THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
[234 PA. CODE CH. 1500]
Suspension of the Capital Unitary Review Act and Related Sections of Act No. 1995-32 (SSI); and Amendment of Chapter 1500; No. 224; Doc. No. 2
[27 Pa.B. 4298] The Criminal Procedural Rules Committee has prepared a Final Report explaining the August 11, 1997 amendments of Chapter 1500 (Post-Conviction Collateral Proceedings) of the Rules of Criminal Procedure. The Final Report follows the Court's Order.
Order Per Curiam:
And Now, this 11th day of August, 1997, pursuant to this Court's Authority under Article V, Section 10 of the Constitution of Pennsylvania, it is hereby Ordered:
(1) that the following provisions of the Act of November 17, 1995, P. L. 1118, No. 32 (SSI) and of the Act of June 25, 1997, P. L. , No. 33, are suspended permanently:
a. Sections 9570, 9571, 9572, 9573, 9574, 9575, 9576, 9577, 9578, 9579 (collectively known as the Capital Unitary Review Act) (''CURA'');
b. Sections 9543(a)(4) and 9544(b) only insofar as they reference ''unitary review'';
c. Section 9545(c)(3);
d. Section 9545(d)(2);
e. the 1995 and 1997 amendments to Section 9546(d);
(2) upon the recommendation of the Criminal Procedural Rules Committee, the proposal having been published before adoption at 27 Pa.B. 2296 (May 18, 1996), and in the Pennsylvania Reporter (Atlantic Second Series Advance Sheets, Vol. 674), with a Final Report to be published with this Order, that Chapter 1500 is hereby amended in the following form;
(3) that this Order shall apply retroactively to all cases in which the death penalty was imposed on or after January 1, 1996. Appointments of counsel made pursuant to CURA shall remain in effect for purposes of challenges under the Post Conviction Relief Act (as amended in 1995 and by this Order), and under Chapter 1500 (as amended by this Order).
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective immediately.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 1500. POST-CONVICTION COLLATERAL PROCEEDINGS (Editor's Note: Rule 1500 is a new rule. It is printed in regular type to enhance readability.)
Rule 1500. Scope.
The rules in Chapter 1500 apply to capital and noncapital cases under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541--9546, as amended by Act 1995-32 (SS1).
Official Note: Adopted August 11, 1997, effective immediately.
Comment The 1995 amendments to the Post Conviction Relief Act specifically provide that, ''except as specifically provided otherwise, all provisions of this subchapter shall apply to capital and noncapital cases.'' See 42 Pa.C.S. § 9542.
Committee Explanatory Reports:
Final Report explaining the August 11, 1997 adoption of Rule 1500 published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
Rule 1501. Initiation of Post-Conviction Collateral Proceedings.
(1) A petition for post-conviction collateral relief shall be filed within one year of the date the judgment becomes final, except as otherwise provided by statute.
(2) A proceeding for post-conviction collateral relief shall be initiated by filing a [motion] petition and 3 copies with the clerk of the court in which the defendant was convicted and sentenced. The [motion] petition shall be verified by the defendant.
Official Note: Previous Rule 1501 adopted January 24, 1968, effective August 1, 1968; amended November 25, 1968, effective February 3, 1969; amended February 15, 1974, effective immediately; rescinded December 11, 1981, effective June 27, 1982, rescission vacated June 4, 1982; rescinded November 9, 1984, effective January 2, 1985. Former Rule 1501 adopted November 9, 1984, effective January 2, 1985; rescinded February 1, 1989, effective July 1, 1989[;], and replaced by present Rule 1502. Present Rule 1501 adopted February 1, 1989, effective July 1, 1989; amended March 22, 1993, effective January 1, 1994; amended August 11, 1997, effective immediately.
Comment The rules in Chapter 1500 govern proceedings to obtain relief authorized by the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 et seq. (hereinafter PCRA).
By statute, a court may not entertain a request for any form of relief in anticipation of the filing of a petition for post-conviction collateral relief. 42 Pa.C.S. § 9545(a). For stays of execution, see 42 Pa.C.S. § 9545(c).
The [motion] petition for post-conviction relief under these rules is not intended to be a substitute for or a limitation on the availability of appeal or a post-sentence motion. See Pa.Rs.Crim.P. [320 and] 1410 and 360. Rather, the Chapter 1500 Rules are intended to require that, in a single proceeding, the defendant must raise and the judge must dispose of all grounds for relief available after conviction and exhaustion of the appellate process, either by affirmance or by the failure to take a timely appeal.
Except as provided in Rule 1502(e)(2) for death penalty cases, no discovery is permitted at any stage of the proceedings, except upon leave of the court with a showing of exceptional circumstances. See Rule 1502(e)(1), which implements 42 Pa.C.S. § 9545(d)(2).
As used in the Chapter 1500 Rules, ''[motion] petition for post-conviction collateral relief'' and [motion] petition'' are intended to include an amended [motion] petition filed pursuant to Rule 1505, except where the context indicates otherwise.
Under the 1995 amendments to the PCRA, a petition for post-conviction relief, including second and subsequent petitions, must be filed ''within one year of the date the judgment becomes final,'' 42 Pa.C.S. § 9545(b)(1), unless one of the statutory exceptions applies, see 42 Pa.C.S. § 9545(b)(1)(i)--(iii). Any petition invoking one of these exceptions must be filed within 60 days of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).
The 1995 amendments to the PCRA apply to petitions filed on or after January 16, 1996. A petitioner whose judgment has become final on or before the effective date of the Act is deemed to have filed a timely petition under the Act if the first petition is filed within one year of the effective date of the Act. See Section 3 of Act 1995-32 (SS1).
For the purposes of the PCRA, a judgment becomes final at the conclusion of direct review, which includes discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review. See 42 Pa.C.S. 9545(b)(3).
Committee Explanatory Reports:
Final Report explaining the March 22, 1993 amendments published with the Court's Order at 23 Pa.B. 1699 (April 10, 1993).
Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
Rule 1502. Content of [Motion] Petition for Post-Conviction Collateral Relief; Request for Discovery.
(a) A [motion] petition for post-conviction collateral relief shall bear the caption, number, and court term of the case or cases in which relief is requested and shall contain substantially the following information:
* * * * * (8) the court, caption, term, and number of any proceeding (including appeals, prior post-conviction collateral proceedings, and federal court proceedings) instituted by the defendant to obtain relief from conviction or [by] sentence, specifying whether a proceeding is pending or has been completed;
* * * * * (13) whether any of the grounds for the relief requested were raised before, and if so, at what stage of the case; [and]
(14) a verification by the defendant that the facts set forth in the [motion] petition are true and correct to the best of the defendant's personal knowledge or information and belief and that any false statements therein are made subject to the penalties [of Section 4904] of the Crimes Code, [(] 18 Pa.C.S. § 4904, [),] relating to unsworn falsification to authorities[.];
(15) if applicable, any request for an evidentiary hearing. The request for an evidentiary hearing shall include a signed certification as to each intended witness, stating the witness's name, address, and date of birth, and the substance of the witness's testimony. Any documents material to the witness's testimony shall also be included in the petition; and
(16) if applicable, any request for discovery.
The [motion] petition may, but need not, include concise argument or citation and discussion of authorities.
(b) Each ground relied upon in support of the relief requested shall be stated in the [motion] petition. Failure to state such ground in the [motion] petition shall preclude the defendant from raising that ground in any [subsequent] proceeding for post-conviction collateral relief [under these rules].
(c) The defendant shall state in the [motion] petition the name and address of the attorney who will represent the defendant in the post-conviction collateral proceeding. If the defendant is unable to afford or otherwise procure counsel, and wants counsel appointed, the defendant shall so state in the [motion] petition and shall request the appointment of counsel.
(d) The defendant shall attach to the [motion] petition any affidavits, records, documents, or other evidence which show the facts stated in support of the grounds for relief, or the [motion] petition shall state why they are not attached.
(e) Requests for Discovery
(1) Except as provided in paragraph (e)(2), no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of exceptional circumstances.
(2) On the first counseled petition in a death penalty case, no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of good cause.
Official Note: Previous Rule 1502 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by present Rules 1503 and 1505. Present Rule 1502 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately.
Comment [This rule is derived from former Rule 1501.]
Pursuant to paragraph (a)(6), the [motion] petition should include specific information about the sentence imposed, including whether the defendant is currently serving a sentence of imprisonment or probation for the crime; awaiting execution of a sentence of death for the crime; or serving a sentence which must expire before the defendant may commence serving the disputed sentence; the minimum and maximum terms of the sentence[,]; the amount of fine or restitution, if any[,]; and whether the defendant is released on [probation or] parole. See [also, Section 9543(a) of the Post Conviction Relief Act,] 42 Pa.C.S. § 9543(a) [(Supp. 1988)].
[Section] Sections 9543(a)(2), (3), and (4) of the Post Conviction Relief Act, [(]42 Pa.C.S. § 9543(a)(2), (3), and (4), [(Supp. 1988))] [requires] require that to be eligible for relief, the defendant must plead and prove by a preponderance of the evidence all of the following:
[1. ''That the conviction or sentence resulted from one or more of the following:
(I) A violation of the constitution of Pennsylvania or laws of this Commonwealth or the constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(II) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(III) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty.
(IV) The improper obstruction by Commonwealth officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(V) A violation of the provisions of the constitution, law or treaties of the United States which would require the granting of federal habeas corpus relief to a state prisoner.
(VI) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced.
(VII) The imposition of a sentence greater than the lawful maximum.
(VIII) A proceeding in a tribunal without jurisdiction.''
2. ''That the allegation of error has not been previously litigated and one of the following applies:
(I) The allegation of error has not been waived.
(II) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.''
''(III) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a state procedural default barring federal habeas corpus relief.''
3. ''That the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational strategic or tactical decision by counsel.'']
''(2) That the conviction or sentence resulted from one or more of the following:
(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.
(iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.''
[(v)] Deleted by statute.
''(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.''
''(3) That the allegation of error has not been previously litigated or waived.''
''(4) That the failure to litigate the issue prior to or during trial . . . , or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.'' 42 Pa.C.S. § 9543(a)(2), (3) and (4). (Note: the statutory reference to unitary review in this paragraph is not shown in view of the Court's 1997 suspension of the Capital Unitary Review Act.)
By statute, a court may not entertain a request for any form of relief in anticipation of the filing of a petition for post-conviction relief. 42 Pa.C.S. § 9545(a). For stays of execution, see 42 Pa.C.S. § 9545(c).
Paragraphs (a)(16) and (e) were added in 1997 to address requests for discovery. Paragraph (a)(16) requires that a request for discovery be included in the petition, if applicable. Paragraph (e) sets forth the standards for permitting discovery. Under paragraph (e)(1), which applies in all cases except on the first counseled petition in a death penalty case, no discovery is permitted at any stage of the proceedings, except upon leave of the court with showing of exceptional circumstances. See 42 Pa.C.S. § 9545(d)(2). Under paragraph (e)(2), which applies to first counseled petitions in death penalty cases, discovery is permitted only upon leave of court for good cause shown. For purposes of paragraph (e)(2), ''first counseled petition'' includes petitions on which defendants have elected to proceed pro se.
Second or subsequent petitions will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. Commonwealth v. Szuchon, 633 A.2d 1098, 1099 (Pa. 1993) (citing Commonwealth v. Lawson, 549 A.2d 107 (Pa. 1988)). This standard is met if the petitioner can demonstrate either: (1) that the proceedings resulting in the petitioner's conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate; or (2) that the petitioner is innocent of the crimes charged. Commonwealth v. Szuchon, 633 A.2d 1098, 1100 (Pa. 1993).
It is expected that a form [motion] petition will be prepared incorporating the required contents set forth herein which will be available for distribution to uncounseled defendants. This rule is not intended to require an attorney to use a printed form or any other particular format in preparing a [motion] petition or an amended [motion] petition for post-conviction collateral relief, provided, of course, that the attorney must include in a [motion] petition or amended [motion] petition substantially all of the information set forth in this rule.
The [motion] petition should be typewritten or legibly handwritten.
Committee Explanatory Reports:
Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
Rule 1503. Docketing and Assignment.
(a) Upon receipt of a [motion] petition for post-conviction collateral relief, the clerk of courts shall immediately docket the [motion] petition to the same term and number as the underlying conviction and sentence. The clerk shall thereafter transmit the [motion] petition and the record to the trial judge, if available, or to the administrative judge, if the trial judge is not available. If the defendant's confinement is by virtue of multiple indictments or informations and sentences, the case shall be docketed to the same term and number as the indictment or information upon which the first unexpired term was imposed, but the court may take judicial notice of all proceedings related to the multiple indictments or informations.
(b) When the [motion] petition is filed and docketed, the clerk shall transmit a copy of the [motion] petition to the attorney for the Commonwealth.
(c) The trial judge, if available, shall proceed with and dispose of the [motion] petition in accordance with these rules, unless the judge determines, in the interests of justice, that he or she should be disqualified.
(d) When the trial judge is unavailable or disqualified, the administrative judge shall promptly assign and transmit the [motion] petition and the record to another judge, who shall proceed with and dispose of the [motion] petition in accordance with these rules.
Official Note: Previous Rule 1503 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by present Rule 1504. Present Rule 1503 adopted February 1, 1989, effective July 1, 1989; amended June 19, 1996, effective July 1, 1996; amended August 11, 1997, effective immediately.
Comment As used in this rule, ''trial judge'' is intended to include the judge who accepted a pleas guilty or nolo contendere.
The transmittal of the [motion] petition to the attorney for the Commonwealth does not require a response unless one is ordered by the judge as provided in these rules, or required by Rule 1506(e).
Although most references to indictments and indicting grand juries were deleted from these rules in 1993 since the indicting grand jury had been abolished in all counties, see PA. CONST. art. I, § 10 and 42 Pa.C.S. § 8931(b), the reference was retained in this rule because there may be some cases still pending that were instituted prior to the abolition of the indicting grand jury.
Committee Explanatory Reports:
Final Report explaining the June 19, 1996 amendments published with the Court's Order at 26 Pa.B. 3128 (July 6, 1996).
Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
Rule 1504. Appointment of Counsel; in Forma Pauperis.
(a) When an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant's first [motion] petition for post-conviction collateral relief.
(b) On a second or subsequent [motion] petition, when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, and an evidentiary hearing is required as provided in Rule 1508, the judge shall appoint counsel to represent the defendant.
* * * * * (d) An appointment of counsel shall be effective throughout the post-conviction proceedings, including any appeal from disposition of the [motion] petition for post-conviction collateral relief.
* * * * * Official Note: Previous Rule 1504 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by Rule 1507. Present Rule 1504 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately.
Comment [This rule replaces former Rule 1503.]
If a defendant seeks to proceed without an attorney, the court may appoint standby counsel. See Rule 318.
Consistent with Pennsylvania post-conviction practice under former Rules 1503 and 1504, it is intended that counsel be appointed in every case in which a defendant has filed a [motion] petition for post-conviction collateral relief for the first time and is unable to afford counsel or otherwise procure counsel. However, the rule now limits appointment of counsel on second or subsequent [motions] petitions so that counsel should be appointed only if the judge determines that an evidentiary hearing is required. Of course, the judge has the discretion to appoint counsel in any case when the interests of justice require it.
Committee Explanatory Reports:
Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
Rule 1505. Amendment and Withdrawal of [Motion] Petition for Post-Conviction Collateral Relief.
(a) The judge may grant leave to amend or withdraw a [motion] petition for post-conviction collateral relief at any time. Amendment shall be freely allowed to achieve substantial justice.
(b) When a [motion] petition for post-conviction collateral relief is defective as originally filed, the judge shall order amendment of the [motion] petition, indicate the nature of the defects, and specify the time within which an amended [motion] petition shall be filed. If the order directing amendment is not complied with, the [motion] petition may be dismissed without a hearing.
(c) Upon the entry of an order directing an amendment, the clerk of courts shall service a copy of the order on the defendant, the defendant's attorney, and the attorney for the Commonwealth.
(d) All amended [motions] petitions shall be in writing, shall comply substantially with Rule 1502, and shall be filed and served within the time specified by the judge in ordering the amendment.
Official Note: Previous Rule 1505 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by Rules 1506(b), 1508(a), and present Rule 1505(c). Present Rule 1505 adopted February 1, 1989, effective July 1, 1989[.]; amended August 11, 1997, effective immediately.
Comment [This rule replaces paragraph (a) of former Rule 1505 and paragraph (c) of former Rule 1502.]
''Defective,'' as used in paragraph (b), is intended to include [motions] petitions that are inadequate, insufficient, or irregular for any reason; for example, [motions] petitions that lack particularity; [motions] petitions that do not comply substantially with Rule 1502; [motions] petitions that appear to be patently frivolous; [motions] petitions that do not allege facts which would support relief; [motions] petitions that raise issues the defendant did not preserve properly or where finally determined at prior proceedings.
When an amended [motion] petition is filed pursuant to paragraph (d), it is intended that the clerk of courts transmit a copy of the amended [motion] petition to the attorney for the Commonwealth. This transmittal does not require a response unless one is ordered by the judge as provided in these rules. See Rules 1503 and 1506.
Committee Explanatory Reports:
Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
Rule 1506. Answer to Petition [Motion] for Post-Conviction Collateral Relief.
(a) Except as provided in paragraph (e), [An] an answer to a [motion] petition for post-conviction collateral relief is not required unless ordered by the judge. When the judge has not ordered an answer, the attorney for the Commonwealth may elect to answer, but the failure to file one shall not constitute an admission of the well-pleaded facts alleged in the [motion] petition.
(b) Upon the entry of an order directing an answer, the clerk of [court] courts shall serve a copy of the order on the attorney for the Commonwealth, the defendant, and the defendant's attorney.
* * * * * (e) Answers in Death Penalty Cases
(1) First Counseled Petitions
(i) The Commonwealth shall file an answer to the first counseled petition for collateral review in a death penalty case.
(ii) The answer shall be filed within 120 days of the filing and service of the petition. For good cause shown, the court may order extensions, of up to 90 days each, of the time for filing the answer.
(2) Second and Subsequent Petitions
(i) An answer to a second or subsequent petition for post-conviction collateral relief is not required unless ordered by the judge. When the judge has not ordered an answer, the attorney for the Commonwealth may elect to file an answer.
(ii) The answer shall be filed within 120 days of the filing and service of the petition. For good cause shown, the court may order extensions, of up to 90 days each, of the time for filing the answer.
(3) Amendments to Answer
The judge may grant the Commonwealth leave to amend the answer at any time, and amendment shall be freely allowed to achieve substantial justice. Amended answers shall be in writing, and shall be filed and served within the time specified by the judge in granting leave to amend.
Official Note: Previous Rule 1506 adopted January 24, 1968, effective August 1, 1968; Comment revised April 26, 1979, effective July 1, 1979; rule rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; Comment revised January 28, 1983, effective July 1, 1983; rule rescinded February 1, 1989, effective July 1, 1989, and replaced by Rule 1508. Present Rule 1506 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately.
Comment As used in the Chapter 1500 Rules, ''answer'' is intended to include an amended answer filed pursuant to [paragraph] paragraphs (d) and (e)(3) of this rule, except where the context indicates otherwise.
Except as provided in paragraph (e), [When] when determining whether to order that the attorney for the Commonwealth file an answer, the judge should consider whether an answer will promote the fair and prompt disposition of the issues raised by the defendant in the [motion] petition for post-conviction collateral relief.
Paragraph (e)(1) was added in 1997 to require that the Commonwealth file an answer to the first counseled petition in a death penalty case. For second and subsequent petitions, paragraph (e)(2) would apply.
''First counseled petition,'' as used in paragraph (e)(1), includes petitions on which defendants have elected to proceed pro se. See also the Comment to Rule 1503.
[See Section 9543(B) of the Post Conviction Relief Act (42 Pa.C.S. § 9543(B) (Supp. 1988)) which, inter alia, authorizes the dismissal of the motion if ''because of delay in filing . . . , the Commonwealth has been prejudiced either in its ability to respond to the petition or in its ability to re-try the petitioner.'']
Committee Explanatory Reports:
Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
Rule 1507. Disposition Without Hearing.
Except as provided in Rule 1509 for death penalty cases.
(a) [The] the judge shall promptly review the [motion] petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant's claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the [motion] petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within [10] 20 days of the date of the notice. The judge thereafter shall [either] order the [motion] petition dismissed, [or] grant leave to file an amended [motion] petition, or direct that the proceedings continue.
(b) A [motion] petition for post-conviction collateral relief may be granted without a hearing when the [motion] petition and answer show that there is no genuine issue concerning any material fact and that the defendant is entitled to relief as a matter of law.
(c) The judge may dispose of only part of a [motion] petition without a hearing by ordering dismissal of or granting relief on only some of the issues raised, while ordering a hearing on other issues.
(d) When the [motion] petition is dismissed without a hearing, the judge [:] shall issue an order to that effect and shall advise the defendant by certified mail, return receipt requested, of the right to appeal from the final order disposing of the petition and of the time within which the appeal must be taken.
[(1) shall issue an order to that effect and shall state in the order the grounds on which the case was determined; and
(2) shall advise the defendant by certified mail, return receipt requested, of the right to appeal from the final order disposing of the motion and of the time within which the appeal must be taken.]
Official Note: Previous Rule 1507 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; amended January 28, 1983, effective July 1, 1983; rescinded February 1, 1989, effective July 1, 1989, and not replaced. Present Rule 1507 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately.
Comment [Previous Rule 1507 was rescinded in 1989 as unnecessary in view of the enactment of the new Post Conviction Relief Act, Act 47 of 1988, 42 Pa.C.S. § 9541 et seq. (Supp. 1988). Present Rule 1507 replaces former Rule 1504.]
The judge is permitted, pursuant to paragraph (a), to summarily dismiss a [motion] petition for post-conviction collateral relief in certain limited cases. To determine whether a summary dismissal is appropriate, the judge should thoroughly review the [motion] petition, the answer, if any, and all other relevant information that is included in the record. If, after this review, the judge determines that the [motion] petition is patently frivolous and without support in the record, or that the facts alleged would not, even if proven, entitle the defendant to relief, or that there are no genuine issues of fact, the judge may dismiss the [motion] petition as provided herein.
A summary dismissal would also be authorized under this rule if the judge determines that a previous [motion] petition involving the same issue or issues was filed and was finally determined adversely to the defendant. See § 9545(b) for the timing requirements for filing second and subsequent petitions.
[A second or subsequent motion should be summarily dismissed when the judge determines that the defendant has failed to make a strong prima facie showing that a miscarriage of justice may have occurred. See Commonwealth v. Lawson, ____ Pa. ____ , 549 A.2d 107 (1988).]
Second or subsequent petitions will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. Commonwealth v. Szuchon, 633 A.2d 1098, 1099 (Pa. 1993) (citing Commonwealth v. Lawson, 549 A.2d 107 (Pa. 1988)). This standard is met if the petitioner can demonstrate either: (1) that the proceedings resulting in the petitioner's conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate; or (2) that the petitioner is innocent of the crimes charged. Commonwealth v. Szuchon, 633 A.2d 1098, 1100 (Pa. 1993).
[See also Rule 1504 with regard to] For the requirements for appointment of counsel on second and subsequent petitions, [in these cases] see Rule 1504(b).
Relief may be granted without a hearing under paragraph (b) only after an answer has been filed either voluntarily or pursuant to court order.
[Upon disposition without a hearing under this rule, the judge should also comply with Rule 1508(d), to the extent that it reasonably applies.]
A PCRA petition may not be dismissed due to delay in filing except after a hearing on a motion to dismiss. 42 Pa.C.S. § 9543(b). See Rule 1508.
Committee Explanatory Reports:
Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
Rule 1508. Hearing.
(a) Except as provided in Rule 1507, the judge shall order a hearing:
(1) whenever the Commonwealth files a motion to dismiss due to the defendant's delay in filing the petition, or
(2) when the petition for post-conviction relief or the Commonwealth's answer, if any, raises material issues of fact. [on all material issues of fact raised by the motion and answer, if any. The] However, the judge may deny a hearing on a specific issue of fact when a full and fair evidentiary hearing upon that issue was held at trial or at any proceeding before or after trial.
The judge shall schedule the hearing for a time that will afford the parties a reasonable opportunity for investigation and preparation, and shall enter such interim orders as may be necessary in the interests of justice.
(b) The judge, or [motion] petition or request, shall postpone or continue a hearing to provide either party a reasonable opportunity, if one did not exist previously, for investigation and preparation regarding any new issue of fact raised in an amended [motion] petition or amended answer.
* * * * * (d) Upon the conclusion of the hearing the judge shall:
(1) determine all material issues raised by the defendant's [motion] petition and the Commonwealth's answer, or by the Commonwealth's motion to dismiss, if any;
(2) issue an order denying relief or granting a specific form of relief [and stating the grounds on which the case was determined,] and issue any supplementary orders appropriate to the proper disposition of the case[; and].
[(3) state on the record, or issue and serve upon the parties, findings of fact and conclusions of law on all material issues.]
(e) If the judge disposes of the case in open court at the conclusion of the hearing, the judge shall advise the defendant on the record of the right to appeal from the final order disposing of the [motion] petition and of the time within which the appeal must be taken. If the case is taken under advisement, the judge shall advise the defendant of the right to appea by certified mail, return receipt requested.
Official Note: Adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately.
Comment [This rule replaces former Rule 1506.]
[With respect to ''material issues'' as used in this rule, see, e.g., Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth v. Rightnour, 469 Pa. 107, 364 A.2d 927 (1976); Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1975); Commonwealth v. Hayes, 462 Pa. 291, 341 A.2d 85 (1975); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972).]
The judge's power, under paragraph (a), to deny a hearing on a specific factual issue is intended to apply when an issue of fact has already been heard fully, but has never been determined. The judge need not rehear such as issue, but would be required to determine it under paragraph (d).
The 1997 amendment to paragraph (a)(1) requires a hearing on every Commonwealth motion to dismiss due to delay in the filing of a PCRA petition. See 42 Pa.C.S. § 9543(b), as amended in 1995.
See also Rule 1509 for procedures in death penalty cases.
Except as provided in Rule 1502(e)(2) for first counseled petitions in death penalty cases, no discovery is permitted at any stage of the proceedings, except upon leave of the court with a showing of exceptional circumstances. See 42 Pa.C.S. § 9545(d)(2).
Committee Explanatory Reports:
Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
(Editor's Note: Rule 1509 is a new rule. It is printed in regular type to enhance readability.)
Rule 1509. Procedures for Petitions in Death Penalty Cases: Hearing; Disposition.
(a) No more than 20 days after the Commonwealth files an answer pursuant to Rule 1506(e)(1) or (e)(2), or if no answer if filed as permitted in Rule 1506(e)(2), within 20 days after the expiration of the time for answering, the judge shall review the petition, the Commonwealth's answer, if any, and other matters of record relating to the defendant's claim(s), and shall determine whether an evidentiary hearing is required.
(b) If the judge is satisfied from this review that there are no genuine issues concerning any material fact, that the defendant is not entitled to post-conviction collateral relief, and that no purpose would be served by any further proceedings,
(1) the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal.
(2) The defendant may respond to the proposed dismissal by filing a request for oral argument within 20 days of the date of the notice.
(3) No later than 90 days from the date of the notice, or from the date of the oral argument, if granted, the judge shall:
(i) dismiss the petition, issue an order to that effect, and advise the defendant by certified mail, return receipt requested, of the right to appeal from the final order disposing of the petition and of the time within which the appeal must be taken;
(ii) grant the defendant leave to file an amended petition; and/or
(iii) order that an evidentiary hearing be held on a date certain.
(c) If the judge determines that an evidentiary hearing is required, the judge shall enter an order setting a date certain for the hearing, which shall not be scheduled for fewer than 10 days or more than 45 days from the date of the order. The judge may, for good cause shown, grant leave to continue the hearing. No more than 90 days after the evidentiary hearing, the judge shall dispose of the petition.
(d) Failure of the judge to dispose of the petition within 90 days as required by paragraphs (b)(3) and (c) may result in the imposition of sanctions.
Official Note: Previous Rule 1509 adopted February 1, 1989, effective July 1, 1989; renumbered Rule 1510 August 11, 1997, effective immediately. Present Rule 1509 adopted August 11, 1997, effective immediately.
Comment It is intended that once a determination is made under this rule that an evidentiary hearing is required, the provisions of Rule 1508(c), (d), and (e) apply.
Committee Explanatory Reports:
Final Report explaining the August 11, 1997 adoption of new Rule 1509 published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
Rule [1509] 1510. Appeal.
An order granting, denying, dismissing, or otherwise finally disposing of a [motion] petition for post-conviction collateral relief shall constitute a final order for purposes of appeal.
Official Note: Previously Rule 1509, [Adopted] adopted February 1, 1989, effective July 1, 1989; renumbered and amended August 11, 1997, effective immediately.
Comment Disposition without a hearing under Rule 1507(a) and (b), or under Rule 1509(b)(3)(i), constitutes a final order under this rule. A partial disposition under Rule 1507(c) is not a final order until the judge has fully disposed of all claims.
Committee Explanatory Reports:
Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
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