Revision and Renumbering of Local Rules of Criminal Procedure; No. 2003-00001-0002
[33 Pa.B. 2858]
And Now, this 27th day of May, 2003, the Court approves and adopts the following Revision and Renumbering of the Montgomery County Local Rules of Criminal Procedure. The Revision and Renumbering shall become effective thirty (30) days from the date of publication in the Pennsylvania Bulletin.
The Court Administrator is directed to publish this Order once in the Montgomery County Law Reporter and in the Legal Intelligencer. In conformity with Pa.R.Crim.P. 105, seven (7) certified copies of the within Order shall be filed by the Court Administrator with the Administrative Office of Pennsylvania Courts. Two (2) certified copies shall be distributed to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin. One (1) certified copy shall be filed with the Criminal Procedural Rules Committee. One (1) copy shall be filed with the Prothonotary, one (1) copy with the Clerk of Courts, and (1) copy with the Court Administrator of Montgomery County, one (1) copy with the Law Library of Montgomery County and one (1) copy with each Judge of this Court.
By the Court
S. GERALD CORSO,
Rule 431*(E)--(R). Procedure when Defendant Arrested with Warrant.
(D) Warrants of arrest shall be issued for execution only to police officers as defined in Rule 103 who have on file with the issuing authority signed and dated verifications that all facts set forth in any return of service being made by the police officer are being set forth in each such return of service as true and correct to the best of the police officer's knowledge, information and belief under the understanding that false statements therein are subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities.
(E) When an arrest warrant is returned where the defendant has been found, the issuing authority shall ensure that the return of service by the police officer confirms:
(1) that the defendant has signed a guilty plea and has paid the amount of fine and cost stated on the warrant; or
(2) that the defendant has signed a not guilty plea and has paid the full amount of collateral stated on the warrant; or
(3) that the defendant has paid fine and cost due as specified in the warrant if the warrant is for collection of fine and cost after guilty plea or conviction.
(F) Issuing authorities shall require all police officers as defined in Rule 103 executing warrants of arrest as specified above to:
(1) accept payments directly from defendants in cash, check or money order made payable only to the issuing authority's magisterial district; and
(2) forthwith submit to the magisterial district from which the warrant of arrest issued all such payments made payable to issuing authority's magisterial district and so much of the cash payments collected as are due to the Court for security or fine and Court costs. (Authorized fees for service of warrants by police officers paid in cash may be withheld by the police officer so long as the required return of service has been made.)
(G) The issuing authority at the time of issuance of an arrest warrant shall direct that a defendant arrested on a warrant who is unable or unwilling to enter a written plea of guilty or not guilty, or who is unable or unwilling to pay the full amount of fine and cost, or is unable to post the amount of collateral stated be:
(1) held by the police officer pending the police officer's contacting the issuing authority either by telephone or in person to determine whether the defendant shall be given an immediate trial or provided a postponement; and
(2) given the opportunity to deposit sufficient collateral with the police officer when applicable for appearance on the new date. (If the issuing authority determines that a question of the defendant's financial ability to post sufficient collateral exists, then the issuing authority may release the defendant from custody pending a Pa.R.Crim.P. 456 hearing on the next available hearing day in the issuing authority's magisterial district and direct the police officer to make a notation on the warrant return released for a Rule 456 hearing by District Justice together with the date and time the order was entered.)
(H) No issuing authority serving on special assignment duty shall be required to respond to any request by a police officer to process a defendant arrested under Pa.R.Crim.P. Rule 431 unless the issuing authority on special assignment duty issued the arrest warrant being executed by the police officer.
(I) The issuing authority's warrant of arrest shall be the exclusive form for use by a police officer to issue a receipt for fines and costs or collateral accepted by the police officer where the defendant has been found.
(J) The issuing authority shall forthwith, upon receipt of a plea and payment, recall its issued warrant(s). The issuing authority shall thereafter confirm the timely return of the recalled warrant(s).
(K) The issuing authority shall not authorize payment or accept a return of service of an arrest warrant where the defendant has been found when the return of service is:
(1) not a carbon copy of the receipt issued to the defendant setting forth the amount of fine and costs or collateral received from the defendant; and
(2) is not signed by the defendant and the police officer; or
(3) which is not otherwise designated ''released for a Rule 456 hearing by District Justice ______ '' as provided for herein;
(4) however, the issuing authority shall accept in lieu of the defendant's signature the police officer's certification, ''defendant refused to sign'' as full compliance with the procedures set forth herein for return of a warrant of arrest where the defendant has been found.
(L) The issuing authority shall authorize and make payment of a warrant fee for the execution of an arrest warrant when the defendant has not been found at the time the arrest warrant is executed and:
(1) the police officer has provided a notice to respond to the defendant as addressed on the warrant that includes therein:
i. a place for the defendant's signature; and
ii. a place for entry of a plea of guilty or not guilty; and
iii. a notice that all payments shall be made payable to the Magisterial Court of the issuing authority that issued the arrest warrant; and
iv. a notice of the total amount due including all costs for service of the warrant of arrest; and
v. the police officer has verified on return of the warrant that the police officer attempted service on the defendant as addressed and that the police officer left a notice to respond described herein;
(2) the issuing authority has received payment from the defendant together with a signed plea;
(3) the issuing authority shall then authorize and make payment for service of the warrant in the same manner as the return of service where the defendant is found.
(M) The issuing authority shall authorize and make payment of a nulla bono fee for the execution of an arrest warrant where the defendant has not been found when the arrest warrant was executed and:
(1) the police officer has made an actual attempt at service; and
(2) has properly completed an affidavit that the defendant was not found as addressed on the warrant; and
(3) the police officer leaves a notice to the defendant as addressed on the warrant in the same manner as prescribed in section (m) above.
(N) Issuing authorities shall require police officers to complete requests for payment due to police officers for all warrants of arrest where the defendant has been found and a proper return of service has been completed.
(O) The issuing authority shall complete payment forms for payments due to police officers for execution of warrants where the defendant was not found but has responded by written plea and payment as a result of the police officer having left notice at the defendant's residence.
(P) During normal business operation of magisterial office, all requests for payments for properly executed warrants and returns of service which have been submitted by approved police officers or completed by the issuing authority's staff by noontime on Wednesday of any work week will be paid by 4 p.m. Friday of the same work week.
(Q) All arrest warrants issued pursuant to Pa.R.Crim.P. 431 by an issuing authority shall be required to be returned by the police officer to whom they were issued within ninety (90) days after the date issued. An issuing authority shall have the discretion to reissue any warrants so returned for an additional sixty (60) days upon good cause shown.
Rule 507*. Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth.
The District Attorney of Montgomery County, having filed a certificate pursuant to Pennsylvania Rule of Criminal Procedure 507(b), Criminal Complaints and Arrest Warrant Affidavits by police officers, as defined in the Rules of Criminal Procedure, charging criminal homicide offenses (including homicide by vehicle) shall not hereafter be accepted by any judicial officer unless the Complaint and Affidavit have the approval of an attorney for the Commonwealth prior to filing.
Rule 528(C)*. Procedure for Bail Bond.
When a defendant or his/her private third-party surety has deposited a sum of money equal to ten (10) percent of the bail (but in no event less than fifty ($50) dollars), then upon full and final disposition of the case, the deposit (less the retention) and any amount applied to the payment of fine, costs and attorney's fee shall be returned to the person who originally posted the deposit. Notice of the full and final disposition shall be sent by the Court to the person who originally posted the money at his/her address of record. Any money not claimed within sixty (60) days from the time of full and final disposition of the case shall be deemed as unclaimed and abandoned property subject to escheat pursuant to the applicable Pennsylvania Escheat Statute.
Rule 528(D)(3)*. Realty as Security for Monetary Condition of Release on Bail.
The actual net value shall be the assessed value deducting there-from all liens and encumbrances or meet the requirements of Montgomery County Rule of Criminal Procedure 531(A)*(6).
Rule 531(A)*(6)--(11). Qualifications of Surety.
(6) Residents or owners of realty in order to be qualified to act as sureties must own realty within the Commonwealth of Pennsylvania. In all cases or realty owned outside Montgomery County, the surety must provide the following:
(a) Affidavit of Justification of each surety;
(b) Written appraisal by a reputable licensed real estate broker in the county in which the property is situate;
(c) Proof of entry of the bond in favor of the Commonwealth in the Prothonotary's Office of the county in which the property is situate;
(d) Letter from the mortgage company indicating the unpaid balance due on the mortgage covering the said property, if any;
(e) A lien and judgment search by a reputable title insurance company.
(7) Justification of Personal Surety. In justification of bail, personal surety shall be required to give the following information under oath:
(a) name, address, age and occupation;
(b) A general description of real estate in Montgomery County of which the surety is a freeholder;
(c) A statement of the manner in which the surety obtained title, and upon failure to produce the evidence of title, the Deed Book or Will Book reference of the recording of the instrument by which the surety obtained title;
(d) A statement of all encumbrances, including taxes, upon said real estate;
(e) A statement of all other surety undertakings;
(f) A statement of all the assessed, market and rental value of the real estate;
(g) A statement that the surety is not contemplating or negotiating the sale of the real estate.
(8) Corporate Surety.
(a) Every corporate surety company duly authorized to do business in Pennsylvania may become surety on any bail bond required to be filed in this Court provided that a current Certificate of Authority issued to it by the Insurance Department of the Commonwealth of Pennsylvania, evidencing such right, along with the current financial statement, shall be filed with the Clerk of Courts. No bond shall be executed by any corporate after May 15th of the same year until such a certificate is issued after March 31st of the same year and the financial statement shall have been filed with the Clerk of Courts.
(b) No bond shall be executed by any corporate surety where the aggregate maximum amount of unsettled and outstanding bail forfeitures, as determined by the Solicitor for the Clerk of Courts, is One Hundred Thousand ($100,000.00) Dollars. The Solicitor for the Clerk of Courts shall immediately notify the Clerk of Courts, the District Attorney and the District Justices of Montgomery County, of any corporate surety having reached this maximum limit. The Clerk of Courts and District Justices shall immediately cease executing bonds by the corporate surety. When full financial settlement has been made with the County of Montgomery, the Solicitor for the Clerk of Courts shall notify the Clerk of Courts and District Justices that execution of bonds by the corporate surety may resume.
(9) Surety Agents.
(a) Every agent, acting on behalf of a corporate surety, may execute a bail bond required to be filed in this Court provided that a Power of Attorney issued by the corporate surety setting forth the maximum limit of liability per bail, along with proof of licensing by the Insurance Department of the Commonwealth of Pennsylvania, shall be filed with the Clerk of Courts. No bond shall be executed by any surety agent after the expiration of such Power of Attorney until a new Power of Attorney shall have been filed with the Clerk of Courts.
(b) No bond shall be executed by any surety agent of a corporate surety authorized to do business in Montgomery County where the aggregate maximum amount of unsettled and outstanding bail forfeitures for all corporate sureties for which the surety agent is writing bonds, as determined by the Solicitor for the Clerk of Courts, is One Hundred Thousand ($100,000.00) Dollars. The Solicitor for the Clerk of Courts shall immediately notify the Clerk of Courts, the District Attorney and the District Justices of Montgomery County, of any surety agent having reached this maximum limit. The Clerk of Court and District Justices shall immediately cease executing bonds by the surety agent. When full financial settlement has been made with the County of Montgomery, the Solicitor for the Clerk of Courts shall notify the Clerk of Courts and District Justices that execution of bonds by the surety agent may resume.
(10) Professional Bail Bondsman.
(a) Every professional bail bondsman, duly authorized to do business in Pennsylvania, may become surety on any bail bond required to be filed in this Court, provided that a currently valid registration and license from the Insurance Department of the Commonwealth of Pennsylvania, pursuant to 42 Pa.C.S. § 5742, evidencing such right, shall be filed with the Clerk of Courts. Every professional bail bondsman must present proof that he or she maintains an office in Montgomery County from which his or her business is conducted pursuant to 42 Pa.C.S. § 5744, and he or she must post and maintain a security with the Clerk the sum of Fifty Thousand ($50,000.00) Dollars in United States currency or securities of the United States Government.
(b) No bond shall be executed by any professional bail bondsman where the aggregate maximum amount of unsettled and outstanding bail forfeitures, as determined by the Solicitor for the Clerk of Courts, is One Hundred Thousand ($100,000.00) Dollars. The Solicitor for the Clerk of Courts shall immediately notify the Clerk of Courts, the District Attorney and the District Justices of Montgomery County, of any professional bail bondsman having reached this maximum limit. The Clerk of Court and District Justices shall immediately cease executing bonds by the professional bail bondsman. When full financial settlement has been made with the County of Montgomery, the Solicitor for the Clerk of Courts shall notify the Clerk of Courts and District Justices that execution of bonds by the professional bail bondsman may resume.
(11) Effective Date.
This rule shall apply to forfeitures entered on or after June 12, 2001.
Rule 542*(F), (G). Preliminary Hearing.
(E) In all cases where there is a transcript taken by a court reporter of a Preliminary Hearing in a criminal case, the entire cost of the notes of testimony which shall include an original for the Court, and a copy each to the Commonwealth and the defendant, shall be borne equally between the Commonwealth and defense counsel. If any extra copies are ordered, the party requesting the extra copy shall be responsible for same.
(F) If a stenographic or other record of any preliminary hearing is made, and is subsequently transcribed, the original thereof shall, upon its preparation, be forthwith filed with the Clerk of Courts of Montgomery County. Where notes have been transcribed by an official or other reporter, it shall be the primary responsibility of the reporter to cause the original to be filed. In the event the reporter shall fail to do so, and where a party has transcribed a record using mechanical or electronic devices, the party responsible for ordering or preparing such transcription shall be responsible for filing the original of the notes. Where a mechanical or electronic device has been the primary source of a transcribed record, it shall be preserved and available for reference at trial. If a transcript of a record of the proceedings has not been filed with the Clerk of Courts prior to trial, or hearing on pretrial motions heard immediately before trial, such record shall be unavailable for use to either party at trial or at such pretrial hearings.
Rule 571*(E), (F). Arraignment.
(E) At the conclusion of a preliminary hearing in which a defendant is bound over for action by the Court of Common Pleas, or upon waiver of the preliminary hearing by a defendant, the issuing authority shall provide written notice of the date, place and time of arraignment in the Court of Common Pleas.
(F) Arraignment may be conducted by the Court Administrator or designated Deputy, and may be conducted by using advanced communication technology.
Rule 587*(C). Motion for Dismissal.
The Clerk of Courts shall annually prepare a list of all pending criminal actions in which no activity appears upon the docket for two years or more immediately prior thereto. The Clerk of Courts shall give notice thereof to the District Attorney, counsel of record, and to the parties for whom no appearance of counsel has been entered, that said cases shall be marked terminated upon the docket unless an Activity Status Certificate is filed with the Clerk of Courts within thirty (30) days after service of the notice by mail, in person or by publication on the District Attorney, counsel of record and to those parties for whom no appearance has been entered. Such cases shall be marked terminated on the docket unless an Activity Status Certificate is filed with the Clerk of Court within such time.
All matters so terminated may not be reinstated except with leave of Court.
The Clerk of Courts shall notify the Sheriff, District Attorney, and counsel for the defendant each time a case is marked terminated on the docket.
Rule *709. Paroles and Changing of Sentence.
All petitions for parole or change of sentence shall contain the following:
(1) The sentence of the Court verbatim;
(2) The name of the Sentencing Judge;
(3) A detailed history of the case;
(4) The prior criminal record of the defendant, in detail;
(5) Succinct statement of the reasons for making the application;
(6) Employment open to defendant, accompanied by a letter from the defendant's proposed employer stating the wages the defendant will receive, if the application should be granted;
(7) Where defendant proposes to reside; and
(8) A signed statement by the warden of the defendant's deportment.
Rule *710. Termination of Probation.
After the request of a defendant, or defendant's counsel, for termination of probation to the Chief Adult Probation Officer has been refused by such officer, a Petition for Termination of Probation may be filed in form substantially similar to that set forth in Rule *709. A copy shall be served on the District Attorney, the Chief Adult Probation Officer, and the sentencing Judge. Thereafter, unless the sentencing Judge summarily grants the prayer for relief upon the averments of the Petition, a hearing shall be set thereon at the earliest possible date.
Rule 722*. Expungement of Record
(A) A person desiring to expunge the record involving any criminal arrest or other criminal matter, except a Section 17 Disposition under the Drug Act shall:
(1) File a petition which shall contain the following:
i. The name, date of birth and social security number of the petitioner and any names or aliases which the petitioner has used.
ii. The address of the petitioner.
iii. The crime or crimes upon which the petitioner was arrested or the matter which the petitioner desires to have expunged, and a summary of all proceedings which took place after the arrest, including the names of all police departments involved, the name of the District Justice involved in the case, and the Official Tracking Number (OTN).
iv. The reason why the record or matter should be expunged.
v. Any previous criminal convictions of a felony or a misdemeanor in any jurisdiction in which the petitioner had been convicted. The petition should be under oath.
(2) The petition shall be captioned to the name or term and number of the original Court case if there is any such term and number in the proceedings, it shall be captioned ''In the Matter of ______ , Petition to Expunge,'' and given a miscellaneous number by the Clerk of Courts.
(3) After the filing of the said petition with the Clerk of Courts, the petitioner, by petitioner's counsel, shall obtain a Rule Returnable from the Court Administrator's Office
(4) A copy of said petition with the date of the Rule Returnable shall be served either on the District Attorney or the First Assistant District Attorney by petitioner. Said petition is to be served at least 25 days prior to the date of the Rule Returnable.
(5) If no answer is filed by the District Attorney's Office on the return date and petitioner files an affidavit of service that said petition was served as required by the rule, said rule is to be made absolute.
(6) If an answer is filed by the District Attorney's Office, the Court Administrator is to immediately set a hearing date at which time the Commonwealth may produce evidence, if necessary, and give arguments to the Court in opposition to the expungement, after which the petitioner has the right to produce evidence and arguments in favor of the expungement.
(7) If the Court grants the order of expungement, the petitioner or petitioner's counsel shall obtain all necessary certified copies of the order from the Clerk of Courts office and mail the certified copies of the expungement order to all criminal justice agencies enumerated in the proposed order of expungement with a self-addressed stamped envelope so that the criminal justice agencies can notify the petitioner or petitioner's counsel that their records have been expunged.
(8) Upon notification by the criminal justice agencies that the petitioner's records have been expunged, the petitioner and/or petitioner's counsel will notify the Clerk of Courts and they will expunge their records, notifying the petitioner and/or the petitioner's counsel of the same.
(B) Section 17 Disposition
(1) When a defendant has successfully completed a Section 17 Disposition under the Drug Act, the Adult Probation Office of Montgomery County shall certify that fact to the Clerk of Courts of Montgomery County within 14 days.
(2) The Clerk of Courts of Montgomery County shall prepare an expungement order for the Court to sign in accordance with Pennsylvania Rule of Criminal Procedure 722 within 14 days.
(3) After the Court has signed the expungement order, the Clerk of Courts shall send the Order to the defendant and/or defendant's attorney within 14 days for service on all appropriate criminal justice agencies.
(4) Upon notification by the defendant and/or defendant's attorney that the defendant's record has been expunged by the appropriate criminal justice agencies, the Clerk of Courts will expunge its record and notify the defendant and/or defendant's attorney.
CRIMINAL COURT FORMS
See Rule 431*(E)--(R)
I, ______ , state that I am a police officer as defined in Rule 103 of the Pennsylvania Rules of Criminal Procedure; and that the facts that I shall from time to time set forth in any Return of Service required to be filed with the issuing authority for each warrant of arrest issued to me pursuant to Pa.R.Crim.P. 431 shall be true and correct to the best of my knowledge, information and belief, and that this statement is made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities.
Date: ______ ______
[Pa.B. Doc. No. 03-1170. Filed for public inspection June 20, 2003, 9:00 a.m.]
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