THE COURTS
Title 234--RULES
OF CRIMINAL PROCEDURE
[234 PA. CODE CHS. 1 AND 10]
Order Promulgating Rules 1030, 1031, 1032, 1033, 1034, 1035, and 1036, and Amending Rules 105 and 1000; No. 327 Criminal Procedural Rules; Doc. No. 2
[35 Pa.B. 5239] On September 9, 2005, effective February 1, 2006, upon the recommendation of the Criminal Procedural Rules Committee, the Court promulgated a new Chapter 10, Part B, consisting of new Pa.Rs.Crim.P. 1030, 1031, 1032, 1033, 1034, 1035, and 1036 governing procedures in Philadelphia Traffic Court, and adopted correlative changes to Rules 105 (Local Rules) and 1000 (Scope of Rules). These new rules, which establish procedures different from the procedures for traffic summary cases in the magisterial district courts, are necessary for Traffic Court to efficiently and judiciously handle its case load while providing defendants with a fair and expeditious disposition of their cases. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 9th day of September, 2005, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3) in the interests of justice and efficient administration, and a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that:
(1) New Rules of Criminal Procedure 1030, 1031, 1032, 1033, 1034, 1035, and 1036 are promulgated; and
(2) Rules of Criminal Procedure 105 and 1000 are amended,
all in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective February 1, 2006.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART A. Business of the Courts Rule 105. Local Rules.
(A) For the purpose of this rule, the term ''local rule'' shall include every rule, regulation, directive, policy, custom, usage, form or order of general application, however labeled or promulgated, which is adopted or enforced by a court of common pleas, by the Philadelphia Municipal Court, or by the Philadelphia Traffic Court to govern criminal practice and procedure.
* * * * * (C) A local rule shall not become effective and enforceable until the adopting court has fully complied with all the following requirements:
* * * * * (5) The local rules shall be kept continuously available for public inspection and copying in the office of the prothonotary or clerk of [court] courts. Upon request and payment of reasonable costs of reproduction and mailing, the prothonotary or clerk shall furnish to any person a copy of any local rule.
(6) A local rule promulgated before the effective date of this rule shall be filed on or before that effective date with the prothonotary or clerk of [court] courts and shall be kept by the prothonotary or clerk for inspection, copying, and furnishing as provided in paragraph (C)(5).
* * * * * Official Note: Rule 6 adopted January 28, 1983, effective July 1, 1983; amended May 19, 1987, effective July 1, 1987; renumbered Rule 105 and amended March 1, 2000, effective April 1, 2001; amended October 24, 2000, effective January 1, 2001; Comment revised June 8, 2001, effective immediately; amended October 15, 2004, effective January 1, 2005; amended September 9, 2005, effective February 1, 2006.
Committee Explanatory Reports:
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).
* * * * * Final Report explaining the June 8, 2001 Comment revision citing to the AOPC's webpage published with the Court's Order at 31 Pa.B. 3310 (June 23, 2001).
Final Report explaining the October 15, 2004 amendment to paragraph (A), and to paragraph (C)(3) concerning the Legislative Reference Bureau publication requirements, published with the Court's Order at 34 Pa.B. 5893 (October 30, 2004).
Final Report explaining the September 9, 2005 amendments to paragraph (A) published with the Court's Order at 35 Pa.B. 5242 (September 24, 2005).
CHAPTER 10. RULES OF CRIMINAL PROCEDURE FOR THE PHILADELPHIA MUNICIPAL COURT
AND THE PHILADELPHIA TRAFFIC COURTRule 1000. Scope of Rules.
(A) The rules in this chapter govern all proceedings in the Philadelphia Municipal Court, including summary cases; Municipal Court cases, as defined in Rule 1001(A); the filing of appeals from Municipal Court cases; the filing of petitions for writs of certiorari; and the preliminary proceedings in criminal cases charging felonies, Part A, and govern proceedings in summary traffic cases in Traffic Court, Part B.
(B) Any procedure that is governed by a statewide Rule of Criminal Procedure that is not specifically covered in Chapter 10 or by a Philadelphia local rule authorized by these rules and adopted pursuant to Rule 105 shall be governed by the relevant statewide rule.
Comment The 2004 amendments make it clear that, except as otherwise provided in the rules, Chapter 10 governs all proceedings in the Philadelphia Municipal Court, including the procedures for instituting criminal cases charging felonies, preliminary arraignments, and preliminary hearings. See 42 Pa.C.S. § 1123 (Jurisdiction and Venue).
Official Note: Rule 6000 adopted December 30, 1968, effective January 1, 1969; amended March 28, 1973, effective March 28, 1973; amended July 1, 1980, effective August 1, 1980; renumbered Rule 1000 and amended March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended June 30, 2005, effective August 1, 2006; amended September 9, 2005, effective February 1, 2006.
Committee Explanatory Reports:
* * * * * Final Report explaining the September 9, 2005 amendments adding new rules governing Philadelphia Traffic Court published with the Court's Order at 35 Pa.B. 5242 (September 24, 2005).
PART A. Philadelphia Municipal Court Procedures 1002. Procedure in Summary Cases.
1003. Procedure in Non-Summary Municipal Court Cases.
1004. Arraignment Prior to Trial.
1005. Pretrial Applications for Relief.
1006. Notice of Right to Appeal or to Petition for Certio rari; Guilty Plea Challenge Procedure.
1007. Challenge to Guilty Plea.
1008. Contents of Notice of Appeal or Petition for Certio rari.
1009. Notice to Municipal Court Judge and Attorney for the Commonwealth of Appeal or of Petition for Certio rari.
1010. Procedure on Appeal.
1011. Bail.
1012. Recording and Transcribing Municipal Court Pro ceedings; Admissibility of Testimony at Trial De Novo.
1013. Prompt Trial--Municipal Court.
PART B. Philadelphia Traffic Court Procedures 1030. Scope of Summary Traffic Court Rules.
1031. Institution of Proceedings in Summary Traffic Cases.
1032. Pleas in Response to Citation.
1033. Procedures When Defendant Arrested with War rant.
1034. Collateral.
1035. Appointment of Counsel.
1036. Traffic Court Hearing Officers.Rule 1030. Scope of Summary Traffic Court Rules.
Except as provided in these rules or by local rule authorized by these rules, or elsewhere in Chapter 10, all criminal proceedings in which a person is accused of one or more summary traffic offenses only or violations of municipal traffic ordinances shall proceed as provided in Chapter 4 of the Rules of Criminal Procedure.
Comment These rules were developed in 2005 to accommodate the procedures Philadelphia Traffic Court has implemented to address the issues in summary traffic cases unique to Philadelphia, to more efficiently handle the vast number of summary traffic cases, and to protect the defendants' rights to a fair and prompt disposition of their cases.
See Rule 105 for the procedures for promulgating local rules.
Official Note: Adopted September 9, 2005, effective February 1, 2006.
Committee Explanatory Reports:
Final Report explaining the provisions of the new rule published with the Court's Order at 35 Pa.B. 5242 (September 24, 2005).
Rule 1031. Institution of Proceedings in Summary Traffic Cases.
(A) Summary traffic cases in Philadelphia shall be instituted by:
(1) issuing a citation to the defendant as provided in Rules 405-409;
(2) filing a citation with the Traffic Court as provided in Rules 410-414; or
(3) arresting without a warrant when arrest is specifically authorized by law as provided in Rules 440 and 441.
(B) The Administrative Judge of Traffic Court, or in the event the position of Administrative Judge is vacant, the Traffic Court President Judge, may provide by local rule, as an exception to the trial notice procedures in Rule 408(B), when a citation is issued to the defendant as provided in Rule 405, that the law enforcement officer also shall give the defendant written notice of the date and time and location set for the summary trial.
(1) The trial notice shall include an explanation that if the defendant enters a guilty plea and pays the fine and costs indicated on the citation within the specified time, the summary trial will be cancelled.
(2) The trial notice also shall include notice to the defendant that:
(a) failure to appear for the trial shall constitute consent for the trial to be conducted in the defendant's absence;
(b) if the defendant is found guilty, the collateral deposited will be forfeited and applied toward the fine and costs; and
(c) the defendant will have the right to appeal within 30 days for a trial de novo in the court of common pleas.
Comment See Rule 403 for the contents of the citation.
The trial notice permitted in paragraph (B) may be added to the citation form.
See Rule 105 for the procedures for promulgating local rules.
Official Note: Adopted September 9, 2005, effective February 1, 2006.
Committee Explanatory Reports:
Final Report explaining the provisions of the new rule published with the Court's Order at 35 Pa.B. 5242 (September 24, 2005).
Rule 1032. Pleas in Response to Citation.
In addition to the procedures in Rules 407 and 412 for entering a plea in a summary traffic case, the defendant, by means of electronic transmission as provided by local rule, may notify the Traffic Court of his or her plea, and either pay the fines and costs or post the requisite collateral.
Comment See Rule 105 for the procedures for promulgating local rules.
Official Note: Adopted September 9, 2005, effective February 1, 2006.
Committee Explanatory Reports:
Final Report explaining the provisions of the new rule published with the Court's Order at 35 Pa.B. 5242 (September 24, 2005).
Rule 1033. Procedures When Defendant Arrested with Warrant.
(A) When a defendant is arrested pursuant to a warrant issued as provided in Rule 430, the police officer without unnecessary delay shall take the defendant before the proper issuing authority and shall proceed as provided in this rule and by local rule.
(B) When the defendant appears in person or appears by means of two-way simultaneous audio-video equipment, the judge or bail commissioner shall:
(1) inform the defendant concerning the specific citations to which the defendant has not entered a plea as required by Rules 407 and 412;
(2) inform the defendant concerning the specific citations that have been adjudicated that have outstanding fines or costs for which the defendant is in default of a payment order or a payment plan; and
(3) advise the defendant of the right to retain counsel, and if, in the event of a conviction, there is a reasonable likelihood of a sentence of imprisonment and the defendant does not have the financial ability to retain counsel, advise the defendant that counsel will be appointed by Traffic Court as provided in Rule 1035.
(C) When the defendant appears before a bail commissioner, the bail commissioner shall schedule the next court proceeding before the Traffic Court and give the defendant a hearing notice or subpoena, set collateral as provided in Rule 1034 and local rule, and release the defendant, or if the defendant is unable to post the collateral, commit the defendant.
(D) When the defendant appears before a Traffic Court judge,
(1) if the matter is not ready to proceed, the Traffic Court judge shall schedule the next court proceeding and give the defendant a scheduling order, set collateral as provided in Rule 1034 and local rule, and release the defendant, or if the defendant is unable to post the collateral, commit the defendant.
(2) If the matter is ready to proceed,
(a) when the defendant is arrested pursuant to a warrant issued as provided in Rule 430(A) or (B)(1)(a) or (B)(2), the defendant shall enter a plea. If the defendant pleads guilty, the Traffic Court judge shall impose sentence. If the defendant pleads not guilty, the summary trial shall be conducted.
(b) When the defendant is arrested following a trial in absentia pursuant to a warrant issued as provided in Rule 430(B)(3)(c) and (B)(4),
(i) the Traffic Court judge shall conduct an immediate hearing to determine defendant's financial ability to pay the full amount due.
(ii) If the Traffic Court judge determines the defendant is financially unable to pay the full amount due, the judge may order an installment payment plan as provided in Rule 456(C)(2).
(iii) If the judge determines the defendant is financially able to pay the full amount due, and that there is a likelihood that imprisonment will be imposed at the conclusion of the hearing, the judge shall advise the defendant of the right to retain counsel, and, if the defendant does not have the financial ability to retain counsel, advise the defendant that counsel will be appointed by Traffic Court as provided in Rule 1035. A hearing may be held if retained or appointed counsel is available; otherwise, the hearing shall be rescheduled for a date certain, and the defendant shall be released on collateral as provided in Rule 1034.
(iv) At the conclusion of the hearing, the Traffic Court judge shall proceed as provided in Rule 456(C)(3).
(c) When the defendant is arrested after defaulting on the payment of fine or costs or restitution pursuant to a warrant issued as provided in Rule 430(B)(3)(b) and (B)(4),
(i) the Traffic Court judge shall conduct an immediate hearing to determine whether the defendant is financially able to pay the outstanding fines and costs as previously ordered.
(ii) If the judge determines the defendant is financially unable to pay as previously ordered, the judge may issue a revised payment order or payment plan.
(iii) If the judge determines the defendant is financially able to pay as previously ordered, and that there is a likelihood that imprisonment will be imposed at the conclusion of the hearing, the judge shall advise the defendant of the right to retain counsel, and if, the defendant does not have the financial ability to retain counsel, advise the defendant that counsel will be appointed by Traffic Court as provided in Rule 1035. A hearing may be held if retained or appointed counsel is available; otherwise the hearing shall be rescheduled for a date certain, and the defendant shall be released on collateral as provided in Rule 1034.
(iv) At the conclusion of the hearing, the Traffic Court judge shall proceed as provided in Rule 456(C)(3).
(d) When the defendant is arrested on multiple warrants in cases involving both unadjudicated citations and adjudicated citations with outstanding balances, the matter shall proceed as provided in paragraph (D)(2)(a) (summary trial), or paragraphs (D)(2)(b) or (D)(2)(c) (default hearings). These cases may be joined and the proceeding scheduled before the same Traffic Court judge.
Comment Pursuant to Municipal Court Local Rule 540 and Traffic Court Local Rule 1033, when a defendant is arrested outside the normal business hours of Traffic Court, the defendant is to be taken without unnecessary delay before a Philadelphia Municipal Court bail commissioner who shall proceed as provided in paragraph (C) and in Traffic Court Local Rule 1033.
''Proper issuing authority'' as used in this rule is the traffic court judge or bail commissioner assigned to conduct these proceedings as provided in this rule, Municipal Court Local Rule 540, and Traffic Court Local Rule 1033.
For the procedures for contempt proceedings in Traffic Court cases, see Rules 140, 141, and 142.
For the summary appeal procedures, see Rules 460, 461, and 462.
See Rule 105 for the procedures for promulgating local rules.
Official Note: Adopted September 9, 2005, effective February 1, 2006.
Committee Explanatory Reports:
Final Report explaining the provisions of the new rule published with the Court's Order at 35 Pa.B. 5242 (September 24, 2005).
Rule 1034. Collateral.
(A) Except as provided in this rule, the procedures for collateral shall be as provided in Rule 452.
(B) When determining the amount of collateral, if any,
(1) if the defendant does not have a prior history of failure to appear for scheduled hearings, or there are other reasonable grounds to believe that the defendant will appear, or the defendant is without adequate resources to deposit collateral, the Traffic Court judge or bail commissioner shall consider releasing the defendant on his or her own recognizance, or sign own bail (''SOB''), or on a nominal amount of collateral.
(2) If the defendant has a prior history of failing to appear for Traffic Court scheduled hearings, and notice of the hearings was served personally on defendant, the Traffic Court judge or bail commissioner may set collateral in an amount not to exceed the collateral that may be required for the payment of defendant's unadjudicated citations and the balance of outstanding fines and costs owed on adjudicated citations.
Comment When the collateral is set in a monetary amount, the Traffic Court judge or bail commissioner may permit the defendant to be released from custody when 10% of the amount has been posted.
When determining the amount of collateral to set in paragraph (B)(2), the judge or bail commissioner must take into consideration the defendant's financial resources and ability to post the amount set. The amount of collateral must be reasonable.
See Rule105 for the procedures for promulgating local rules.
Official Note: Adopted September 9, 2005, effective February 1, 2006.
Committee Explanatory Reports:
Final Report explaining the provisions of the new rule published with the Court's Order at 35 Pa.B. 5242 (September 24, 2005).
Rule 1035. Appointment of Counsel.
A) When the Traffic Court judge has preliminarily determined that there is a likelihood that imprisonment will be imposed at the conclusion of a summary traffic proceeding,
(1) a hearing may be held if retained or appointed counsel is available; or
(2) if the defendant is without financial resources or is otherwise unable to employ counsel, the judge shall continue the proceeding, issue a scheduling order, and either appoint counsel or direct the defendant to report for a financial interview to determine eligibility to court-appointed counsel.
(B) When the defendant reports for the financial interview to determine eligibility to court-appointed counsel, the defendant shall provide supporting documentation, such as a driver's license, a DPW card, pay stubs, and any other relevant information. Upon review of the information provided by the defendant during the financial interview, the Traffic Court judge shall enter an appropriate order.
(C) Counsel's appointment shall terminate at the conclusion of the Traffic Court proceeding, unless the Traffic Court judge sentences the defendant to a period of incarceration, in which case, counsel's appointment shall continue through any appeal for a trial de novo in the court of common pleas.
(D) At the time a sentence is imposed that includes a period of incarceration, if the defendant is represented by private counsel, the Traffic Court judge shall advise the defendant that, in the event private counsel ceases to represent the defendant after the imposition of the sentence and before the sentence is carried out, if the defendant is unable to afford counsel, he or she has the right to have counsel appointed to represent the defendant to file an appeal for a trial de novo, and if appointed, counsel's appointment shall continue through the trial de novo in the court of common pleas.
Comment No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 535 U. S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002), Scott v. Illinois, 440 U. S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), and Argersinger v. Hamlin, 407 U. S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
See Rules 460, 461, and 462 for the procedures for summary case appeals.
Official Note: Adopted September 9, 2005, effective February 1, 2006.
Committee Explanatory Reports:
Final Report explaining the provisions of the new rule published with the Court's Order at 35 Pa.B. 5242 (September 24, 2005).
Rule 1036. Traffic Court Hearing Officers.
(A) The Administrative Judge of Traffic Court, or in the event the position of Administrative Judge is vacant, the President Judge of Traffic Court, may appoint Traffic Court hearing officers to conduct post-hearing proceedings, including but not limited to, establishing or re-establishing payment plans, monitoring compliance with payment plans, holding warrant hearings, and performing additional duties as may be identified by local rule.
(B) The Administrative Judge by local rule shall establish the qualifications and educational requirements for the position of Traffic Court hearing officer.
Comment See Pa.R.Crim.P. 105 for the procedures for promulgating local rules.
Official Note: Adopted September 9, 2005, effective February 1, 2006.
Committee Explanatory Reports:
Final Report explaining the provisions of the new rule published with the Court's Order at 35 Pa.B. 5242 (September 24, 2005).
FINAL REPORT1
New Rules of Criminal Procedure 1030, 1031, 1032, 1033, 1034, 1035, and 1036; Correlative Amendments to Rules of Criminal Procedure 105 and 1000
Philadelphia Traffic Court Procedures On September 9, 2005, effective February 1, 2006, upon the recommendation of the Criminal Procedural Rules Committee, the Court promulgated a new Chapter 10, Part B, consisting of new Pa.Rs.Crim.P. 1030, 1031, 1032, 1033, 1034, 1035, and 1036 governing procedures in Philadelphia Traffic Court, and adopted correlative changes to Rules 105 (Local Rules) and 1000 (Scope of Rules).
I. BACKGROUND
The need for changes to the Rules of Criminal Procedure that would accommodate Philadelphia Traffic Court arose in the wake of a federal law suit challenging Philadelphia Traffic Court's procedures related to the post-arrest imprisonment of defendants without affording them counsel in cases in which the defendants were arrested for failing to respond to citations or failing to pay the fines and costs. As part of the settlement the parties reached, Traffic Court's President Judge issued an administrative order that included an explanation of the statewide Criminal Rule procedures governing summary traffic cases and the interplay between these procedures and the Philadelphia Traffic Court procedures to be implemented under the terms of the settlement.
Concerned about the possible conflicts between the Criminal Rules and the Administrative Order, the Committee reviewed the statewide rules and the procedures set forth in the Administrative Order, noting the Court had issued an order in the early 1980's directing that Philadelphia Traffic Court comply with the statewide Criminal Rules. As a result of the Committee's review and the concerns about the inconsistencies, the Committee's Staff informally met several times with representatives from Traffic Court to address the Committee's concerns in an effort to resolve the inconsistencies and to bring the local procedures in line with the statewide Criminal Rules. Because of the vast number of cases Traffic Court handles compared to the rest of the state, several procedural issues were not able to be resolve satisfactorily within the scope of the statewide rules. In view of this, with the Court's approval, the Committee has developed separate Traffic Court rules within the statewide Criminal Rules similar to the current Municipal Court rules in Chapter 10 to accommodate these Traffic Court issues.
II. THE ISSUES
The procedural differences identified as necessitating separate rules concern (1) the use of a form of preliminary arraignment in summary traffic cases; (2) the use of the bail rules for these summary traffic cases; and (3) the procedure whereby the Traffic Court President Judge, with the consent of the Municipal Court President Judge, may delegate to the Municipal Court bail commissioners the authority to conduct the Traffic Court-created summary case arraignments when Traffic Court is not open.
1. Preliminary Arraignment-Type Procedures
The Traffic Court representatives explained the ''preliminary arraignment'' procedure is necessary to provide Traffic Court with the flexibility it needs to accommodate the vast numbers of defendants who have numerous outstanding cases in which the defendants have not responded to the citation, or have failed to pay the fines and costs or to make payments as required by a payment schedule; or when there is a determination of a likelihood of imprisonment and the defendant must be afforded an opportunity to obtain counsel; or when the defendant is arrested outside Traffic Court's normal business hours.
2. Traffic Court ''Bail''
Philadelphia Traffic Court uses the statewide bail rules for summary traffic offenses (1) based on the Philadelphia District Attorney's Office's interpretation that the bail rules apply to Philadelphia Traffic Court cases, and (2) to encourage the Traffic Court judges and bail commissioners to use ROR or nominal bail. When following Rule 452 (Collateral), the Traffic Court judges are imposing the full amount of fines and costs, as permitted by the rule, especially in the most egregious cases of failures to pay or failures to respond, rather than assessing the defendant's ability to pay, and this has lead to numerous defendants being incarcerated for relatively long periods of time without assistance of counsel, one of the problems leading to the federal law suit.
3. Philadelphia Bail Commissioners
Related to the arraignment issue is the question of the propriety of Traffic Court using Municipal Court bail commissioners to handle after-hours release issues for Traffic Court when a defendant is arrested outside the normal business hours of Traffic Court. This procedure has been in place for a number of years pursuant to Municipal Court Local Rule 540 (Bail for Traffic Court Scofflaws). Although the authority for bail commissioners is in 42 Pa.C.S. § 1123(a)(5) (Jurisdiction and venue) [of Municipal Court judges], the Traffic Court and Municipal Court President Judges had agreed to retain this arrangement because the bail commissioners are available 24 hours a day, 7 days a week to process arrests, including arrests in non-traffic summaries that are within the jurisdiction of the Municipal Court. They thought this arrangement is the best use of limited judicial resources within the First Judicial District.
4. Correlative Matters
a. Trial Date on Citation
In addition to the specific issues concerning Traffic Court noted above, there are a few correlative procedures being addressed. First, the Traffic Court representatives suggested, either as a statewide rule or a separate Traffic Court rule, that the summary citation rules be modified to permit police officers to include on the citation a date certain for the summary trial. Traffic Court and the Philadelphia police are able to do this, and such a procedure will ensure actual notice of the summary trial dates. Traffic Court officials believe this will reduce the number of failures to appear.
b. Trial de novo
Another issue concerns the 2003 changes to the Criminal Rules that clarify once a case is appealed for a trial de novo, the case is to remain in the common pleas court for disposition.2 This procedure is contrary to what is occurring in Philadelphia. Both Traffic Court and Philadelphia Common Pleas Court have serious concerns about the significant burden the statewide procedure would have on the Common Pleas Court, especially given the extraordinary number of cases involved and the amount of the fines and costs owed. Both courts note the current practice of returning the cases to Traffic Court for collection following the trial de novo works efficiently and has been successful.
c. Pleas in Summary Traffic Cases
Traffic Court has implemented procedures for defendants to enter guilty pleas and pay their fines and costs via the Internet. They are working on permitting not guilty pleas to be entered in the same manner. The electronic entry of pleas is not currently covered by the Criminal Rules, but given the recent trend to accommodate advanced communication technology in criminal proceedings, this Traffic Court procedure seems a logical next step.
III. DISCUSSION OF THE NEW RULES
The new Philadelphia Traffic Court rules are set forth as new Part B of Chapter 10.3 Generally, Chapter 4 (Procedures in Summary Cases) of the Rules of Criminal Procedure will apply to Traffic Court cases. See Rule 1030 (Scope of Summary Traffic Court Rules).
1. New Rule 1031 (Institution of Proceedings in Summary Traffic Cases)
Rule 1031 sets forth the methods of instituting proceedings in Traffic Court. Rule 1031(A) provides that Traffic Court cases will continue to be instituted as provided in Rules 405--409 when the citation is issued to the defendant, or in Rules 410--414 when the citation is filed, or as provided in Rules 440 and 441 when the case is instituted by arrests without a warrant.4 Paragraph (B) gives the Traffic Court Administrative Judge5 the authority to establish by local rule the scheduling of a summary case trial for a date certain at the time the citation is issued to the defendant. The scheduling notice will be added to the citation, and will advise the defendant that the summary trial is scheduled for a date/time/place certain, and inform the defendant that if the defendant pleads guilty and pays the fine and costs within the applicable time limits, the summary trial will be cancelled.
The purpose of providing the procedures by local rule is to afford some flexibility to the Administrative Judge in determining when and for what cases the notice will be included on the citation.6 This local rule procedure permits the Administrative Judge to institute this form of trial notice on the citation when the technology is in place to add such notice to the citation, and gives the Administrative Judge discretion whether to provide that the trial notices either appear on all citations or only when the charges are for specified types of offenses, such as when the offense charged carries a mandatory prison sentence upon conviction, or for ''special'' programs such as ''drag racing'' and other offenses that may impact on quality of life issues.
2. New Rule 1032 (Pleas in Response to Citation)
Rule 1032 provides for the electronic transmission of a plea and payment of fines and costs or collateral in a summary traffic case pursuant to procedures established by local rule. This procedure is in addition to the methods of entering a plea set forth in Rules 407 and 412.
3. New Rule 1033 (Procedures When Defendant Arrested with Warrant)
Rule 1033 sets forth the procedures following an arrest with a warrant in a Philadelphia Traffic Court case. Paragraph (B) sets forth the information about outstanding citations, outstanding fines and costs, and right to counsel that the bail commissioner or Traffic Court judge must provide a defendant following an arrest with a warrant.
Paragraph (C) sets forth the procedures when the defendant appears before a bail commissioner. These procedures are a form of ''preliminary arraignment.'' The bail commissioner will set the date and time for the defendant to appear in Traffic Court for the scheduled hearing, set collateral, and release the defendant if the collateral is posted or commit the defendant until the collateral is posted or a Traffic Court hearing is held.
Paragraph (D) sets forth the procedures when the defendant appears before the Traffic Court judge. In these cases, the defendant either receives an immediate hearing or, in the Traffic Court judge's discretion, at the initial post-arrest appearance collateral is set and the hearing is set for a date certain.7 The procedures are separated by types of arrest: procedures when the arrest is pursuant to Rule 430(A) or (B)(1)(a) or (2); when the defendant is arrested following a trial in absentia; and when the defendant is arrested after defaulting on the payment of fines and costs.
4. New Rule 1034 (Collateral)
Traffic Court and the bail commissioners, when conducting Traffic Court post-arrest proceedings, will set ''collateral'' as provided in the Criminal Rules, and Traffic Court will continue to forfeit the collateral and apply the money toward the defendants' fines and costs consistent with Rule 452(C). The types of collateral that may be set in a Traffic Court case are expanded in Rule 1034 to include not only a monetary amount not exceeding the full amount of fines and costs as provided in Rule 452(A) and (B) and ROR, but also a 10% cash program and the unsecured bail bond (''sign own bail''8 in Philadelphia).
The Comment includes a cautionary reminder to the Traffic Court judges and bail commissioners that, when setting a monetary amount of collateral, the amount must be reasonable and the judge or bail commissioner must take into consideration the defendant's financial resources and ability to pay.
5. New Rule 1035 (Appointment of Counsel)
One of the major issues in the federal law suit concerned the incarceration of defendants in Traffic Court cases without the appointment of counsel. As part of the settlement, the First Judicial District has established for Traffic Court a mechanism to ensure the appointment of counsel. These procedures are incorporated in Rule 1035.
The Rule 1035 Comment cross-references Argersinger v. Hamlin, 407 U. S. 25, (1972) and its progeny, and cautions that ''no defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial.''9
6. New Rule 1036 (Traffic Court Hearing Officers)
Rule 1036 permits the Administrative Judge to establish for Traffic Court a hearing officer program that would provide for the non-judicial position of hearing officer to handle the cases in which the Traffic Court judge has determined a defendant should have a payment plan to pay the fines and costs. It is envisioned the hearing officer would, for example, conduct the financial background investigations and work with the defendants to establish payment plans, receive the money, monitor the payments, and send out default notices. This position would be similar to the trial commissioners used by Municipal Court but in a more limited capacity.
Pursuant to paragraph (B), the Administrative Judge must establish by local rule the qualifications and educational requirements for the position.
IV. CORRELATIVE CHANGES
Rule 105(A) has been amended to include references to Philadelphia Municipal Court and Philadelphia Traffic Court to make it clear in the rules that these ''minor'' courts have the authority to enact local rules governing procedures in their courts, and that they must proceed pursuant to Rule 105 when they do enact local rules.
To accommodate the addition of new Part B (Philadelphia Traffic Court) in Chapter 10, the Municipal Court Rules, Rules 1002 through 1013, are now new Part A. In addition, the titles to Chapter 10 and Rule 1000 have been amended to include references to Philadelphia Traffic Court.
[Pa.B. Doc. No. 05-1767. Filed for public inspection September 23, 2005, 9:00 a.m.] _______
1 The Committee's Final 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 Committee's explanatory Final Reports.
2 See Court's February 28, 2003 Order, effective July 1, 2003, and the Committee's explanatory Final Report published at 33 Pa.B. 1326 (3/15/2003).
3 Chapter 10 currently sets forth the rules governing Philadelphia Municipal Court proceedings. Chapter 10 has been modified to address both Municipal Court proceedings and Traffic Court proceedings with the Municipal Court rules, now Part A.
4 Because there are no private complaints in Traffic Court, there is no reference to Rules 420-424, the summary case rules governing private criminal complaints in summary cases, in this section of the rule.
5 The Traffic Court Administrative Judge's authority includes all matters related to the daily operations of the court, including promulgation of local rules. The President Judge only assumes this responsibility when there is no Administrative Judge.
6 In addition, this permits the Administrative Judge to modify the procedures without having to go through the ordinarily lengthy process of statewide rule changes. Of course, the Committee pursuant to Rule 105 will monitor any changes to the local rule the Administrative Judge promulgates.
7 Instead of using the terminology ''hearing notice,'' which is the term used in the summary case rules, Traffic Court will continue to issue ''scheduling orders'' to give notice of hearings, and the bail commissioners will continue to use the subpoena/commitment form to give to the defendant as the defendant's notice to appear in Traffic Court and to give to the place of commitment in the event the defendant does not post the collateral. Scheduling orders and subpoena/commitment forms have been in use for a number of years and it will be less confusing for Traffic Court judges and staff, the bail commissioners, and the police if these terms are retained.
8 This Philadelphia-specific local phraseology is commonly abbreviated ''SOB.''
9 See also the Comments to Rules 122 (Assignment of Counsel) and 454 (Trial in Summary Cases).
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