PRIOR PRINTER'S NO. 243 PRINTER'S NO. 1686
No. 225 Session of 1979
INTRODUCED BY MESSRS. WACHOB, W. D. HUTCHINSON, IRVIS, RYAN,
MANDERINO, SCIRICA, NOYE, RHODES, MULLEN, RAPPAPORT, POLITE,
RICHARDSON, LETTERMAN, O'DONNELL, ZELLER, WILLIAMS, KNEPPER,
D. M. FISHER, CIMINI, WHITE, LASHINGER, COHEN, DeWEESE,
KUKOVICH, D. R. WRIGHT, STUBAN, DONATUCCI, ALDEN, DAWIDA,
MICHLOVIC, STEIGHNER, CAPPABIANCA, SHADDING, REED AND
McINTYRE, FEBRUARY 12, 1979
AS REPORTED FROM COMMITTEE ON APPROPRIATIONS, HOUSE OF
REPRESENTATIVES, AS AMENDED, JUNE 6, 1979
AN ACT
1 Amending Title 18 (Crimes and Offenses) of the Pennsylvania
2 Consolidated Statutes, providing for a program of pretrial
3 diversion.
4 Statement of Legislative Intent.--The General Assembly hereby
5 declares the public policy of this Commonwealth to be that
6 persons arrested and charged with nonviolent offenses who have
7 not yet made crime a way of life may be placed in a pretrial
8 diversion program, thereby increasing the availability of
9 criminal court resources and facilities for the trial of violent
10 and repeat offenders. FURTHER, THE GENERAL ASSEMBLY DECLARES THE <--
11 PUBLIC POLICY OF THIS COMMONWEALTH TO BE THAT THE DISTRICT
12 ATTORNEY OF EACH COUNTY SHALL HAVE THE SOLE RIGHT TO EXERCISE
13 THE DISCRETION IN EVALUATING CASES APPROPRIATE FOR DIVERSION TO
14 ARD, SUBJECT ONLY TO THE COURT'S APPROVAL, AND THE DISTRICT
15 ATTORNEY'S DETERMINATION THAT A CASE IS NOT APPROPRIATE FOR
1 DIVERSION SHALL BE DISPOSITIVE AND NOT SUBJECT TO APPEAL.
2 The General Assembly of the Commonwealth of Pennsylvania
3 hereby enacts as follows:
4 Section 1. Title 18, act of November 25, 1970 (P.L.707,
5 No.230), known as the Pennsylvania Consolidated Statutes, is
6 amended by adding a chapter to read:
7 CHAPTER 10
8 PRETRIAL DIVERSION
9 Sec.
10 1001. Definitions.
11 1002. Implementation of program.
12 1003. Screening of defendants.
13 1004. Criteria for eligibility.
14 1005. Ineligibility.
15 1006. Defendant's participation to be voluntary.
16 1007. Hearing procedure.
17 1008. Conditions of program.
18 1009. Revocation of participation in program.
19 1010. Dismissal of charges upon successful completion
20 of program.
21 1011. Confidentiality.
22 1012. Sealing of records. RECORDS. <--
23 § 1001. Definitions.
24 As used in this chapter the following words and phrases shall
25 have, unless the context clearly indicates otherwise, the
26 meanings given to them in this section:
27 "EXPUNGE." THE ELIMINATION OF ALL IDENTIFIERS WHICH MAY BE <--
28 USED TO TRACE THE IDENTITY OF AN INDIVIDUAL, ALLOWING REMAINING
29 DATA TO BE USED FOR STATISTICAL PURPOSES.
30 "Pretrial diversion." The court supervised process of
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1 diverting a consenting defendant from the usual channels of the
2 criminal justice system to a program through which the defendant
3 may earn a dismissal of the charges against him.
4 § 1002. Implementation of program.
5 The court of common pleas in each judicial district shall
6 establish and implement a program of pretrial diversion in
7 accordance with the provisions of this chapter and rules adopted
8 hereunder BY THE SUPREME COURT. <--
9 § 1003. Screening of defendants.
10 The attorney for the Commonwealth shall review arrest records
11 AND OTHER PERTINENT INFORMATION and shall determine IN HIS <--
12 DISCRETION which defendants are eligible for pretrial diversion
13 under the guidelines established by this act. Consideration of a
14 defendant for the program shall be automatic and in no case
15 shall a defendant be required to submit an application for
16 pretrial diversion. HOWEVER, NOTHING HEREIN, SHALL BE CONSTRUED <--
17 TO PROHIBIT THE ATTORNEY FOR THE COMMONWEALTH, IN HIS
18 DISCRETION, FROM REQUIRING A DEFENDANT, UNDER OATH TO SUBMIT
19 BACKGROUND INFORMATION IN DETERMINING THE ELIGIBILITY OF A
20 DEFENDANT FOR THE PROGRAM.
21 § 1004. Criteria for eligibility.
22 The IN THE EXERCISE OF HIS DISCRETION THE following factors <--
23 shall be considered BY THE ATTORNEY FOR THE COMMONWEALTH as <--
24 positive criteria for the eligibility of a particular defendant
25 for pretrial diversion:
26 (1) The defendant is likely to benefit from the program
27 and his participation therein is not contrary to the public
28 interest in the judgement of the Commonwealth attorney.
29 (2) The offense alleged to have been committed was the
30 result of circumstances unlikely to recur.
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1 (3) The defendant allegedly acted under strong
2 provocation.
3 (4) The victim of the offense allegedly induced or
4 facilitated the perpetration of the offense.
5 (5) ANY OTHER RELEVANT CRITERIA. <--
6 § 1005. Ineligibility.
7 The following factors shall be deemed to render a defendant <--
8 ineligible for pretrial diversion:
9 (1) The defendant is accused HAS BEEN HELD FOR COURT <--
10 PURSUANT TO THE PENNSYLVANIA RULES OF CRIMINAL PROCEDURE ON A
11 CHARGE of murder, rape, aggravated assault, RAPE AS PROVIDED <--
12 FOR IN SECTION 3121 (RELATING TO RAPE), robbery and
13 kidnapping. or any violation of Article E (relating to <--
14 offenses against public administration).
15 (2) The defendant has twice previously been convicted of <--
16 any misdemeanor or felony WITHIN FIVE YEARS or who has twice <--
17 previously participated in a pretrial diversion program
18 WITHIN FIVE YEARS. <--
19 (3) FOR THE PURPOSE OF COMPUTING THE FIVE-YEAR PERIOD OF <--
20 TIME BETWEEN CONVICTIONS AS PROVIDED FOR IN PARAGRAPH (2) ANY
21 PORTION OF A SENTENCE SERVED IN TOTAL CONFINEMENT, PARTIAL
22 CONFINEMENT, OR UNDER A PRE-RELEASE PLAN AUTHORIZED BY LAW,
23 WITHIN OR WITHOUT THIS COMMONWEALTH, SHALL NOT BE INCLUDED IN
24 THE COMPUTATION OF ANY OF SAID FIVE-YEAR PERIODS. IT IS
25 HEREBY DECLARED THAT THE INTENT OF SAID PROVISIONS IS THAT
26 SUCH FIVE-YEAR PERIODS SHALL RUN ONLY DURING THE TIME ANY
27 SUCH PERSON SHALL BE AT LIBERTY INCLUDING SUCH TIME AS HE
28 SHALL BE ON PROBATION OR PAROLE, AND EXCLUDING ANY PERIOD
29 DURING WHICH THE PERSON IS AT LIBERTY AFTER AN ESCAPE AS
30 PROVIDED FOR IN SECTION 5121 (RELATING TO ESCAPE).
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1 § 1006. Defendant's participation to be voluntary.
2 (a) General rule.--Participation by the defendant in the
3 pretrial diversion program shall be voluntary. The offer of
4 pretrial diversion shall not be used to replace the entering of
5 nolle prosequi, nor induce a plea or otherwise coerce the
6 defendant.
7 (b) Rules to insure voluntariness.--The Supreme Court shall
8 promulgate rules to insure the voluntariness of participation
9 and the knowing waiver of the right to a speedy trial and to be
10 prosecuted within the time period set by the applicable statute
11 of limitations.
12 § 1007. Hearing procedure.
13 (a) General rule.--The Supreme Court shall promulgate rules
14 governing the procedure for preindictment and postindictment
15 motions for pretrial diversion.
16 (b) Notice.--The defendant and any victims of the alleged
17 crime shall be given adequate notice of the pretrial diversion
18 motion and hearing.
19 (c) Prehearing interview and recommendations.--Prior to any <--
20 diversion hearing, members of the diversion services staff shall
21 THE PRESENTATION OF A MOTION IN COURT FOR DIVERSION, THE <--
22 ATTORNEY FOR THE COMMONWEALTH SHALL BE RESPONSIBLE FOR ARRANGING
23 AN interview WITH the defendant and develop DEVELOPING a <--
24 recommendation for the court. Such recommendation shall include
25 a plan for supervision and treatment consistent with the
26 purposes of this act.
27 (d) Time of pretrial interview.--The prehearing interview <--
28 shall be held after the trial hearing.
29 § 1008. Conditions of program.
30 (a) General rule.--The court may impose the same conditions
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1 and restrictions on a participant in pretrial diversion as those
2 which could be imposed if such person were on probation, EXCEPT <--
3 THAT THE PROVISIONS OF SECTION 17.1, ACT OF AUGUST 6, 1941
4 (P.L.861, NO.323), REFERRED TO AS THE PENNSYLVANIA BOARD OF
5 PROBATION AND PAROLE LAW, SHALL NOT APPLY TO THESE PROCEEDINGS.
6 In addition, costs not exceeding $50 $300 and restitution may be <--
7 imposed at the court's discretion.
8 (b) Penalties.--No penalty which would have resulted from a
9 conviction may be imposed upon the defendant as a condition of
10 participation in pretrial diversion. However, any mandatory
11 penalties for acts not part of the crime in question may be
12 imposed by the court.
13 (c) Duration of program.--The court may order participation
14 in the program for periods of between six months and two years. <--
15 A PERIOD NOT EXCEEDING TWO YEARS OR THE MAXIMUM SENTENCE FOR THE <--
16 CRIME INVOLVED WHICHEVER IS LESS.
17 (d) Suspension of bail.--A person placed in a pretrial
18 diversion program shall have his bail requirement, if any,
19 suspended during the period of pretrial diversion.
20 § 1009. Revocation of participation in program.
21 (a) General rule.--The Supreme Court shall promulgate rules
22 and regulations governing the procedure for the revocation of a
23 defendant's privilege of participating in a pretrial diversion
24 program.
25 (b) Revocation.--Upon a finding at a revocation hearing or a
26 dismissal hearing that the defendant has violated the conditions
27 established for his participation in the pretrial diversion
28 program, the court shall MAY revoke its approval and the <--
29 defendant's participation shall be terminated without prejudice.
30 If the defendant is subsequently prosecuted, the judge who <--
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1 presided at the termination hearing shall be disqualified from
2 presiding at the trial.
3 § 1010. Dismissal of charges upon successful completion of
4 program.
5 Upon completion of the court established period of the
6 program, a dismissal hearing shall be held to determine if the <--
7 defendant has complied with the conditions set by the court. If
8 the court so determines the charges against the defendant shall
9 be dismissed. PROGRAM, AND WHERE A MOTION FOR REVOCATION HAS NOT <--
10 BEEN FILED, THE COURT SHALL DISMISS THE CHARGES AGAINST THE
11 DEFENDANT. The Supreme Court shall promulgate rules for the
12 procedure at such hearing. FOR SUCH A DISMISSAL. <--
13 § 1011. Confidentiality.
14 Any statements, testimony, program records and reports
15 relating to a defendant's participation in a pretrial diversion
16 program shall be deemed confidential and shall not be admissible
17 against the defendant in subsequent judicial proceedings.
18 § 1012. Sealing of records. RECORDS. <--
19 (A) STATUS OF RECORDS AND PROCEDURE.--All records kept in <--
20 the regular course of business by law enforcement agencies and
21 courts relating to individual pretrial diversion cases shall be
22 treated as confidential and available to other law enforcement
23 agencies and judicial officials only upon a showing of good <--
24 cause. FOR THE PURPOSES RELATED TO BAIL OR SENTENCING. Upon <--
25 successful completion of the pretrial diversion program AND <--
26 DISMISSAL OF CHARGES the court shall so inform the appropriate
27 law enforcement agencies, district attorney's office, probation
28 officer and any other criminal justice agency who shall seal all <--
29 of their records relating to the individual and shall maintain a
30 master file of all such cases with appropriate identical
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1 information. Notice of all individuals whose file has been
2 sealed shall be forwarded to the Pennsylvania Board of Probation
3 and Parole which shall maintain a Statewide master file
4 available to the court or district attorney upon request.
5 EXPUNGE ALL RECORDS OF ARREST RELATING TO THE DEFENDANT'S <--
6 PARTICIPATION IN THE PRETRIAL PROGRAM ON THAT CHARGE.
7 NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, THE
8 PROSECUTING ATTORNEY AND THE CENTRAL REPOSITORY OF THE
9 PENNSYLVANIA STATE POLICE SHALL, AND THE COURT MAY, MAINTAIN A
10 LIST OF THE NAMES AND OTHER CRIMINAL HISTORY RECORD INFORMATION
11 OF PERSONS WHOSE RECORDS ARE REQUIRED BY LAW OR COURT RULE TO BE
12 EXPUNGED WHERE THE INDIVIDUAL HAS SUCCESSFULLY COMPLETED THE
13 CONDITIONS OF ANY PRETRIAL DIVERSION PROGRAM. SUCH INFORMATION
14 SHALL BE USED SOLELY FOR THE PURPOSE OF DETERMINING ELIGIBILITY
15 FOR SUCH PROGRAM.
16 (B) STATISTICAL REPORTS.--THE DISTRICT ATTORNEY IN EACH
17 COUNTY SHALL SUBMIT TO THE COURT ADMINISTRATOR OF THE
18 ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS AN ANNUAL
19 STATISTICAL REPORT ON THE CASES RECOMMENDED, PLACED AND
20 SUCCESSFULLY COMPLETED PRETRIAL DIVERSION PROGRAMS ACCORDING TO
21 THE OFFENSE FOR WHICH THE PERSON WAS CHARGED.
22 Section 2. This act shall take effect in 90 days.
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