Philadelphia Cnty. C.P. CP-Trial Division-Criminal Rule 645

Note: Rescinded September 20, 2019, effective December 2, 2019. Subject Matter addressed by

Pa.R.Crim.P. 461 and 462.

Rule *650. Post-trial

Note: Rescinded September 20, 2019, effective December 2, 2019. Subject matter governed

generally by Pa.R.Crim.P 700 et seq.

.

Rule *655. Hearings on Post-trial Motions and Deferred Sentences

Note: Rescinded September 20, 2019, effective December 2, 2019. Subject matter governed

generally by Pa.R.Crim.P 700 et seq.

Rule *660. Sentencing-Fines-Indigents

Note: Rescinded September 20, 2019, effective December 2, 2019.

Rule *670. Funeral Orders-Prisoners

Requests to permit prisoners to attend the funeral of a family member shall initially be submitted

to the Sheriff’s Office utilizing an approved form which contains all pertinent required

information. If the Sheriff’s Office determines that the request can be accommodated, the

Sheriff’s Office shall forward the request to the Administrative Judge of the Trial Division, or to

the Administrative Judge’s designee, for the entry of an appropriate order. The Petitioner shall

pay all fees as may be required by the Sheriff.

Note: General Court Regulations 72-4, February 9, 1972. Amended September 20, 2019, effective

December 2, 2019.

Rule *680. Prisoners’ Bring-ups

Note: Rescinded September 20, 2019, effective December 2, 2019.

Rule *700

(A) The judge who presided at the trial or who received the plea of guilty or nolo contendere

shall impose sentence unless there are extraordinary circumstances which preclude the

judge’s presence. In such event, another judge shall be assigned to impose sentence.

(B) The supervision of a defendant serving a sentence may be transferred to a judge other than

the original sentencing judge in any of the following situations:

(1) The original sentencing judge has been transferred out of the Criminal Division and

consents in writing to the transfer of the supervision;

(2) The case has been accepted into a First Judicial District reentry program and, after a

hearing or in writing, the defendant and the original sentencing judge consent to

supervision being transferred to a judge presiding over the reentry program;

(3) The defendant is facing a new sentencing in front of a different judge on a separate case

and, after a hearing or in writing, the defendant and the original sentencing judge consent

to supervision being transferred to the other judge; or

(4) There exist extraordinary circumstances, including death, incapacitation

or retirement, which preclude the presence of the original sentencing judge.

Comment:

Local Rule 700(A) tracks Pa.R.Crim.P. 700(A).

Pa.R.Crim.P. 700 also governs sentencings that result from a violation of probation or

parole. See Comm. v. McNeal, 120 A.3d 313 (Pa. Super. 2015). Accordingly, Local Rule

700(B) flows from Pa.R.Crim.P. 700(B), which invites promulgation of local rules to

expand the circumstances under which transfers from one judge to another may be made.

Local Rule 700(B) reflects the recognition that transfers are appropriate under a variety

of circumstances, including where a defendant has the opportunity to enter one of the

First Judicial District’s reentry programs or in order to consolidate a violation hearing in

front of the “back judge” with the sentencing for a new case in front of a different judge.

Note: Adopted by order dated September 25, 2020. Published in the Pennsylvania Bulletin on October

24, 2020 and effective November 23, 2020.

Rule *708. Violation of Probation or Parole. Revocation Hearings

(A) A probation officer may arrest or cause to be arrested, with or without a warrant, any person

(“Defendant”) who has been placed on probation or parole for: failure to report as required by

the terms of that person’s probation or parole, or for any other violation of that person’s

probation or parole as provided by law, including 42 Pa.C.S. §§ 9913 and 9754.

Explanatory Comment: 42 Pa.C.S. § 9913 authorizes a probation officer to arrest or detain any

person on probation or parole for any violation of that person’s probation or parole, imposed as

provided in 42 Pa.C.S. § 9754 or otherwise.

A probation officer must exercise discretion in determining when a detainer ought to be issued, and

shall reference the rule(s) and condition(s) of probation or parole allegedly violated by the Defendant.

(B) The procedure which follows shall be utilized whenever any Defendant who has been

released on county probation or parole in Philadelphia County is arrested or detained by law

enforcement officers to determine whether the Defendant’s probation or parole ought to be

revoked.

(1) Gagnon I Hearing. A hearing will be held before a Trial Commissioner or a judge as

soon as practicable and within a reasonable time after the Defendant has been arrested or

detained in order to determine whether there is probable cause to believe that the

Defendant has committed a violation of his probation or parole. At the hearing, the

Defendant shall:

a. receive notice of the alleged violation of probation or parole;

b. be provided the opportunity to appear in person or by two-way simultaneous audio-visual communication and to present evidence in his own behalf;

c. be provided a conditional right to confront adverse witnesses;

d. be provided counsel; and

e. be provided a written hearing disposition report.

At the conclusion of the Gagnon I hearing, if the Trial Commissioner or judge determines

that probable cause exists to believe that the Defendant has committed a violation of one or

more condition of Defendant’s probation or parole, the Defendant may be detained pending a

Gagnon II hearing.

Explanatory Comment: See generally Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d

484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) which

require that a person arrested and detained due to an alleged violation of a condition of p robation or

parole be provided a “preliminary revocation hearing” (a “Gagnon I hearing”) conducted by an

independent decisionmaker and a “final revocation hearing” (a “Gagnon II hearing”) to determine

whether the person may be detained and the person’s probation or parole be revoked.

As noted above, the Gagnon I hearing need not be conducted by a judge, and may be conducted

utilizing two-way simultaneous audio visual communications. See Comment to Pa.R.Crim.P. 119.

Supervisory Probation staff have been designated in some counties to conduct Gagnon I hearings.

The Gagnon I hearing must be held within a reasonable period after the person is arrested and detained.

See Commonwealth v. Ferguson, 2000 Pa.Super 312, 761 A.2d 613, 619 (2000). Requiring that a

Gagnon I hearing be held within a mandatory or inflexible number of days, without regards to the

individualized factors present in each case, may result in delay in the scheduling and holding some or

all Gagnon I hearings.

Whether bail has been ordered and posted in connection with the new charge(s) is not dispositive in

determining whether a person who is on probation or parole shall be released or will continue to be

detained for violating the condition(s) of probation or parole. The sole consideration before the fact

finder in the Gagnon I hearing is whether probable cause exists to believe that the person has violated

any condition of the person’s probation or parole.

When a detainer is issued due to conduct which resulted in an arrest, the person on probation or parole

may only be detained if after the Gagnon I hearing, evidence of some facts in addition to the facts of

arrest is necessary to determine that the person on probation or parole violated any applicable

conditions. See Commonwealth v. Davis, 234 Pa. Super 31, 38, 336 A.2d 616 (1975).

A Gagnon I hearing is not necessary when a probable cause determination is made, after the

preliminary hearing where the Defendant is held for trial or upon the conviction of an offense

committed while the Defendant had been released on probation or parole, that the Defendant has

violated a condition of probation or parole. See Commonwealth v. Davis, 234 Pa. Super 31, 336 A.2d

616 (1975) for the specific scenarios held not to require a Gagnon I hearing in Phila delphia County.

(2) Gagnon II Hearing. If at the conclusion of the Gagnon I hearing, it was determined that

probable cause existed to believe that the Defendant violated one or more condition of

Defendant’s probation or parole, a hearing must be held to determine whether the facts

warrant revocation of the Defendant’s probation or parole and whether probation or

parole is still an effective vehicle to accomplish the rehabilitation and a sufficient

deterrent against future antisocial conduct, as follows:

a. a written request for revocation shall be filed as required by Pa.R.Crim.P. 708(A);

b. a hearing will be held before the sentencing judge or a judge generally assigned to

hear violations of probation or parole;

c. a hearing will be scheduled as requested by the sentencing judge or judge

generally assigned to hear violations of probation or parole

i. within a reasonable period after the filing of the written request for revocation

required by Pa.R.Crim.P. 708(A); or

ii. within a reasonable period after a verdict is rendered in connection with the

new charges which had resulted in Defendant’s arrest;

d. the Defendant shall be provided counsel and the opportunity to be heard in person

and to present witnesses and documentary evidence;

e. the defendant shall be provided the right to confront and cross-examine adverse

witnesses; and

f. the hearing shall proceed as provided in Pa.R.Crim. P. 708.

Explanatory Comment: The judge may not revoke probation or parole on arrest alone, but on ly upon a

finding of a violation thereof after a hearing, as provided in Pa.R.Crim.P. 708. However, the judge

need not wait for disposition of new criminal charges to hold such hearing. See Commonwealth v.

Kates, 452 Pa. 102, 305 A.2d 701 (1973).

The purpose of the Gagnon II Hearing is not to determine whether the person who is on probation or

parole has committed a new offense, which the Commonwealth must establish by proving all of the

requisite elements of the new offense beyond a reasonable doubt, but rather it is to establish the

violation of a condition of probation or parole, which must be proved by a preponderance of the

evidence, see Commonwealth v. Allshouse, 2009 Pa.Super 47, 969 A.2d 1236, 1240 (2009) and cases

cited therein, and further to determine “whether the conduct of the probationer indicates that the

probation has proven to be an effective vehicle to accomplish rehabilitation and a sufficient deterrent

against antisocial behavior.” Commonwealth v. Kates, supra, 452 Pa. at 115 (1973).

Note: Adopted March 6, 2019, effective April 29, 2019. See Administrative Order No. 07 of 2019.

Rule *710. Guilty Pleas Refused by Trial Judge

Where a negotiated plea has been refused by the trial judge after hearing the facts of the case and

the defendant is permitted to withdraw the guilty plea, the court clerk shall note on the transcript,

with specificity, the District Attorney’s recommendation and that the plea bargain was declined

by the judge.

This procedure is intended to prevent counsel from taking the same case before another judge

who might accept the negotiation that was previously refused by the court.

Note: Amended by the Municipal Court Board of Judges on November 18, 2005; effective March

15, 2006.

Rule *780. Confiscation and Disposition of Firearms

(A) Any firearm or other deadly weapon used in the commission of a crime which is offered as

an exhibit in any criminal proceeding in which the defendant who was in possession of the

weapon is convicted shall be confiscated by the Trial Judge.

The Trial Judge shall order the confiscated weapon to be destroyed by the Office of Judicial

Records or awarded to the Police Department, the Sheriff’s Office or the Superintendent of

Prisons as per Subsections B, C and D immediately upon expiration of the time allowed for an

appeal, if an appeal is not taken.

If an appeal is taken, the confiscated weapon shall be held by the Office of Judicial Records and

shall be destroyed or awarded only if the conviction of the possessor/defendant is sustained on

appeal.

This Rule shall not be operative in homicide cases or when lawful ownership of the weapon is

proved to be in an innocent person.

(B) The Office of Judicial Records shall keep a record of all firearms and other deadly weapons

directed to be confiscated and destroyed or awarded by the Court. That record shall include a

description of the firearms or other deadly weapons which have been destroyed or awarded and

the date of same. That record shall be forwarded on a quarterly basis to the President Judge. A

record of the items awarded to the Police Department, the Sheriff’s Office or the Superintendent

of Prisons shall be furnished to that unit on a quarterly basis.

(C) Awards shall only be made upon written request by the Police Department, the Sheriff’s

Office or the Superintendent of Prisons to the Office of Judicial Records, who shall insert the

request in the appropriate file prior to listing for trial. Awards to the Police Department or the

Sheriff’s Office or the Superintendent of Prisons shall be only for cases involving thirty-eight

(38) caliber handguns, Model 12 Winchester rifles, Model 1200 Winchester rifles, shotguns and

any rifle possessing a telescopic sight. These firearms shall be disposed of at the discretion of the

Police Department office to which the firearms are awarded. The firearms shall be awarded as

per Subsection A.

(D) The Police Department, the Sheriff’s Office or the Superintendent of Prisons may also

request that other firearms be awarded to their custody through written communication with the

Office of Judicial Records. If the request is granted, the firearm(s) will be handled as per

Subsections A, B and C.

(E) The weapons contemplated by this Rule and awarded to the Police Department, the Sheriff’s

Office or the Superintendent of Prisons shall be for official purposes only.

Note: Star Rule *1122(a), adopted September 23, 1971, as amended February 15, 1973; further

amended March 18, 1977; further amended by the Board of Judges February 21, 1985, General

Court Regulation 85-1, effective May 27, 1985. Former rule *700 was renumbered and amended

September 20, 2019, effective December 2, 2019.

Rule *785. Rule Governing Analysis and Destruction of Narcotic and Dangerous Drugs

I. Analysis of Drugs.

A. On and after March 1, 1977, in every instance of a seizure of any drug which appears on

the Schedules of Controlled Substances of the Uniform Controlled Substance, Drug,

Device and Cosmetic Act, the Act of April 14, 1972, P.L. 233, 35 Purdon’s §780-101—

780-144, the Police Commissioner or the Police Commissioner’s designee shall, within

15 days after receipt thereof, perform or cause to be performed an analysis of such drugs,

such analysis to include qualitative identification; weight and quantity where appropriate.

B. Within five days after the report of such analysis is received, the Commissioner or his the

Police Commissioner’s designee shall forward a copy thereof to the appropriate District

Attorney and inform the District Attorney of the location where the subject drafts are

being held.

C. The failure to have an analysis made or to forward a copy thereof within the time

specified in subdivisions A and B of this section shall not be deemed or construed to bar

the making or granting of a motion pursuant to this Rule or the prosecution of a case

involving such drugs.

II. Pretrial Motion to Destroy Dangerous Drugs.

A. Subject to the exception in subdivision B, and the limitations in paragraph (2) of

subdivision C hereof, the District Attorney shall, within twenty (20) days after receipt of

the report of analysis, move in a Court of Common Pleas for an order of destruction of

any drug which appears in the Schedules of Controlled Substances of the Uniform

Controlled Substance, Drug, Device and Cosmetic Act in felony or misdemeanor cases

involving the possession or sale of such drugs.

B. Exception: If special circumstances exist, making the destruction of any drug not feasible

in a particular case, the District Attorney shall move the Court of Common Pleas for

permission to retain the drugs pretrial and shall set forth in the petition the nature of the

special circumstances and the proposed place and manner of keeping the drugs pending

trial.

C. A motion for an order of destruction of such drugs shall be in writing, have attached

thereto a copy of the report of analysis, and shall be made in the following manner:

(1) Ex parte:

Where no defendants have been arrested in connection with the seizure of such drugs

and a showing is made upon affidavit that the likelihood of any future arrest in

connection therewith is non-existent; or

(2) Upon notice:

When a defendant has been arraigned upon an information charging him with a

felony or misdemeanor involving the possession or sale of such drugs and the drugs

sought to be destroyed are material to the prosecution of said information.

D. When such motion is ex parte, the Court may order the destruction of all or part of the

subject drugs.

E. When such motion is upon notice, further proceedings shall be as provided in Section

III hereof.

III. Proceedings of Motion Upon Notice.

A. When such motion is on notice, a hearing thereon shall be held by the Court before

which it is returnable not later than thirty (30) days after the return date and the defendant

shall be present at such hearing.

B. A hearing held pursuant to this section shall be conducted and recorded in the same

manner as would be required were the witnesses testifying at trial. The District Attorney

shall establish by competent evidence the nature and quantity of the drugs which are the

subject of the motion. Each party shall have the right to call and cross-examine witnesses

and to register objections and to receive rulings of the Court thereon. Participation by the

defendant in such hearing is in no way an acknowledgment of ownership or possession of

the material which is the subject of the hearing.

C. If the Court finds upon the conclusion of the hearing that neither the prosecution nor

the defendant will be prejudiced thereby it may grant the motion and may make such

order as it may deem appropriate for the destruction of part or all of such drugs.

D. A defendant may waive such hearing and consent to the granting of the motion and

entry of an order of destruction either by sworn affidavit or by personal appearance in

Court and declaration on the record of such waiver and consent. Such waiver is in no way

an acknowledgment of ownership or possession of the material which is the subject of the

motion and order.

IV. Orders of the Court.

A. In any proceeding brought pursuant to this Rule, the Court may grant or deny any motion

made hereunder or the relief requested therein in whole or in part and issue any order

thereon as it may deem proper and as the interests of justice may require in order to

effectuate the provisions of this Rule.

B. An order of destruction of any drug which appears in the Schedules of Controlled

Substances of the Uniform Controlled Substance, Drug, Device and Cosmetic Act issued

by the Court pursuant to this Rule shall state the time within which the provisions of such

orders are to be complied with. It shall direct the person having custody of the drug to

make provision for the destruction thereof in the presence of four witnesses one of whom

shall be designated by each of the following: the Police Commissioner, the Sheriff, the

District Attorney and the Office of Judicial Records.

V. Affidavit of Destruction.

An affidavit attesting to the date, time, place and manner of destruction of any drug pursuant to

an order therefor and identifying the same by reference to the report of analysis or by other

identifying number or system and the order of the Court issued thereon shall be filed with the

Court by the person who destroyed the drugs and by each of the witnesses required to be present

by Section IV(B) of this Rule.

VI. Rules of Evidence—Drugs Destroyed Pursuant to Court Order.

The destruction of drugs pursuant to the provisions of this Rule shall not preclude the admission

at trial or in a proceeding in connection therewith of testimony, the chemist’s report, photographs

of the drugs or other evidence where such testimony or evidence would otherwise have been

admissible if such drugs had not been destroyed.

Note: Star Rule *329, February 17, 1977. Former rule *705 was amended September 20, 2019,

effective December 2, 2019

Rule *786. Criminal Court Priority List

(A) Whenever an attorney has more than one criminal case listed in different courtrooms on the

same day, the attorney shall appear in each courtroom wherein the attorney’s case or cases

are listed and provide scheduling and contact information. The attorney will be expected to

report to the highest priority room to which the attorney has been assigned.

Priority List (listed in the order of their priority)

(1) Homicide Case Assignment

(2) Criminal Calendar Program

(3) Major Felony Program

(4) Felony Waiver Program

(5) Municipal Court List Rooms

(6) Criminal Motions List and PCRA Hearings

(7) Any Other Assignment.

An attorney not actually on trial who desires to attend a Preliminary Hearing must obtain the

prior approval of the Judge presiding in the highest priority room to which the attorney is

assigned.

Note: Administrative Regulation 74-4, December 2, 1974; superseded by Administrative Regulation 79-4,

October 22, 1979; amended December 8, 1980, effective immediately.

(B) Federal and Common Pleas Court Conflicts

(1) Common Pleas Court

Since the District Court lists criminal and civil cases interchangeably, the Common Pleas

Court shall follow the same policy with respect to the engagement of counsel as set forth

under civil cases, including Advance Special Listings.

(2) District Court

The District Court shall recognize as engaged any attorney-of-record in any homicide or

major criminal case actually on trial and where same has been scheduled for trial by the

appropriate Calendar Judge at the calendar call held no more than three days prior to the

actual trial date.

Note: General Court Regulation 73-2, March 2, 1973, as amended by General Court Regulation

73-13, supplement July 10, 1974. Former rule *805 was renumbered and amended September 20,

2019, effective December 2, 2019.

Rule *800. Continuances in Common Pleas Felony and Municipal Court Cases

Note: Rescinded September 20, 2019, effective December 2, 2019. Subject matter governed

generally by Pa.R.Crim.P. 106.

Rule *801. Continuances at Preliminary Hearings

Note: Rescinded September 20, 2019, effective December 2, 2019. Subject matter governed

generally by Pa.R.Crim.P. 541 et seq.

Rule *810. Applications for Continuances

Note: Rescinded September 20, 2019, effective December 2, 2019. Subject matter governed

generally by Pa.R.Crim.P. 106

Rule *820. Continuances Involving Defendants in Custody

Note: Rescinded September 20, 2019, effective December 2, 2019.

Rule *900. State and Federal Prisoners in Philadelphia County Prison System

Note: Rescinded September 20, 2019, effective December 2, 2019.

Rule *910. Probation Detainer and Violation Procedure

Note: Rescinded by Joint Administrative Order No. 08-2018 issued October 9, 2018, effective

immediately.

Rule *920. Appeals Procedure

Rescinded. Subject matter governed generally by Pa.R.Crim.P. 720 et seq.

POST-CONVICTION PROCEEDINGS

Rule *950. Post-Conviction Hearing Act Procedure

Note: Rescinded September 20, 2019, effective December 2, 2019. Subject matter governed

generally by Pa.R.Crim.P. 900 et seq.