THE COURTS
PART I. RULES OF APPELLATE PROCEDURE
[210 PA. CODE CHS. 17 AND 33]
Proposed Adoption of New Pa.R.A.P. 1702(d) and Pa.R.A.P. 3316; Recommendation No. 2 of 2002
[32 Pa.B. 5260]
Internal Recommendation No. 46 The Appellate Court Procedural Rules Committee proposes to adopt Pennsylvania Rule of Appellate Procedure 1702(d) and 3316. The amendment is being submitted to the bench and bar for comments and suggestions prior to their submission to the Supreme Court.
All communications in reference to the proposed new rules should be sent not later than sixty days from the date of this publication to the Appellate Court Procedural Rules Committee, P. O. Box 447, Ridley Park, PA 19078-0447.
The Explanatory Comment which appears in connection with the proposed new rules have been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules nor will it be officially adopted or promulgated by the Court.
By the Appellate Court Procedural Rules Committee
HONORABLE JOSEPH A. HUDOCK,
Chair
Annex A
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
ARTICLE II. APPELLATE PROCEDURE
CHAPTER 17. EFFECT OF APPEALS; SUPERSEDEAS AND STAYS
IN GENERAL Rule 1702. Stay Ancillary to Appeal.
* * * * * (d) Stay of Execution. Where a lower court enters an order granting or denying a stay of execution in a capital case, such order may be reviewed by the Supreme Court upon application pursuant to Rule 123. No appeal or petition for review need be filed in connection with an application for review of a stay order in a capital case.
Explanatory Comment--2002 See Pa.R.A.P. 3316 and Explanatory Comment.
ARTICLE III. MISCELLANEOUS PROVISIONS
CHAPTER 33. BUSINESS OF THE SUPREME COURT
SUPERSEDEAS AND STAYS Rule 3316. Review of Stay of Execution Orders in Capital Cases.
Where a court has entered an order granting or denying a stay of execution in a capital case, such order may be reviewed by the Supreme Court in the manner prescribed in Rule 1702(d).
Explanatory Comment--2002 The promulgation of new Rule 3316 addresses a gap in the Rules of Appellate Procedure such that there was no immediate vehicle for review of stays of execution orders granted or denied ancillary to PCRA petitions in capital cases. See Commonwealth v. Morris, 771 A.2d 721 (Pa. 2001). The new Rule permits an immediate appeal from an order granting or denying a stay pending a determination of the underlying PCRA. The new rule also permits immediate review of a grant or denial of a stay of execution without the filing of an appeal, in situations where the trial court grants a stay of execution but denies the PCRA and where the trial court grants or denies a stay of execution before determining the merits of the PCRA.
There may be unusual cases where the PCRA court does not grant a stay of execution until it denies a timely PCRA. In such cases, the Commonwealth may also take an immediate appeal from the denial of the stay of execution, even before the petitioner files an appeal from the denial of the PCRA. The PCRA court lacks jurisdiction to grant a stay of execution in connection with an untimely PCRA. See Commonwealth v. Morris, supra. However, the improper grant of a stay in connection with an untimely PCRA is also immediately reviewable under this Rule. See Pa.R.Crim.P. 909(a)(2).
[Pa.B. Doc. No. 02-1871. Filed for public inspection October 25, 2002, 9:00 a.m.]
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