FINAL REPORT1
Amendments to Pa.R.Crim.P. 540
SCHEDULING OF PRELIMINARY HEARINGS FOR INCARCERATED DEFENDANTS
On November 30, 2016, effective April 1, 2017, upon the recommendation of the
Criminal Procedural Rules Committee, the Court amended Rule 540 (Preliminary
Arraignment) to (1) clarify the definition of an in-custody defendant for purposes of
scheduling the preliminary hearing, and (2) state that the practice of scheduling the
preliminary hearing within the time-period required by the rule but then automatically
continuing the preliminary hearing is inconsistent with the intent of the rule.
The Committee had been presented with a question regarding the interpretation
of the Rule 540(G)(1) requirement for scheduling the preliminary hearing no later than
14 days after the preliminary arraignment if the defendant is in custody and no later than
21 days if the defendant was not in custody.2 The question was whether the defendant
had to be in custody for the current case or for any matter, even one unrelated to the
current case, for the shorter time-period to be applicable.
The preliminary arraignment rule has had a provision requiring the scheduling of
the preliminary hearing since it was first adopted as Rule 119 in 1964. Originally, the
time limitation was simply “within 3 to 10 days after the arraignment” without reference
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
The practice in Philadelphia is different from the rest of the Commonwealth due to the
different procedures in the Philadelphia Municipal Court. Preliminary arraignment
procedures, including the provisions for the scheduling of the preliminary hearing, which
are generally held only in felony cases, are governed by Rule 1003. Rule
1003(D)(3)(d)(iii) provides that the preliminary hearing “shall not be less than 14 nor
more than 21 days after the preliminary arraignment…” without making a distinction
between defendants who are in custody and those who are not.
Scheduling of Preliminary Hearings for Incarcerated Defendants Final Report:
11/30/2016
to custody. This provision was changed in 2012 as part of the package that reinstated
indicting grand juries, increasing the time limitations to the current 14 and 21 days. The
Final Report to those amendments, 42 Pa.B. 4140 (July 7, 2012), contained the
following explanation:
Rule 540(F)3 includes, as an exception to when an issuing authority would
set the date for the preliminary hearing, the situation when the attorney for
the Commonwealth is presenting the case to an indicting grand jury.
Paragraph (F)(3) has been amended to extend the time for conducting the
preliminary hearing from 3 to 10 days after the preliminary arraignment to
14 to 21 days after the preliminary arraignment to accommodate the
timing for proceeding to an indicting grand jury depending on whether or
not the defendant is in custody.
During the development of these 2012 changes, the Committee also noted that
the 3/10 day time limitation was more honored in the breach in most jurisdictions and
felt that the extended time limitations would be helpful in all cases, not just those which
were being considered for presentation to an indicting grand jury.
In reviewing the history of Rule 540 for this latest question, the Committee
concluded that the intention of the scheduling provision was to ensure that the
defendant received a timely preliminary hearing. The distinction made for a defendant
who was in custody was designed to ensure that a defendant did not languish unduly in
jail before a prima facie determination could be made. In other words, the rule is
premised on the idea that the defendant should receive a timely preliminary hearing on
the possibility that, if no prima facie case would be found, the defendant would be given
his or her liberty. If the reason that a defendant is incarcerated is unrelated to the
charges that would be reviewed at the preliminary hearing, presumably due to charges
or a conviction in another case, the defendant will remain incarcerated even if the
charges in the current case are dismissed. Therefore, the Committee determined that
3
Rule 540 was amended again later in 2012 and then-paragraph (F) was re-lettered to
paragraph (G).
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Scheduling of Preliminary Hearings for Incarcerated Defendants Final Report:
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the rule was intended to apply only to incarceration on the current pending charges.
Additional language has been added to paragraph (G) to make this clarification.
The Committee also noted that there was an omission when the time limitation
language was changed in 2012. Paragraph (G)(1)(b) states that the preliminary hearing
will be scheduled in the listed time periods unless "(b) the issuing authority fixes an
earlier date upon request of the defendant or defense counsel with the consent of the
complainant and the attorney for the Commonwealth." Since the 2012 changes altered
the language of the paragraph to read "fix a day and hour for a preliminary hearing
which shall not be later than 14 days after the preliminary arraignment if the defendant
is in custody and no later than 21 days if not in custody" there is no "earlier date" unlike
in the "3 to 10 days" in the former rule. Therefore this language is no longer necessary
and has been removed.
During the examination of this question, it was noted that the practice in a few
jurisdictions is to schedule the preliminary hearing within the time-period required by the
rule but with no intention for the hearing to be held on that date. Instead, the court
automatically continues the preliminary hearing to a later date. This practice is
inconsistent with the intent of the rule and language has been added to the Comment
stating so.
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Scheduling of Preliminary Hearings for Incarcerated Defendants Final Report:
11/30/2016