HOUSE AMENDED

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY GREENLEAF, BAKER, TARTAGLIONE, FONTANA, COSTA, YUDICHAK, BOSCOLA, ALLOWAY, HUGHES AND FARNESE, MARCH 16, 2011

AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF REPRESENTATIVES, AS AMENDED, SEPTEMBER 25, 2012   

AN ACT

Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and

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Judicial Procedure) of the Pennsylvania Consolidated

Statutes, in minors, providing for the offense of

cyberbullying by minors; in criminal history record

information, further providing for expungement and for

juvenile records; and, in relation to summary offenses,

further providing for short title and purpose of chapter, for

the scope of the Juvenile Act, for inspection of court files

and records, for conduct of hearings and for right to

counsel.

Amending Titles 18 (Crimes and Offenses), 42 (Judiciary and

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Judicial Procedure) and 61 (Prisons and Parole), of the

Pennsylvania Consolidated Statutes, in authorized disposition

of offenders, further providing for sentence for murder,

murder of unborn child and murder of law enforcement officer;

and providing for sentence of persons under the age of 18 for

murder, murder of an unborn child and murder of a law

enforcement officer; in minors, providing for the offense of

cyberbullying by minors; in criminal history record

information, further providing for expungement and for

juvenile records; in relation to summary offenses, further

providing for short title and purpose of chapter, for

definitions, for the scope of the Juvenile Act, for

inspection of court files and records, for conduct of

hearings and for right to counsel; and, in Pennsylvania Board

of Probation and Parole, further providing for parole

procedure.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Title 18 of the Pennsylvania Consolidated

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Statutes is amended by adding a section to read:

Section 1.  Section 1102(a)(1) and (b) of Title 18 of the

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Pennsylvania Consolidated Statutes are amended to read:

§ 1102.  Sentence for murder, murder of unborn child and murder

of law enforcement officer.

(a)  First degree.--

(1)  [A] Except as provided under section 1102.1

(relating to sentence of persons under the age of 18 for

murder, murder of an unborn child and murder of a law

enforcement officer), a person who has been convicted of a

murder of the first degree or of murder of a law enforcement

officer of the first degree shall be sentenced to death or to

a term of life imprisonment in accordance with 42 Pa.C.S. §

9711 (relating to sentencing procedure for murder of the

first degree).

* * *

(b)  Second degree.--[A] Except as provided under section

1102.1, a person who has been convicted of murder of the second

degree, of second degree murder of an unborn child or of second

degree murder of a law enforcement officer shall be sentenced to

a term of life imprisonment.

* * *

Section 2.  Title 18 is amended by adding sections to read:

§ 1102.1.  Sentence of persons under the age of 18 for murder,

murder of an unborn child and murder of a law

enforcement officer.

(a)  First degree murder.--A person who has been convicted,

after June 24, 2012, of a murder of the first degree, first

degree murder of an unborn child or of murder of a law

enforcement officer of the first degree and who was under the

age of 18 at the time of the commission of the offense shall be

sentenced as follows:

(1)  A person who at the time of the commission of the

offense was 15 years of age or older shall be sentenced to a

term of life imprisonment without parole, or a term of

imprisonment, the minimum of which shall be at least 35 years

to life.

(2)  A person who at the time of the commission of the

offense was under 15 years of age shall be sentenced to a

term of life imprisonment without parole, or a term of

imprisonment, the minimum of which shall be at least 25 years

to life.

(b)  Notice.--Reasonable notice to the defendant of the

Commonwealth's intention to seek a sentence of life imprisonment

without parole under subsection (a) shall be provided after

conviction and before sentencing.

(c)  Second degree murder.--A person who has been convicted,

after June 24, 2012, of a murder of the second degree, second

degree murder of an unborn child or of murder of a law

enforcement officer of the second degree and who was under the

age of 18 at the time of the commission of the offense shall be

sentenced as follows:

(1)  A person who at the time of the commission of the

offense was 15 years of age or older shall be sentenced to a

term of imprisonment the minimum of which shall be at least

30 years to life.

(2)  A person who at the time of the commission of the

offense was under 15 years of age shall be sentenced to a

term of imprisonment the minimum of which shall be at least

20 years to life.

(d)  Findings.--In determining whether to impose a sentence

of life without parole under subsection (a), the court shall

consider and make findings on the record regarding the

following:

(1)  The impact of the offense on each victim, including

oral and written victim impact statements made or submitted

by family members of the victim detailing the physical,

psychological and economic effects of the crime on the victim

and the victim's family. A victim impact statement may

include comment on the sentence of the defendant.

(2)  The impact of the offense on the community.

(3)  The threat to the safety of the public or any

individual posed by the defendant.

(4)  The nature and circumstances of the offense

committed by the defendant.

(5)  The degree of the defendant's culpability.

(6)  Guidelines for sentencing and resentencing adopted

by the Pennsylvania Commission on Sentencing.

(7)  Age-related characteristics of the defendant,

including:

(i)  Age.

(ii)  Mental capacity.

(iii)  Maturity.

(iv)  The degree of criminal sophistication exhibited

by the defendant.

(v)  The nature and extent of any prior delinquent or

criminal history, including the success or failure of any

previous attempts by the court to rehabilitate the

defendant.

(vi)  Probation or institutional reports.

(vii)  Other relevant factors.

(e)  Minimum sentence.--Nothing under this section shall

prevent the sentencing court from imposing a minimum sentence

greater than that provided in this section. Sentencing

guidelines promulgated by the Pennsylvania Commission on

Sentencing may not supersede the mandatory minimum sentences

provided under this section.

(f)  Appeal by Commonwealth.--If a sentencing court refuses

to apply this section where applicable, the Commonwealth shall

have the right to appellate review of the action of the

sentencing court. The appellate court shall vacate the sentence

and remand the case to the sentencing court for imposition of a

sentence in accordance with this section if it finds that the

sentence was imposed in violation of this section.

§ 6321.  Cyberbullying by minors.

(a)  Offense defined.--A minor commits a misdemeanor of the

third degree if:

(1)  the minor knowingly transmits or disseminates any

electronic  communication, including a visual depiction of

himself or any other person in a state of nudity, to another

minor with the knowledge or intent that the communication 

would coerce, intimidate, torment, harass or otherwise cause

emotional distress to the other minor; or

(2)  the minor does any of the following involving

another minor:

(i)  photographs, videotapes, depicts on a computer

or films the other minor in a state of nudity without the

person's knowledge or consent; or

(ii)  transmits, distributes, publishes or

disseminates a visual depiction of the other minor in a

state of nudity where the minor depicted has not given

consent or has withdrawn consent for the dissemination.

(b)  Seizure and forfeiture of electronic communication 

device.--An electronic communication device used in violation of

this section may be seized by and forfeited to the Commonwealth.

(c)  Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection:

"Disseminate."  To cause or make an electronic communication

from one person, place or electronic communication device to two

or more persons, places or electronic communication devices.

"Electronic communication."  As defined in section 5702

(relating to definitions).

"Minor."  An individual under 18 years of age.

"Nudity."  The showing of the human male or female genitals,

pubic area or buttocks with less than a fully opaque covering,

the showing of the female breast with less than a fully opaque

covering of any portion thereof below the top of the nipple or

the depiction of covered male genitals in a discernibly turgid

state.

"Transmit."  To cause or make an electronic communication

from one person, place or electronic communication device to

only one other person, place or electronic communication device.

"Visual depiction."  A photograph, videotape, film or

depiction on a computer. The term shall not include a

photograph, videotape, film or depiction on a computer, taken,

taped, filmed, made, produced, used or intended to be used, for

or in furtherance of a commercial purpose or to the transmission

or dissemination of such a visual depiction.

Section 2. Sections 9122(a)(3) and (d) and 9123(a) of Title

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18 are amended to read:

Section 3.  Section 9122(a)(3) and (d) of Title 18 are

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amended to read:

§ 9122.  Expungement.

(a)  Specific proceedings.--Criminal history record

information shall be expunged in a specific criminal proceeding

when:

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(3)  a person 21 years of age or older who has been

convicted of a violation of section 6308 (relating to

purchase, consumption, possession or transportation of liquor

or malt or brewed beverages), which occurred on or after the

day the person attained 18 years of age, petitions the court

of common pleas in the county where the conviction occurred

seeking expungement and the person has satisfied all terms

and conditions of the sentence imposed for the violation,

including any suspension of operating privileges imposed

pursuant to section 6310.4 (relating to restriction of

operating privileges). Upon review of the petition, the court

shall order the expungement of all criminal history record

information and all administrative records of the Department

of Transportation relating to said conviction.

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(d)  Notice of expungement.--Notice of expungement shall

promptly be submitted to the central [respository] repository 

which shall notify all criminal justice agencies which have

received the criminal history record information to be expunged.

* * *

Section 4.  Section 9123(a) of Title 18, amended July 5, 2012

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(P.L.880, No.91), is amended to read:

§ 9123.  Juvenile records.

(a)  Expungement of juvenile records.--Notwithstanding the

provisions of section 9105 (relating to other criminal justice

information) and except upon cause shown as provided under

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subsection (a.1), expungement of records of juvenile delinquency

cases and cases involving summary offenses committed while the

individual was under 18 years of age, wherever kept or retained

shall occur after 30 days' notice to the district attorney,

whenever the court upon its own motion or upon the motion of a

child or the parents or guardian finds:

(1)  a complaint is filed which is not substantiated or

the petition which is filed as a result of a complaint is

dismissed by the court;

(1.1)  a written allegation is filed which was not

approved for prosecution;

(1.2)  the individual successfully completed an informal

adjustment and no proceeding seeking adjudication or

conviction is pending;

(2)  six months have elapsed since the final discharge of

the person from supervision under a consent decree or

diversion program, including a program under 42 Pa.C.S. §

1520 (relating to adjudication alternative program) and no

proceeding seeking adjudication or conviction is pending;

(2.1)  the individual is 18 years of age or older and the

individual has satisfied all terms and conditions of the

sentence imposed following a conviction for a summary

offense, with the exception of a violation of section 6308

(relating to purchase, consumption, possession or

transportation of liquor or malt or brewed beverages),

committed while the individual was under 18 years of age and

the individual has not been convicted of a felony,

misdemeanor or adjudicated delinquent and no proceeding is

pending to seek such conviction and adjudication;

(2.2)  the individual is 18 years of age or older and has

been convicted of a violation of section 6308 which occurred

while the individual was under 18 years of age and the

individual has satisfied all terms and conditions of the

sentence imposed for the violation, including any suspension

of operating privileges imposed under section 6310.4

(relating to restriction of operating privileges).

Expungement shall include all criminal history record

information and all administrative records of the Department

of Transportation relating to the conviction;

(3)  five years have elapsed since the final discharge of

the person from commitment, placement, probation or any other

disposition and referral and since such final discharge, the

person has not been convicted of a felony, misdemeanor or

adjudicated delinquent and no proceeding is pending seeking

such conviction or adjudication; or

(4)  [the individual is 18 years of age or older,] the

attorney for the Commonwealth consents to the expungement and

a court orders the expungement after giving consideration to

the following factors:

(i)  the type of offense;

(ii)  the individual's age, history of employment,

criminal activity and drug or alcohol problems;

(iii)  adverse consequences that the individual may

suffer if the records are not expunged; and

(iv)  whether retention of the record is required for

purposes of protection of the public safety.

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Section 3 5.  Section 6301(b) of Title 42 is amended to read:

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§ 6301.  Short title and purposes of chapter.

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(b)  Purposes.--This chapter shall be interpreted and

construed as to effectuate the following purposes:

(1)  To preserve the unity of the family whenever

possible or to provide another alternative permanent family

when the unity of the family cannot be maintained.

(1.1)  To provide for the care, protection, safety and

wholesome mental and physical development of children coming

within the provisions of this chapter.

(2)  Consistent with the protection of the public

interest, to provide for children committing delinquent acts

programs of supervision, care and rehabilitation which

provide balanced attention to the protection of the

community, the imposition of accountability for offenses

committed and the development of competencies to enable

children to become responsible and productive members of the

community.

(3)  To achieve the foregoing purposes in a family

environment whenever possible, separating the child from

parents only when necessary for his welfare, safety or health

or in the interests of public safety.

(4)  To provide means through which the provisions of

this chapter are executed and enforced and in which the

parties are assured a fair hearing and their constitutional

and other legal rights recognized and enforced.

(5)  To use the least restrictive sanctions consistent

with the protection of the community and the rehabilitation 

needs of a delinquent child; and to use confinement as a last

resort and to impose it for the minimum amount of time that

is consistent with the protection of the public and the

rehabilitation needs of a delinquent child.

(6)  To employ whenever possible evidence-based

practices, with fidelity, at every stage of the juvenile

justice process.

Section 6.  Paragraph (7) of the definition of "dependent

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child" in section 6302 of Title 42 is amended to read:

§ 6302.  Definitions.

The following words and phrases when used in this chapter

shall have, unless the context clearly indicates otherwise, the

meanings given to them in this section:

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"Dependent child."  A child who:

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(7)  [is under the age of ten years and] has committed a

delinquent act or crime, other than a summary offense, while

under the age of ten years;

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Section 4 7.  Sections 6303, 6307 and 6336 of Title 42 are

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amended by adding subsections to read:

§ 6303.  Scope of chapter.

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(c)  Summary offenses generally.--In addition to the

provisions of subsection (a)(5) and notwithstanding the

exclusion of summary offenses generally from the definition of

"delinquent act" under section 6302, the provisions of sections

6307 (relating to inspection of court files and records) and

6336(d) (relating to conduct of hearings), insofar as section

6336(d) relates to the exclusion of the general public from the

proceedings, shall apply to proceedings involving a child

charged with a summary offense when the proceedings are before a

judge of the minor judiciary.

§ 6307.  Inspection of court files and records.

* * *

(c)  Summary offenses.--The provisions of this section shall

apply to proceedings involving a child charged with a summary

offense when the proceedings are before a judge of the minor

judiciary.

§ 6336.  Conduct of hearings.

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(g)  Summary offenses.--The provisions of subsection (d),

insofar as it relates to the exclusion of the general public

from the proceedings, shall apply to proceedings involving a

child charged with a summary offense when the proceedings are

before a judge of the minor judiciary.

(h)  Adjudication alternative.--The magisterial district

judge may refer a child charged with a summary offense to an

adjudication alternative program under section 1520 (relating to

adjudication alternative program) and the Pennsylvania Rules of

Criminal Procedure.

Section 5 8.  Section 6337 of Title 42, amended April 9, 2012

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(P.L.223, No.23), is amended to read:

§ 6337.  Right to counsel.

(a)  Court to provide counsel.--

(1)  Except as provided in section 6311 (relating to

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guardian ad litem for child in court proceedings), a party is

entitled to representation by legal counsel at all stages of

any proceedings under this chapter and if he is without

financial resources or otherwise unable to employ counsel, to

have the court provide counsel for him.

(2)  If a party appears without counsel the court shall

ascertain whether he knows of his right thereto and to be

provided with counsel by the court if applicable. The court

may continue the proceeding to enable a party to obtain

counsel. [Counsel must be provided for a child unless his

parent, guardian, or custodian is present in court and

affirmatively waive it. However, the parent, guardian, or

custodian may not waive counsel for a child when their

interest may be in conflict with the interest or interests of

the child.]

(3)  If the interests of two or more parties may

conflict, separate counsel shall be provided for each of

them.

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(1)  Except as provided under this section and in section 

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6311 (relating to guardian ad litem for child in court

proceedings), a party is entitled to representation by legal

counsel at all stages of any proceedings under this chapter

and if he is without financial resources or otherwise unable

to employ counsel, to have the court provide counsel for him.

(2)  If a party other than a child appears at a hearing 

without counsel the court shall ascertain whether he knows of

his right thereto and to be provided with counsel by the

court if applicable. The court may continue the proceeding to

enable a party to obtain counsel. [Except as provided under

section 6337.1 (relating to right to counsel for children in

dependency and delinquency proceedings), counsel must be

provided for a child.]

(3)  If the interests of two or more parties may

conflict, separate counsel shall be provided for each of

them.

(b)  Delinquency cases.--

(1)  In delinquency cases, all children are presumed

indigent. The presumption may be rebutted if the court

ascertains that the child has the financial resources to

retain counsel of his choice at his own expense.

(2)  The court shall not consider the financial resources

of the child's parent, guardian or custodian when

ascertaining whether the child has the financial resources to

retain counsel of his choice at his own expense.

Section 9.  Section 6139(a) of Title 61 is amended by adding

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a paragraph to read:

 § 6139.  Parole procedure.

(a)  Specific requirements.--

* * *

(3.1)  Notwithstanding paragraphs (2) and (3), the board

shall not be required to consider nor dispose of an

application by an inmate or an inmate's attorney in the case

of an inmate sentenced under 18 Pa.C.S. § 1102.1 (relating to

sentence of persons under the age of 18 for murder, murder of

an unborn child and murder of a law enforcement officer) if a

parole decision has been issued by the board within five

years of the date of the current application.

* * *

Section 6 10.  This act shall take effect as follows:

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(1)  The addition of 42 Pa.C.S. §§ 6303(c), 6307(c) and

6336(g) and (h) shall take effect in 90 days.

(2)  The amendment of 42 Pa.C.S. § 6337 shall take effect

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immediately.

(3)  This section shall take effect immediately.

(2)  The following provisions shall take effect

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immediately:

(i)  The amendment of 18 Pa.C.S. § 1102(a)(1) and

(b).

(ii)  The addition of 18 Pa.C.S. § 1102.1.

(iii)  The amendment of paragraph (7) of the

definition of "dependent child" in 42 Pa.C.S. § 6302.

(iv)  The amendment of 42 Pa.C.S. § 6337.

(v)  The addition of 61 Pa.C.S. § 6139(a)(3.1). 

(vi)  This section.

(4) (3)  The remainder of this act shall take effect in

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60 days.