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PA Bulletin, Doc. No. 05-1938

THE COURTS

Title 210--APPELLATE PROCEDURE

PART I.  RULES OF APPELLATE PROCEDURE

[210 PA. CODE CHS. 17 AND 33]

Order Adopting Pa.R.A.P. 1702(d) and 3316; No. 170; Appellate Procedural Rules; Doc. No. 1

[35 Pa.B. 5768]

Order

Per Curiam

   And Now, this 7th day of October, 2005, upon the recommendation of the Appellate Court Procedural Rules Committee, the proposal having been published before adoption at 32 Pa.B. 5260 (October 26, 2002),

   It Is Ordered, pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Pennsylvania Rules of Appellate Procedure 1702(d) and 3316 be adopted in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b) and shall be effective February 1, 2006.

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.--When a trial 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 Note--2005

   Nothing in subdivision (d) of Pa.R.A.P. 1702 or in Pa.R.A.P. 3316 is intended to abrogate the requirement in Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684 (2003) (''Morris II'') that any grant of a stay by the trial court while a Post Conviction Relief Act (''PCRA'') petition is pending must comply with the PCRA, 42 Pa.C.S. § 9545(c)(1), nor do these rules expand or diminish any inherent powers of the Supreme Court to grant a stay of execution. See Morris II; see also 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.

   When a trial 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--2005

   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 Post Conviction Relief Act (''PCRA'') petitions in capital cases. See Commonwealth v. Morris, 565 Pa. 1, 771 A.2d 721 (2001) (''Morris I''). The new Rule permits an immediate appeal from an order granting or denying a stay pending a determination of the underlying PCRA petition. The new Rule also permits immediate review of a grant of a stay of execution without the filing of an appeal in situations in which the trial court grants a stay of execution but denies the PCRA petition.

   There may be cases in which the PCRA court denies a stay of execution at the same time that it denies a timely PCRA petition. In such cases, the petitioner may 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 petition. The PCRA court lacks jurisdiction to grant a stay of execution in connection with an untimely PCRA petition. See Morris I. However, the improper grant of a stay in connection with an untimely PCRA petition is also immediately reviewable under this Rule. See Pa.R.Crim.P. 909(A)(2).

   Pa.R.Crim.P. 909(A)(2) only applies to properly granted stays of execution. Once a stay is properly granted, it is not reviewable until the conclusion of the PCRA proceedings, including appellate review. However, the Commonwealth may seek review under Rule 3316 to determine whether the PCRA court properly granted the stay.

   The standard of review for stay applications under 42 Pa.C.S. § 9545(c) is a heightened standard, since there is a greater potential that second and subsequent PCRA applications have been filed merely for purposes of delaying the execution of sentence. See Morris I and Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684 (2003) (''Morris II''). Stays of execution in capital cases, however, are routinely granted in timely-filed, first PCRA petitions.

   Nothing in this Rule or subdivision (d) of Rule 1702 is intended to abrogate the requirement in Morris II that any grant of a stay by the trial court while a PCRA petition is pending must comply with the PCRA, 42 Pa.C.S. § 9545(c)(1), nor do these rules expand or diminish any inherent powers of the Supreme Court to grant a stay of execution. See Morris II.

[Pa.B. Doc. No. 05-1938. Filed for public inspection October 21, 2005, 9:00 a.m.]


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