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PA Bulletin, Doc. No. 99-398



[234 PA. CODE CH. 50]

Proposal to Revise Comment to Rule 60

[29 Pa.B. 1385]


   The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania approve the revision of the Comment to Rule of Criminal Procedure 60. This Comment revision adds a cross-reference to Section 902 of the Game and Wildlife Code, 34 Pa.C.S. § 902, to make it clear that under the statute, it is not feasible for Deputy Wildlife Conservation Officers to issue citations, and that in cases instituted by a Deputy, the citation must be filed pursuant to Rule 60. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.

   The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.

   The text of the proposed Comment revision precedes the Report. Deletions appear in bold and brackets, and additions appear in bold.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel, Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Criminal Procedural Rules Committee, P. O. Box 1325, Doylestown, PA 18901 no later than April 12, 1999.

By the Criminal Procedural Rules Committee:


Annex A





Rule 60.  Filing of Citation.

*      *      *      *      *

   Official Note:  Previous rule, originally adopted as Rule 116 June 30, 1964, effective January 1, 1965; suspended effective May 1, 1970; readopted January 31, 1970, effective May 1, 1970; renumbered as Rule 60 and amended to apply only to summary cases September 18, 1973, effective January 1, 1974; amended April 26, 1979, effective July 1, 1979; amended January 28, 1983, effective July 1, 1983; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule 76. Present Rule 60, adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates are all extended to July 1, 1986; Comment revised February 1, 1989, effective July 1, 1989; Comment revised ____ , 1999, effective ______ .


   [This rule is derived from previous Rule 51A, subparagraphs (1)(b) and (3)(b).]

   A law enforcement officer should file a citation with the issuing authority when, due to the circumstances of the case, the law enforcement officer is unable to issue the citation directly to the defendant at the time of the offense. Examples of situations when the law enforcement officer would be unable to issue a citation include, but are not limited to, when the officer receives information that the defendant has committed a summary violation from a witness but the defendant is not then present [,]; when a witness is not present at the scene and the officer wants to question the witness before completing the investigation [,]; or when the officer is summoned to another case that requires prompt action. See Section 902 of the Game and Wildlife Code, 34 Pa.C.S. § 902, which provides, inter alia, that ''Deputy Wildlife Conservation Officers shall not be authorized to issue citations . . . and shall provide the information to the Wildlife Conservation Officer.'' Under this statute, it would not be feasible for the Deputy Wildlife Conservation Officer to issue the citation, and, therefore, pursuant to this rule, the citation would be filed.

   When a defendant acknowledges guilt pursuant to Section 926 of the Game and Wildlife Code, [(] 34 Pa.C.S. § 926,[(Supp. 1988))] or Section 925 of the Fish and Boat Code, [(] 30 Pa.C.S. § 925, [(Supp. 1988))] but does not pay the fine and costs or the check issued for the fine and costs cannot be cashed, the officer of the commission should file a citation with the issuing authority to institute a summary criminal proceeding.

   When determining whether the filing of a citation was the correct procedure under the rules, the courts have considered whether there was a reasonable basis for filing, whether there were compelling reasons to prevent issuing the citation, and whether the defendant was prejudiced by the filing. See, e.g., Commonwealth v. Odle, 16 D. & C.3d 750 (Cambria County 1980); Commonwealth v. Lombardo, 4 D. & C.3d 106 (Clearfield County 1977). [Also see] See also Rule 90, which would permit discharge or dismissal when the institution or proceedings by incorrect means or prejudicial to the rights of the defendant.

   When evidence is discovered after the issuance of a citation [which] that gives rise to additional charges against the defendant resulting from the same incident, the [police] law enforcement officer must file with the issuing authority an additional citation alleging such additional summary offenses, or a complaint when the additional charges include a misdemeanor or felony. For proceedings on such charges when a complaint is filed, see Chapter 100 of these Rules.

   With regard to the ''proper'' issuing authority as used in these rules, see Rule 21.

Committee Explanatory Reports:

   Report explaining the proposed revision of the Comment concerning 34 Pa.C.S. § 902 published at 29 Pa.B. 1386 (March 13, 1999).


Proposed Revision of the Comment to Pa.R.Crim.P. 60

Filing Citations in Summary Cases

   The Committee is proposing the revision of the Comment to Rule 60 (Filing of Citation) that would add a cross-reference to Section 902 of the Game and Wildlife Code, 34 Pa.C.S. § 902. This cross-reference makes it clear that, under the statute, it is not feasible for Deputy Wildlife Conservation Officers to issue citations, and that in cases instituted by a Deputy, the citation must be filed pursuant to Rule 60.

   On December 21, 1998, the Governor signed Act 166 of 1998, effective July 1, 1999. The Act amends, inter alia, Section 902 of the Game and Wildlife Code, 34 Pa.C.S. § 902, by adding a provision that:

Deputy Wildlife Conservation Officers shall not be authorized to issue citations . . . and shall provide the information to the Wildlife Conservation Officer.

Communications with the Committee questioned the effect of this legislation on the Criminal Rules, and expressed concerns about how Deputy Wildlife Conservation Officers should proceed under the rules.

The Committee reviewed Act 166 and the Criminal Rules. From this review, the members, relying on the principles of statutory construction that the Legislature does not intend an effect that is unreasonable or unconstitutional, 1 Pa.C.S. § 1922, reasoned that the intent of the legislation must be to provide a layer of review by a full-time Wildlife Conservation Officer. Thus, the Wildlife Conservation Officer would be acting in the capacity of a reviewing officer to ensure that the information on the citation prepared by a Deputy constitutes an offense that should be pursued by the filing of the citation. This reviewing function is comparable to the reviewing function performed by a district attorney in a court case pursuant to Pa.R.Crim.P. 107 (Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth--Local Option). We reasoned further that, to give effect to both this statutorily created review process and the Criminal Rules, under Section 902 and Pa.R.Crim.P. 60 (Filing of Citation), when a Deputy Wildlife Conservation Officer is instituting a summary criminal proceeding, it is not feasible for the Deputy to issue the citation to the defendant. Therefore, Rule 60 requires that the citation be filed.

Although agreeing that Rule 60 adequately provides for the situation in which there is a statutorily mandated review process, given the apparent confusion the Act 166 amendments to Section 902 are causing, the Committee concluded that it would be helpful to include in the Rule 60 Comment a citation to 34 Pa.C.S. § 902, with a clarifying explanation.

[Pa.B. Doc. No. 99-398. Filed for public inspection March 12, 1999, 9:00 a.m.]

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