Opinion
CRIMINAL PROCEDURAL RULES DOCKET NO. 497
11-09-2017
IN RE: ORDER AMENDING RULES 1005, 1006, AND 1007 OF THE PENNSYLVANIA RULES OF CRIMINAL PROCEDURE
ORDER
AND NOW, this 9th day of November, 2017, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 47 Pa.B. 186 (January 14, 2017), 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 Pennsylvania Rules of Criminal Procedure 1005, 1006, and 1007 are amended, in the attached form.
This ORDER shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective January 1, 2018. Additions to the rules are shown in bold and are underlined.
Deletions from the rules are shown in bold and brackets.
FINAL REPORT
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.
Amendments to Pa .R.Crim.P. 1005, 1006, and 1007
WRITS OF CERTIORARI AND APPEALS
IN THE PHILADELPHIA MUNICIPAL COURT
On November 9, 2017, effective January 1, 2018, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rules 1005 (Pretrial Applications for Relief), 1006 (Notice of Right to Appeal or to Petition for Certiorari; Guilty Plea Challenge Procedure), and 1007 (Challenge to Guilty Plea) to provide that once a petition for writ of certiorari or notice of appeal has been filed in a Philadelphia Municipal Court case, the Municipal Court cannot take further action in the case.
The Committee recently considered the opinion of the Pennsylvania Superior Court in the case of Commonwealth v. Richards, 128 A.3d 786 (Pa. Super. 2015), appeal denied, 145 A.3d 164 (Pa. 2016). Richards involved a defendant charged with DUI of a controlled substance. The Philadelphia Municipal Court granted defendant's motion to suppress and the Commonwealth petitioned for writ of certiorari to the Philadelphia Court of Common Pleas. After the petition had been filed, the Commonwealth withdrew the charges at a status hearing in the Municipal Court, apparently by mistake. The Court of Common Pleas subsequently dismissed the appeal as moot. The Commonwealth appealed to the Superior Court on the basis that the Municipal Court should not have approved the withdrawal since Pennsylvania Rule of Appellate Procedure 1701 bars a lower court from conducting proceedings when a case is on appeal. The Superior Court held that the Rules of Appellate Procedure do not apply to a court of common pleas acting in its role as an appellate court deciding a petition for writ of certiorari unless that court expressly adopted such rules. This finding was based on a plain reading of Rule of Appellate Procedure 103 that limits the applicability of those rules to the Supreme, Superior, and Commonwealth Courts.
Rule 1006 provides two options for taking an appeal from a Municipal Court judgment: (1) to request a trial de novo before the Common Pleas Court; or (2) to file a petition for writ of certiorari, asking the Philadelphia Court of Common Pleas, sitting as an appellate court, to review the record made in the Municipal Court. See Commonwealth v. Williams, 125 A.3d 425 (Pa.Super. 2015). A trial de novo gives the defendant a new trial without reference to the Municipal Court record while a petition for writ of certiorari asks the Common Pleas Court to review the record made in the Municipal Court. Generally, a defendant is required to raise all claims in a writ of certiorari pertaining to the proceedings in the Municipal Court, or they will be considered waived on appeal. Commonwealth v. Coleman, 19 A.3d 1111 (Pa. Super. 2011).
The specific provision in Rule 1006 related to the filing of a writ of certiorari as an option for appeals from the Municipal Court was added in 1996. The Committee provided the rationale for this addition in the Final Report from that amendment:
Several members noted that, although the Philadelphia Public Defender's office utilized petitions for writs of certiorari fairly frequently, many members of the private bar apparently were not aware of the continued availability of certiorari as an alternative to an appeal for a trial de novo in the court of common pleas. We therefore agreed that the rules should expressly provide for this procedure. Final Report, 26 Pa.B. 989 (March 9, 1996).This provision had codified the right contained in Article V, Section 26 of the Pennsylvania Constitution, and the Judicial Code, 42 Pa.C.S. § 934.
Article V, Section 26 provides:
§ 26. Writs of certiorari.42 Pa.C.S. § 934 provides:
Unless and until changed by rule of the Supreme Court, in addition to the right of appeal under section 9 of this article, the judges of the courts of common pleas, within their respective judicial districts, shall have power to issue writs of certiorari to the municipal court in the City of Philadelphia, justices of the peace and inferior courts not of record and to cause their proceedings to be brought before them, and right and justice to be done.
Unless and until changed by general rule, the judges of the courts of common pleas, within their respective judicial districts, shall have power, in addition to the right of appeal under section 9 of Article V of the Constitution of Pennsylvania, to issue writs of certiorari to the minor judiciary.--------
Pa.R.A.P. 1701 describes the effects on a case when an appeal has been filed. The general rule contained in Pa.R.A.P. 1701(A) states, "Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasi-judicial order is sought, the trial court or other government unit may no longer proceed further in the matter." As the Richards case holds, the Rules of Appellate Procedure do not apply to appeals to the court of common pleas.
The Committee concluded that the principle that the Municipal Court cannot act in a matter once a petition for writ of certiorari has been filed with the Court of Common Pleas would have to be specifically added to the rules to be effective. The Committee concluded that such a provision prohibiting action by the Municipal Court once an appeal was filed would be advisable to prevent confusion such as occurred in Richards where two courts were acting at the same time on the case at cross-purposes.
This provision also is consistent with other rules that prevent cases from moving back and forth between courts of common pleas and the minor judiciary. See e.g. Rule 541 (if the right to preliminary hearing is reinstated after defendant waived preliminary hearing, the preliminary hearing must be in common pleas court, unless the parties and judge agree that the issuing authority conduct the preliminary hearing) and Rule 543 (G) (once a case is bound over to the court of common pleas, the case shall not be remanded to the issuing authority.) It also is consistent with the general principle that an appeal moves the case from one court to another.
In a case in which an appeal for trial de novo has been filed, it is much clearer that any action must be taken by the Court of Common Pleas. The Committee concluded that these appeals should also be included in the new provision for consistency. A new paragraph (B) has been added to Rule 1006 stating that once a case has been appealed from the Municipal Court to the Philadelphia Court of Common Pleas, the Municipal Court may no longer take action on that case.
The Committee noted that Pa.R.A.P. 1701(b) contains a list of actions that a trial court may take after an appeal has been filed as exceptions. The Committee considered whether to incorporate this list into the amendment to Rule 1006. However, the Committee concluded that few of these exceptions were applicable to the types of cases, i.e. summaries and misdemeanors, that would be subject to Rule 1006. Instead, the phrase "unless otherwise provided in these rules" has been included in the new text to permit procedures likely to be undertaken in Municipal Court case appeals, such as bail modification.
Following an inquiry from the Court subsequent to the publication of the original proposed rule changes, the Committee agreed that the proposed amendment to Rule 1006 should be included in other Municipal Court Rules that provide for appeals. In particular, this principle was deemed appropriate for Rule 1007, regarding an appeal from the denial of a motion challenging a guilty plea, and for Rule 1005, regarding appeals from pretrial applications for relief. Therefore, similar language has been added to those two rules. However, new paragraph (D) of Rule 1005 contains the additional requirement that the Commonwealth has certified in the notice of appeal that the order will terminate or substantially handicap the prosecution. This language was added to mirror the restriction governing certain Commonwealth appeals under the appellate rules, such as Pa.R.A.P. 311(d), which requires the Commonwealth to certify that a non-final order will terminate or substantially handicap the prosecution. RULE 1005. PRETRIAL APPLICATION FOR RELIEF. (A) All pretrial applications for relief including those for suppression of evidence may be made orally or in writing. If in writing, a copy of the application shall be submitted prior to trial to the attorney for the Commonwealth. (B) Pretrial applications shall be heard on the day set for trial immediately prior to the trial. If the decision is adverse to the Commonwealth, the Court shall grant the Commonwealth a continuance upon motion of the attorney for the Commonwealth to give the attorney for the Commonwealth the opportunity to take an appeal. (C) The Commonwealth's appeal shall be taken not later than 30 days from the date of the decision on the pretrial application. (D) After an appeal pursuant to this rule is filed , and the Commonwealth has certified in the notice of appeal that the order will terminate or substantially handicap the prosecution, the Municipal Court shall take no further action in the case, unless otherwise provided in these rules.
NOTE: Rule 6005 adopted December 30, 1968, effective January 1, 1969; amended July 1, 1980, effective August 1, 1980; renumbered Rule 1005 and amended March 1, 2000, effective April 1, 2001 [.] ; amended November 9, 2017, effective January 1, 2018. * * * * * * 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. 1478 (March 18, 2000). Final Report explaining the November 9, 2017 amendment regarding the effect that taking an appeal has on the ability of the Municipal Court to take further action in a case published with the Court's Order at 47 Pa.B. ( , 2017). 7 RULE 1006. NOTICE OF RIGHT TO APPEAL OR TO PETITION FOR CERTIORARI; GUILTY PLEA CHALLENGE PROCEDURE. (A) Immediately after the imposition of sentence, the judge shall inform the defendant: (1) in the case of a trial and verdict of guilty: (a) of the right to file a petition for a writ of certiorari within 30 days without costs or to appeal for trial de novo within 30 days without costs; (b) of the right to jury trial on appeal; and (c) that the charge on which the defendant was found guilty in the Municipal Court will be considered by the district attorney as the basis for the preparation of an information after the filing of the notice of appeal; (2) in the case of a plea of guilty: (a) of the right to file a motion challenging the validity of the plea or the denial of a motion to withdraw the plea; (b) of the 10-day time limit within which such motion must be filed; (c) of the right to be represented by counsel in preparing and litigating the motion and to have counsel appointed in the event the defendant is unable to afford counsel; (d) of the right to appeal from the final order disposing of the motion within 30 days after such order; (e) that only the claims raised in the motion may be raised on appeal; and (3) in any case, of the right to counsel to represent the defendant on appeal and of the right to have counsel appointed to represent the defendant on appeal in the event the defendant is unable to afford counsel. (B) After a petition for writ of certiorari or notice of appeal for trial de novo is filed, the Municipal Court shall take no further action in the case, unless otherwise provided in these rules. 8 COMMENT: For the right to file a petition for a writ of certiorari to the court of common pleas, see Article V, Section 26 of the Pennsylvania Constitution, and the Judicial Code, 42 Pa.C.S. § 934. See also Commonwealth v. Speights, 509 A.2d 1263 (Pa. Super. 1986) (petition challenging sufficiency of the evidence), and Commonwealth v. Frazier, 471 A.2d 866 (Pa. Super. 1984) (petition alleging that judge erred in denying motion to suppress). Certiorari is available in non-summary cases only. Compare Rule 460. NOTE: Rule 6006 adopted December 30, 1968, effective January 1, 1969; amended July 1, 1980, effective August 1, 1980; amended February 21, 1996, effective July 1, 1996; renumbered Rule 1006 and amended March 1, 2000, effective April 1, 2001 [.] ; amended November 9, 2017, effective January 1, 2018. * * * * * * COMMITTEE EXPLANATORY REPORTS: Final Report explaining the February 21, 1996 amendments published with the Court's Order at 26 Pa.B. 991 (March 9, 1996). Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. 1478 (March 18, 2000). Final Report explaining the November 9, 2017 amendment regarding the effect that taking an appeal has on the ability of the Municipal Court to take further action in a case published with the Court's Order at 47 Pa.B. ( , 2017). 9 RULE 1007. CHALLENGE TO GUILTY PLEA. (A) A motion challenging the validity of a guilty plea or the denial of a motion to withdraw a guilty plea shall be in writing and shall be filed with the sentencing judge within 10 days after imposition of sentence. The motion shall be disposed of promptly. (B) Execution of sentence shall be stayed and the amount of bail previously determined shall continue until disposition of the motion. (C) The attorney for the Commonwealth shall be given notice of the motion and an opportunity to respond. The judge may schedule a hearing on the motion. (D) Upon entry of a final order denying the motion, the judge shall inform the defendant of the right to appeal the order to the Court of Common Pleas within 30 days after the date of the order. (E) After an appeal pursuant to this rule is filed, the Municipal Court shall take no further action in the case, unless otherwise provided in these rules. COMMENT: The procedures applicable to the taking and the withdrawal of a plea of guilty are set forth in Rules 590 and 591. This rule is intended to provide the exclusive procedure for challenging the validity of a guilty plea or the denial of a motion to withdraw a plea. For a discussion of the general principles underlying the rule, see the Comment to Rule 720. NOTE: Rule 6007 adopted July 1, 1980, effective August 1, 1980; amended March 22, 1993, effective January 1, 1994; renumbered Rule 1007 and amended March 1, 2000, effective April 1, 2001 [.] ; amended November 9, 2017, effective January 1, 2018. * * * * * * COMMITTEE EXPLANATORY REPORTS: 10 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 March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. 1478 (March 18, 2000). Final Report explaining the November 9, 2017 amendment regarding the effect that taking an appeal has on the ability of the Municipal Court to take further action in a case published with the Court's Order at 47 Pa.B. ( , 2017).