In Re: Order Amending Rule 540 of the Pennsylvania Rules of Criminal Procedure

RULE 540. PRELIMINARY ARRAIGNMENT.

(A) In the discretion of the issuing authority, the preliminary arraignment of the
defendant may be conducted by using two-way simultaneous audio-visual
communication. When counsel for the defendant is present, the defendant must be
permitted to communicate fully and confidentially with defense counsel immediately
prior to and during the preliminary arraignment.

(B) If the defendant is under the age of 18 at the time the complaint is filed and is
charged with one of the offenses excluded from the definition of “delinquent act” in
paragraphs (2)(i), (2)(ii), and (2)(iii) of 42 Pa.C.S. § 6302, the issuing authority shall
determine whether the defendant's parents, guardian, or other custodian have been
notified of the charge(s). If the parents, guardian, or other custodian have not been
notified, the issuing authority shall notify them.

(C) At the preliminary arraignment, a copy of the complaint accepted for filing pursuant
to Rule 508 shall be given to the defendant.

(D) If the defendant was arrested with a warrant, the issuing authority shall provide the
defendant with copies of the warrant and supporting affidavit(s) at the preliminary
arraignment, unless the warrant and affidavit(s) are not available at that time, in which
event the defendant shall be given copies no later than the first business day after the
preliminary arraignment.

(E) If the defendant was arrested without a warrant pursuant to Rule 519, unless the
issuing authority makes a determination of probable cause, the defendant shall not be
detained.

(F) The issuing authority shall not question the defendant about the offense(s) charged
but shall read the complaint to the defendant. The issuing authority also shall inform the
defendant:

(1) of the right to secure counsel of choice and the right to assigned counsel in
accordance with Rule 122;

(2) of the right to have a preliminary hearing, except in cases being presented to
an indicting grand jury pursuant to Rule 556.2; and

(3) if the offense is bailable, the type of release on bail, as provided in Chapter 5
Part C of these rules, and the conditions of the bail bond.

(G) Unless the preliminary hearing is waived by a defendant who is represented by
counsel, or the attorney for the Commonwealth is presenting the case to an indicting
grand jury pursuant to Rule 556.2, the issuing authority shall:

(1) 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 on the current case only and no later than 21 days if the defendant is
not in custody or is in custody but not on the current case only unless[:

(a)] extended for cause shown; [or

(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;] and

(2) give the defendant notice, orally and in writing,

(a) of the date, time, and place of the preliminary hearing,

(b) that failure to appear without cause for the preliminary hearing will be
deemed a waiver by the defendant of the right to be present at any further
proceedings before the issuing authority, and will result in the case
proceeding in the defendant's absence and in the issuance of a warrant of
arrest, and

(c) if the case is held for court at the time of the preliminary hearing that if
the defendant fails to appear without cause at any proceeding for which
the defendant’s presence is required, including the trial, the defendant’s
absence may be deemed a waiver of the right to be present, and the
proceeding may be conducted in the defendant’s absence.

(H) After the preliminary arraignment, if the defendant is detained, the defendant shall
be given an immediate and reasonable opportunity to post bail, secure counsel, and
notify others of the arrest. Thereafter, if the defendant does not post bail, he or she
shall be committed to jail as provided by law.

(I) If a monetary condition of bail is set, the issuing authority shall accept payment of
the monetary condition, as provided in Rule 528, at any time prior to the return of the
docket transcript to the court of common pleas.

COMMENT: A preliminary arraignment as provided in this
rule bears no relationship to arraignment in criminal courts of
record. See Rule 571.

Within the meaning of Rule 540, counsel is present when
physically with the defendant or with the issuing authority.

Under paragraph (A), the issuing authority has discretion to
order that a defendant appear in person for the preliminary
arraignment.

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Under paragraph (A), two-way simultaneous audio-visual
communication is a form of advanced communication
technology.

See Rule 130 concerning venue when proceedings are
conducted using advanced communication technology.

Paragraph (D) requires that the defendant receive copies of the
arrest warrant and the supporting affidavit(s) at the time of the
preliminary arraignment. See also Rules 513(A), 208(A), and
1003. See Rule 513.1(F) concerning a defendant’s access to
arrest warrant information that has been sealed.

Paragraph (D) includes a narrow exception that permits the
issuing authority to provide copies of the arrest warrant and
supporting affidavit(s) on the first business day after the
preliminary arraignment. This exception applies only when
copies of the arrest warrant and affidavit(s) are not available
at the time the issuing authority conducts the preliminary
arraignment, and is intended to address purely practical
situations such as the unavailability of a copier at the time of
the preliminary arraignment.

For public access to arrest warrant information, see Rules
513, 513.1, and Commonwealth v. Fenstermaker, [515 Pa.
501,] 530 A.2d 414 (Pa. 1987).

When a defendant has not been promptly released from
custody after a warrantless arrest, the defendant must be
afforded a preliminary arraignment by the proper issuing
authority without unnecessary delay. See Rule 519(A).

Under paragraph (E), if a defendant has been arrested
without a warrant, the issuing authority must make a prompt
determination of probable cause before a defendant may be
detained. See Riverside v. McLaughlin, 500 U.S. 44 (1991).
The determination may be based on written affidavits, an
oral statement under oath, or both.

Pursuant to the 2004 amendment to paragraph (G)(2), at the
time of the preliminary arraignment, the defendant must be
given notice, both orally and in writing, of the date, time, and
place of the preliminary hearing. The notice must also
explain that, if the defendant fails to appear without cause for
the preliminary hearing, the defendant's absence will

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constitute a waiver of the right to be present, the case will
proceed in the defendant's absence, and a warrant for the
defendant's arrest will be issued.

The 2012 amendment to paragraph (G) conforms this rule
with the new procedures set forth in Chapter 5, Part E,
permitting the attorney for the Commonwealth to proceed to
an indicting grand jury without a preliminary hearing in cases
in which witness intimidation has occurred, is occurring, or is
likely to occur.

Paragraph (G)(2)(b) was amended in 2013 changing the
phrase “without good cause” to “without cause” in reference
to whether the defendant’s absence at the time of the
preliminary hearing permits the preliminary hearing to
proceed in the defendant’s absence. This amendment is not
intended as a change in the standard for making this
determination. The change makes the language consistent
with the language in Rule 602 describing the standard by
which a defendant’s absence is judged for the trial to
proceed in the defendant’s absence. In both situations, the
standard is the same.

Paragraph (G)(2)(c) requires that the defendant be advised
of the consequences of failing to appear for any court
proceeding. See Rule 602 concerning a defendant’s failure
to appear for trial; see also Commonwealth v. Bond, 693
A.2d 220, 223 (Pa. Super. 1997) (“[A] defendant who is
unaware of the charges against him, unaware of the
establishment of his trial date or is absent involuntarily is not
absent ‘without cause.’”).

There have been some judicial districts in which the
practice has been to set a date for the preliminary
hearing within the time limits of this rule with no
intention of a preliminary hearing actually taking place
on that date; instead, the preliminary hearing is
automatically continued by the court. This practice is
inconsistent with the intent of the rule.

Nothing in these rules gives the defendant's parents,
guardian, or other custodian legal standing in the matter
being heard by the court or creates a right of the defendant
to have his or her parents, guardian, or other custodian
present.

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 See Rule 1003(D) for the procedures governing preliminary
arraignments in the Philadelphia Municipal Court.

See Chapter 5, Part H, Rules 595, 596, 597, and 598, for the
procedures governing requests for transfer from criminal
proceedings to juvenile proceedings pursuant to 42 Pa.C.S.
§ 6322 in cases in which the defendant was under the age of
18 at the time of the commission of the alleged offense and
charged with one of the offenses excluded from the definition
of “delinquent act” in paragraphs (2)(i), (2)(ii), and (2)(iii) of
42 Pa.C.S. § 6302.

NOTE: Original Rule 119 adopted June 30, 1964, effective
January 1, 1965; suspended January 31, 1970, effective
May 1, 1970. New Rule 119 adopted January 31, 1970,
effective May 1, 1970; renumbered Rule 140 September 18,
1973, effective January 1, 1974; amended April 26, 1979,
effective July 1, 1979; amended January 28, 1983, effective
July 1, 1983; rescinded August 9, 1994, effective January 1,
1995. New Rule 140 adopted August 9, 1994, effective
January 1, 1995; amended September 13, 1995, effective
January 1, 1996. The January 1, 1996 effective date
extended to April 1, 1996; the April 1, 1996 effective date
extended to July 1, 1996; renumbered Rule 540 and
amended March 1, 2000, effective April 1, 2001; amended
May 10, 2002, effective September 1, 2002; amended
August 24, 2004, effective August 1, 2005; amended June
21, 2012, effective in 180 days; amended July 31, 2012,
effective November 1, 2012; amended May 2, 2013,
effective June 1, 2013; Comment revised December 23,
2013, effective March 1, 2014 [.] ; amended November 30,
2016, effective April 1, 2017.

* * * * * *

COMMITTEE EXPLANATORY REPORTS:

Report explaining the provisions of the new Rule 140 published at 22

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Pa.B. 6 (January 4, 1992). Final Report published with the Court's
Order at 24 Pa.B. 4342 (August 27, 1994).

Final Report explaining the September 13, 1995 amendments
published with the Court's Order at 25 Pa.B. 4116 (September 30,
1995).

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 May 10, 2002 amendments concerning
advanced communication technology published with the Court's
Order at 32 Pa.B. 2591 (May 25, 2002).

Final Report explaining the August 24, 2004 amendments concerning
notice that the case will proceed in defendant's absence published
with the Court's Order at 34 Pa.B. 5016 (September 11, 2004).

Final Report explaining the June 21, 2012 amendments concerning
indicting grand juries published with the Court’s Order at 42 Pa.B. 4140
(July 7, 2012).

Final Report explaining July 31, 2012 amendments concerning
defendants under the age of 18 and charged with one of the offenses
enumerated in 42 Pa.C.S. § 6302(2)(i), (ii), or (iii) published with the
Court’s Order at 42 Pa.B. 5340 (August 18, 2012).

Final Report explaining the May 2, 2013 amendments concerning
notice of consequences of failing to appear published the Court’s
Order at 43 Pa.B. 2704 (May 18, 2013).

Final Report explaining the December 23, 2013 Comment revisions
concerning sealed arrest warrant information published with the
Court's Order at 44 Pa.B. 239 (January 11, 2014).

Final Report explaining the amendments concerning the
scheduling of the preliminary hearing published with the Court’s
Order at 46 Pa.B. ( , 2016).

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