing within a reasonable amount of time, these cases do not fall within the constitutional requirement of appearing before the issuing authority without unnecessary delay that applies to arrests that initiate the proceedings.

   Another aspect of the issues related to the summary warrant procedures concerns when the warrants are executed. From time to time, the Committee has examined the feasibility of limiting the execution of summary case arrest warrants to specific hours, such as between 6 am and 10 pm, which is found in other jurisdictions' rules.9 The Committee considered that the basis for summary case warrants ordinarily does not necessitate the warrant be executed at all hours, and, therefore, it would be reasonable to establish the hours when the warrant may be executed that would fall either during the normal business hours of the issuing authority or at such times that a defendant would not be unnecessarily detained.

   The Committee also reviewed Rule 441, and considered the suggestion, which has been raised with the Committee at various times, that the requirement that the defendant must be a resident of the Commonwealth to be considered for prompt release is unnecessary and could be deleted.10

Rule 430

   Agreeing that the summary case rules should distinguish between warrants to initiate proceedings, ''arrest warrants,'' and ''bench warrants,'' the Committee is proposing that Rule 430 be divided into two sections: warrants to initiate summary proceedings and warrants that would be issued in all the other circumstances enumerated in Rule 430, paragraphs (A)(1), (B), and (C). Paragraph (A) will address only the warrants that initiate proceedings. New paragraph (B) will address bench warrants, incorporating the provisions of current Rule 430(A)(1), (B), (C), and (D).

Rule 431

   Rule 431 currently sets forth the procedures to be used when a summary case warrant is executed, and does not distinguish between arrest warrants and bench warrants. To clarify the distinction and establish different procedures for bench warrants, the Committee is proposing several changes to the rule.

   Paragraph (A) is being amended to be an introductory paragraph that will be applicable to all summary case warrants issued for the arrest of the defendant. A new paragraph (A)(2) establishes the time limitation for the execution of summary case warrants--between the hours of 6 am and 10 pm.11 There are two exceptions to the times set. First, the president judge is authorized to extend the hours. If the president judge extends the hours, the time extension must be done by local rule in compliance with Rule 105. The other exception is when there are extraordinary circumstances, but only after the police officer has received authorization from the issuing authority to execute the warrant after-hours. The Committee believes establishing the time limitation and requiring that the police officer communicate with the district justice before executing a warrant after-hours will alleviate many of the concerns of the publication correspondents by significantly reducing the number of times a district justice is called out to conduct a summary trial after-hours.

   Paragraph (B) sets forth the procedures when the warrant initiates proceedings. The procedures are, for the most part, the procedures in current Rule 431. Noting the rule encourages police officer to accept the defendant's plea and the fines and costs or collateral rather than taking the defendant before the issuing authority, the Committee agreed to limit the cases when the police officer may take the defendant in to those cases in which the defendant is unable to pay, further emphasizing that accepting the pleas and payments is the preferred procedure in summary cases. A final change to paragraph (B) addresses a recurring problem raised with the Committee at different times: ensuring executed warrants are removed from the court and police systems. The Committee is adding, as a new paragraph (4), the requirement that the issuing authority immediately vacate the warrant and order that notice of the vacated warrant be given to all computer networks.

   Paragraph (C) sets forth the new bench warrant procedures. New paragraph (C)(1) enumerates the same options to be considered when executing a summary bench warrant that are in current Rule 431(B), with the three payment options set out first to encourage the police to accept payments rather than taking the defendant into custody. New paragraph (C)(2) is the same as current Rule 431(C).

   Paragraph (C)(3) establishes the new procedures when a defendant is taken into custody on a bench warrant in a summary case. Paragraph (3) requires the defendant to be taken for the bench warrant hearing before the proper issuing authority if available. Paragraph (3)(a) permits the use of two-way simultaneous audio-visual communication to conduct the hearing.

   Paragraph (3)(b)--(d) set forth the procedures when the bench warrant hearing cannot be conducted immediately. In those cases in which the bench warrant hearing cannot be conducted immediately, the defendant is to be taken to the county jail, and the authority in charge of the county jail must notify the proper issuing authority that the defendant is in custody. In these cases, the bench warrant hearing must be conducted no later than the end of the next business day. If the bench warrant hearing is not conducted within this time frame, the bench warrant expires by operation of law and the defendant must be released after being given a notice to appear before the proper issuing authority on the next business day. In all cases, either at the conclusion of the bench warrant hearing or if the bench warrant expires by operation of law, notice of the vacated or expired warrant must be given to all computer networks into which the bench warrant has been entered.

   The Comment elaborates on some of the new bench warrant provisions. The Comment points out that the president judge, in determining the system of coverage for his or her judicial district pursuant to Rule 117, could require the defendant to be taken to night court if there is an established night court in lieu of taking the defendant to the county jail following an after-hours arrest. In these cases, the defendant would be given a notice to appear in the proper issuing authority's office the next business day or the opportunity to pay the full amount of fines and costs. Similarly, if the issuing authority is unavailable when the defendant appears in this scenario, the defendant should receive a notice to appear for the trial or hearing on another day or be given the opportunity to pay.

Rule 441

   The Committee is proposing changes to Rule 441 that are the same as or comparable to the changes discussed above for Rule 519. The prompt release provisions are mandatory if the criteria in paragraph (B) are met, and the residency requirement is deleted, and ''reasonable grounds'' is explained in the Comment.

   In addition to the changes correlative to the Rule 519 changes, the Committee is proposing changes to paragraph (C) to distinguish the procedures in those cases in which a defendant is taken into custody during the normal business hours of the issuing authority and outside the normal business hours. The current procedures in paragraph (C) apply when the defendant is taken before the issuing authority during normal business hours. However, if the arrest is made outside normal business hours, new paragraph (C)(2) requires the police officer to promptly contact the issuing authority to determine when he or she will be available to proceed under this rule. See also the Rule 117 discussion above.

4.  Bail-related Issues: Rule 525

   Several of the individuals who commented on the Committee's published proposal raised concerns about the proposed changes to Rule 525 that provided for the preparation of the bail bond by the issuing authority and sending the bond to the place of incarceration when the defendant is unable to post the bail at the time it is set. They expressed concern about sending an unexecuted bail bond in these cases, interpreting the requirement for the bond to be ''executed'' to mean signed by the bail authority. The Committee noted current Rule 525 does not require the signature of the bail authority; only the defendant and any sureties are required to execute the bond. See Rule 525(A). In view of the concerns raised in the publication responses, the Committee re-examined Rule 525 and agreed to propose a few changes that will address these concerns as well as provide further clarification of the procedures when the defendant is unable to post the bail at the time it is set. We are proposing a new paragraph (B) that will require the bail authority at the time bail is set to prepare the bond and to sign it verifying the conditions the bail authority has imposed. In addition, as an added precaution against potential abuses, the Committee is proposing the additional requirement that the person who releases the defendant when the bail is posted is to sign the bail bond indicating he or she released the defendant.

[Pa.B. Doc. No. 04-1476. Filed for public inspection August 13, 2004, 9:00 a.m.]

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2  See 33 Pa.B. 5607 (11/15/03) and the Atlantic Reporter advanced sheets, 833 A.2d (11/21/03).

3  In addition, the Comment to Rule 119 would be revised to reference bench warrant hearings.

4 See the Introduction, Background, and first part of the discussion sections of the Committee's November 2003 explanatory Report for the explanation of the development and the core aspects of the proposal.

5  There are no changes to the published version of Rules 118, 131, or 132.

6  A similar cautionary provision is being added to the Rule 535 Comment.

7  Rule 509 authorizes the issuance of a summons rather than an arrest warrant in certain cases and Rule 519 authorizes the police officer to release a defendant in lieu of taking the defendant for a preliminary arraignment in certain cases.

8  See discussion of the historical development of this procedure in the Committee's explanatory Reports at 9 Pa.B. 2326 (July 14, 1979), 11 Pa.B. 495 (January 31, 1981), and 24 Pa.B. 4342 (August 27, 1994).

9  We also discussed a procedure requiring the police officer to release the defendant on ROR when the warrant is executed after these hours. However, in view of the other changes the Committee is proposing, this suggestion was not deemed necessary.

10  See discussion of this issue in the Rule 519 (B)(1)(b) section above.

11  The Committee agreed to use the 6-10 time period because it is consistent with the concept of ''daytime'' defined for the service of search warrants in Rule 205(5).



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