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Title 234—RULES OF
CRIMINAL PROCEDURE

[ 234 PA. CODE CH. 5 ]

Proposed New Pa.R.Crim.P. 556.13, Proposed Amendment of Pa.R.Crim.P. 556.11 and Proposed Revision of the Comment to Pa.R.Crim.P. 502, 513, 516, 517 and 518

[48 Pa.B. 507]
[Saturday, January 20, 2018]

 The Criminal Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania the adoption of new Rule 556.13 (Procedures Following Execution of Warrant of Arrest Issued Following Indictment), the amendment of Rule 556.11 (Proceedings When Case Presented to Grand Jury) and the revision of the Comment to Rules 502 (Instituting Proceedings in Court Cases), 513 (Requirements for Issuance; Dissemination of Arrest Warrant Information), Rule 516 (Procedure in Court Cases When Warrant of Arrest is Executed Within Judicial District of Issuance), 517 (Procedure in Court Cases When Warrant of Arrest is Executed Outside Judicial District of Issuance), and 518 (Using Advanced Communication Technology in Court Cases When Warrant of Arrest is Executed Outside Judicial District of Issuance) for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.

 Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They neither will constitute a part of the rules nor will be officially adopted by the Supreme Court.

 Additions to the text of the proposal are bolded and underlined; deletions to the text are bolded and bracketed.

 The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:

 Jeffrey M. Wasileski, Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
Harrisburg, PA 17106-2635
fax: (717) 231-9521
e-mail: criminalrules@pacourts.us

 All communications in reference to the proposal should be received by no later than Friday, February 23, 2018. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.

By the Criminal Procedural
Rules Committee

BRIAN W. PERRY, 
Chair

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES

PART B. Instituting Proceedings

Rule 502. Instituting Proceedings in Court Cases.

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Comment

*  *  *  *  *

 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, 427 Pa. 552, 234 A.2d 552 (1967), and Commonwealth v. Smouse, 406 Pa.Super. 369, 594 A.2d 666 (1995).

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, 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). 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).

*  *  *  *  *

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   , 2018, effective   , 2018.

Committee Explanatory Reports:

*  *  *  *  *

 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.  (  , 2012).

Report explaining the proposed revision of the Comment regarding complaint procedures subsequent to indictment published comment at 48 Pa.B. 510 (January 20, 2018).

PART B(3). Arrest Procedures in Court Cases

(a) Arrest Warrants

Rule 513. Requirements for Issuance; Dissemination of Arrest Warrant Information.

*  *  *  *  *

Comment

*  *  *  *  *

ISSUANCE OF ARREST WARRANTS

*  *  *  *  *

 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, [24 Pa.Super. 198,] 369 A.2d 362 (Pa. Super. 1976).

*  *  *  *  *

 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

*  *  *  *  *

Official Note: Rule 119 adopted April 26, 1979, effective as to arrest warrants issued on or after July 1, 1979; Comment revised August 9, 1994, effective January 1, 1995; renumbered Rule 513 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended December 23, 2013, effective March 1, 2014; Comment revised , 2018, effective , 2018.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the December 23, 2013 amendments providing procedures for delay in dissemination and sealing of arrest warrant information published with the Court's Order at 41 Pa.B.  (  , 2013).

Report explaining the Comment revision cross-referencing post-indictment arrest warrant procedures in Rule 556.11 published for comment at 48 Pa.B. 510 (January 20, 2018).

Rule 516. Procedure in Court Cases When Warrant of Arrest is Executed Within Judicial District of Issuance.

*  *  *  *  *

Comment

*  *  *  *  *

 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   , 2018, effective   , 2018.

Committee Explanatory Reports:

*  *  *  *  *

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

Report explaining the proposed Comment revisions regarding post-indictment arrest warrants published for comment at 48 Pa.B. 510 (January 20, 2018).

Rule 517. Procedure in Court Cases When Warrant of Arrest is Executed Outside Judicial District of Issuance.

*  *  *  *  *

Comment

*  *  *  *  *

 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 (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   , 2018, effective   , 2018.

Committee Explanatory Reports:

*  *  *  *  *

 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.  (  , 2005).

Report explaining the proposed Comment revisions regarding post-indictment arrest warrants published for comment at 48 Pa.B. 510 (January 20, 2018).

Rule 518. Using Advanced Communication Technology in Court Cases When Warrant of Arrest is Executed Outside Judicial District of Issuance.

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Comment

*  *  *  *  *

 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   , 2018, effective   , 2018.

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.  (  ).

Report explaining the proposed Comment revisions regarding post-indictment arrest warrants published for comment at 48 Pa.B. 510 (January 20, 2018).

PART E. Indicting Grand Jury

Rule 556.11. Proceedings When Case Presented to Grand Jury.

 (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; or

[(3)] (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[, or issue an arrest warrant, if the subject of the indictment has not been arrested on the charges contained in the indictment].

(E) If the subject of the indictment has not been arrested on the charge 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.

[(E)] (F) At the request of the attorney for the Commonwealth, the supervising judge shall order the indictment to be sealed.

[(F)] (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.

Comment

*  *  *  *  *

 Concerning hearsay evidence before the indicting grand jury, see Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966).

This rule was amended in 2018 to clarify that a defendant 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. Thereafter, the attorney for the Commonwealth shall file a complaint and a request that an arrest warrant be issued as provided in paragraph (E). 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   , 2018, effective   , 2018.

Committee Explanatory Reports:

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

Report explaining the proposed amendment regarding the issuance of indictment of non-defendants published for comment at 48 Pa.B. 510 (January 20, 2018).

 (Editor's Note: The following rule is proposed to be added and printed in regular type to enhance readability.)

Rule 556.13. Procedures Following Execution of Warrant of Arrest Issued Following Indictment.

 (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.

Comment

 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 same status as a case that has been held for court. The next steps following the preliminary arraign-ment 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   , 2018, effective   , 2018.

Committee Explanatory Reports:

 Report explaining proposed new Rule 556.13 providing procedures following the execution of arrest warrants issued by the supervising judge of an investigating grand jury published for comment at 48 Pa.B. 510 (January 20, 2018).

REPORT

Proposed New Rule 556.13; Proposed Amendment of Pa.R.Crim.P. 556.11; Proposed Revision of the Comment to Pa.Rs.Crim.P. 502, 513, 516,
517, and 518

Post-Indictment Arrest Warrant Procedures

 The Committee was recently presented with a question from Allegheny County regarding the provision in Rule 556.11(D)(2) that allows for issuance of an arrest warrant for an individual who has not previously been arrested for the charges contained in the indictment. Specifically, it is not clear how such an individual would be formally charged or what procedures for post-indictment arrests should be followed.

 Rule 556.11(D)(2) was included when the grand jury indictment procedures were revived in 2012. The idea for this type of warrant came up in the context of a case before the indicting grand jury where the evidence indicates that a another individual was involved the criminal activity and there was sufficient evidence being presented to the grand jury that would allow this new individual to be indicted as a co-defendant even though he or she hadn't been arrested. As noted in the Committee's Final Report from that time:

Paragraph (D)(2) requires the supervising judge to forward a copy of the indictment to the clerk of courts, or to issue an arrest warrant if the subject of the indictment has not been arrested on the charges contained in the indictment. The arrest provision was included because, although infrequent, there are times when the indicting grand jury hears evidence that reveals there is another individual who has not been charged but who is involved in the criminal activity that is the subject of the indicting grand jury. The Committee majority agreed the rule should provide a procedure to address this situation so the case would not ''fall through the cracks.'' 42 Pa.B. 4140 (July 7, 2012).

 It appears that more detailed procedures regarding these types of warrants were not included given that the number of cases that may be presented to an indicting grand jury, i.e. those that involve witness intimidation concerns, were anticipated to be relatively few and that the situations where new individuals would be identified during the grand jury proceedings would be even rarer. However, in light of the inquiry presented, the Committee decided that these procedures needed to be further defined.

 The Committee agreed that an indictment could be issued against a previously uncharged defendant if a case has been properly determined to be before an indicting grand jury due to the possibility of witness intimidationand the grand jury had determined that there was evidence against that uncharged defendant. The Commit- tee recognized that this method of initiating a case currently was not recognized by the rules. In particular, there was a question as how the case should be initiated and whether the indictment might be used as a charging document in lieu of a criminal complaint.

 The Committee concluded that the method for initiating a case for a defendant who had not been previously charged but was indicted by grand jury should be, as in other criminal case, by means of a criminal complaint. However, since the grand jury procedure takes the place of a preliminary hearing, procedures following the preliminary arraignment after the warrant had been executed would differ from other criminal cases. The Committee agreed that the procedures should provide for: (a) the filing of a criminal complaint prior to the issuance of the arrest warrant by the supervising judge of the grand jury; and (b) procedures following the arrest of such a defendant including preliminary arraignment before the supervising judge or president judge's designee. Thereafter, the case would proceed to the filing of the information and formal arraignment.

 In the proposal, Rule 556.11 (Proceedings when Case Presented to Grand Jury) would be amended by adding a new paragraph (A)(3) that specifically authorizes the grand jury to indict an individual who was not previously charged in the case that is before the grand jury. The provision that permits the issuance of an arrest warrant in current paragraph (D)(2) would be placed in a new paragraph (E) and would set out the procedures to be followed when such an individual is indicted. Once the attorney for the Commonwealth receives a copy of the indictment, he or she must file a complaint with the clerk of courts in the county where the grand jury sits. A request for an arrest warrant must then be presented to the supervising judge, using the indictment as the affidavit of probable cause. The supervising judge then must issue the warrant. Comment language would be added to provide some additional information.

 New Rule 556.13 would provide the procedures following the arrest of this new defendant with receiving a preliminary arraignment before the supervising judge or another common pleas judge designated by the president judge. Following preliminary arraignment, the case would proceed as provided in Rule 560, with the filing of the information, and Rule 571, with formal arraignment.

 Since these procedures require the filing of a complaint, no new provisions would need to be added to Rule 502 (Instituting Proceedings in Court Cases) but a cross-reference to the new procedures in Rules 556.11 and 556.13 would be added to the Comment. Similarly, a cross-reference to these procedures would be added to Rule 513 (Requirements for Issuance; Dissemination of Arrest Warrant Information). Additionally, cross-references to the post-execution procedures would be added to Rule 516 (Procedure in Court Cases When Warrant of Arrest is Executed Within Judicial District of Issuance), 517 (Procedure in Court Cases When Warrant of Arrest is Executed Outside Judicial District of Issuance), and 518 (Using Advanced Communication Technology in Court Cases When Warrant of Arrest is Executed Outside Judicial District of Issuance).

[Pa.B. Doc. No. 18-100. Filed for public inspection January 19, 2018, 9:00 a.m.]



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