Title 234--RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
[234 PA. CODE CH. 50]
Proposed Amendment to Pa.R.Crim.P. 86
[26 Pa.B. 2166]
The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rule 86 (Appeals from Summary Judgments) to make it clear that under paragraph (f) the court may continue a trial de novo if there is good cause for the law enforcement officer's unavailability.
The following explanatory Report highlights the issues considered in formulating this proposal. Please note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Report.
The text of the proposed rule amendment precedes the Report. Additions are shown in bold and underlined, and deletions appear in brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel Anne T. Panfil, Chief Staff Counsel, Criminal Procedural Rules Committee, P. O. Box 1325, Doylestown, PA 18901, no later than June 21, 1996.
By the Criminal Procedural Rules Committee
FRANCIS BARRY MCCARTHY,
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 50. PROCEDURE IN SUMMARY CASES
PART VI. GENERAL PROCEDURES IN SUMMARY CASES
Rule 86. Appeals from Summary Judgments.
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(f) When a defendant appeals after conviction by an issuing authority in any summary proceeding, upon the filing of the transcript and other papers by the issuing authority, the case shall be heard de novo by the appropriate division of the court of common pleas as the president judge shall direct. In appeals from summary proceedings arising under the Vehicle Code or local traffic ordinances, other than parking offenses, the law enforcement officer who observed the alleged offense must appear and testify. [Unless the presence of the law enforcement officer is waived in open court by the defendant, the failure of the officer to appear and testify shall result in a dismissal of the charges.] Unless the defendant, in open court, waives the presence of the law enforcement officer, or the court determines that good cause exists for the law enforcement officer's unavailability, the failure of the officer to appear and testify shall result in a dismissal of the charges.
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Official Note: Adopted July 12, 1985, effective January 1, 1986; Comment revised September 23, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended February 2, 1989, effective March 1, 1989; amended March 22, 1993, effective January 1, 1994; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; amended February 25, 1995, effective July 1, 1995 amended ______ , effective ______ .
This rule replaces former Rule 67. It applies to appeals in all summary proceedings, including prosecutions for violations of municipal ordinances which provide for the possibility of imprisonment and default hearings.
The Rules of Criminal Procedure are applicable generally to these proceedings. See, e.g., Rule 3, Chapter 50 (Summary Cases), Rule 1117, and Chapter 6000. The narrow holding in City of Easton v. Marra, [230 Pa. Super. 352,] 326 A.2d 637 (Pa. Super. 1974), is not in conflict, since the record before the court did not indicate that imprisonment was possible under the ordinance there in question.
When the only issues on appeal arise solely from an issuing authority's determination after a default hearing pursuant to Rule 85, the matter must be heard de novo by the appropriate judge of the court of common pleas and only those issues arising from the default hearing are to be considered. It is not intended to reopen other issues not properly preserved for appeal. A determination after a default hearing would be a final order for purposes of these rules.
The 1996 amendment of paragraph (f), made in response to Commonwealth v. Hightower, 652 A.2d 873 (Pa. Super. 1995), permits the court to continue the case if there is good cause for the officer's unavailability.
Certiorari was abolished by former Rule 67 in 1973, pursuant to Article V Schedule Section 26 of the Constitution of Pennsylvania, which specifically empowers the Supreme Court of Pennsylvania to do so by rule. This Schedule section is still viable, and the substance of this Schedule section has also been included in the Judicial Code as Section 934. 42 Pa.C.S. § 934. The abolition of certiorari, of course, continues.
Bail, when set in a summary case, shall be in accordance with the bail rules, Chapter 4000.
Committee Explanatory Reports:
Final Report explaining the March 22, 1993 amendments published with the Court's Order at 23 Pa.B. 1699 (April 10, 1993).
Final Report explaining the October 28, 1994 amendments published with the Court's Order at 24 Pa.B. 5843 (November 26, 1994).
Final Report explaining the February 27, 1995 amendments published with the Court's Order at 25 Pa.B. 935 (March 18, 1995).
Report explaining the ______ , 1996 amendment to paragraph (f) published at 26 Pa.B. ______ (May 11, 1996).
Amendment to Pa.R.Crim.P. 86
(Appeals from Summary Judgments)
Presence of Law Enforcement Officer at Trial De Novo
Rule 86 requires that in appeals from summary proceedings under the Vehicle Code or local traffic ordinances, other than parking offenses, the law enforcement officer who observed the offense must appear and testify. Paragraph (f) also provides that the failure of the officer to appear and testify must result in a dismissal of the charges unless the defendant waives, in open court, the law enforcement officer's presence. In Commonwealth v. Hightower, 652 A.2d 873 (Pa. Super. 1995), appeal denied, 665 A.2d 467 (Pa. 1996), the Superior Court considered whether the ''dismissal'' requirement of Rule 86(f) was absolute.
In Hightower, the trial court granted two continuances of the trial de novo, one due to the officer's wife's sudden illness and hospitalization, and the other to accommodate the officer's scheduled vacation. The defendant contended that the trial court abused its discretion by granting a continuance when a dismissal was required. The Superior Court agreed, holding that under Pa.R.Crim.P. 86(f), when ''an officer fails to appear to testify, the charges must be dismissed unless the defendant waives the officer's presence in open court. No other exception to this rule is provided.'' Id. at 873--874.
Although the Committee felt that the Hightower opinion was a fair reading of present Rule 86(f), we also agreed that the language of paragraph (f) was not intended to preclude a court from granting a continuance when a valid reason exists for the officer's unavailability. We are therefore proposing an amendment to paragraph (f) which adds a ''good cause'' exception to paragraph (f) and a Comment which explains that the new language was added in response to the Hightower opinion.
[Pa.B. Doc. No. 96-754. Filed for public inspection May 10, 1996, 9:00 a.m.]
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