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

 (C)  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.

 (D)  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.

 (E)  The issuing authority shall not question the defendant about the offense(s) charged but shall read the complaint to the defendant. The issuing authority shall also 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; and

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

 (F)  Unless the preliminary hearing is waived by a defendant who is represented by counsel, the issuing authority shall:

   (1)  fix a day and hour for a preliminary hearing which shall not be less than 3 nor more than 10 days after the preliminary arraignment, 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, and

     (b)   that failure to appear without good 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.

 (G)  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.

 (H)  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.

   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 arraignment.

   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 (C) 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.

   Paragraph (C) includes a narrow exception which 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.

   Nothing in this rule is intended to address public access to arrest warrant affidavits. See Commonwealth v. Fenstermaker, 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 (D), 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 (F)(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 good cause for the preliminary hearing, the defendant’s absence will 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.

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

   Official 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.

   Committee Explanatory Reports:

   Report explaining the provisions of the new Rule 140 published at 22 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. 5025 (September 11, 2004).

   The provisions of this Rule 540 amended May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended August 24, 2004, effective August 1, 2005, 34 Pa.B. 5016. Immediately preceding text appears at serial pages (303661) to (303662) and (289097).