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PA Bulletin, Doc. No. 05-1940

THE COURTS

[234 PA. CODE CH. 9]

Order Amending Rule 909; No. 331 Criminal Procedural Rules; Doc. No. 2

[35 Pa.B. 5771]

   The Criminal Procedural Rules Committee has prepared a Final Report explaining the October 7, 2005 amendments to Rule of Criminal Procedure 909 (Procedures for Petitions in Death Penalty Cases: Stays of Execution of Sentence; Hearing; Disposition). The changes clarify the provisions of Rule 909(A) (Stays) and the Comment in view of the Court's holdings in Commonwealth v. Morris, 565 Pa. 1, 771 A.2d 721 (2001) (Morris I) and Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684 (2003) (Morris II). The Final Report follows the Court's Order.

Order

Per Curiam:

   Now, this 7th day of October, 2005, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3) in the interests of justice, and a Final Report to be published with this Order:

   It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule of Criminal Procedure 909 is amended 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 234.  RULES OF CRIMINAL PROCEDURE

CHAPTER 9.  POST-CONVICTION COLLATERAL PROCEEDINGS

Rule 909.  Procedures for Petitions in Death Penalty Cases[;]: Stays of Execution of [Sentences] Sentence; Hearing; Disposition.

   (A)  Stays of Execution

*      *      *      *      *

   (2)  In all cases in which a stay of execution has been properly granted [pursuant to 42 Pa.C.S. § 9545(c)], the stay shall remain in effect through the conclusion of all PCRA proceedings, including review in the Supreme Court of Pennsylvania, or the expiration of time for seeking such review.

*      *      *      *      *

Comment

   Paragraph (A)(1) was added in 1999 to provide the avenue by which a defendant in a death penalty case may request a stay of execution. Failure to include a request for a stay in the petition for post-conviction collateral relief may not be construed as a waiver, and the defendant may file a separate request for the stay. In cases involving second or subsequent petitions when an application for a stay is filed separately from the PCRA petition, Commonwealth v. Morris, 565 Pa. 1, 771 A.2d 721, 741 (2001), provides that the separate stay application ''must set forth: a statement of jurisdiction; if necessary, a statement that a petition is currently pending before the court; and a statement showing a likelihood of prevailing on the merits.''

   Paragraph (A)(2) provides [that,] if a stay of execution is properly granted, that the stay will remain in effect throughout the PCRA proceedings in the trial court and during the appeal to the Pennsylvania Supreme Court. Nothing in this rule is intended to preclude a party from seeking review of an order granting or denying a stay of execution. See Pa.R.A.P. 1702(d) (Stay of Execution) and Pa.R.A.P. 3316 (Review of Stay of Execution Orders in Capital Cases).

*      *      *      *      *

   Official Note:  Previous Rule 1509 adopted February 1, 1989, effective July 1, 1989; renumbered Rule [910] 1510 August 11, 1997, effective immediately. Present Rule 1509 adopted August 11, 1997, effective immediately; amended July 23, 1999, effective September 1, 1999; renumbered Rule 909 and amended March 1, 2000, effective April 1, 2001; amended February 12, 2002, effective July 1, 2002, 32 Pa.B. 1173; amended October 7, 2005, effective February 1, 2006.

Committee Explanatory Reports:

*      *      *      *      *

   Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).

*      *      *      *      *

   Final Report explaining the October 7, 2005 amendments to paragraph (A)(2) and revision of the Comment concerning Commonwealth v. Morris published with the Court's Order at 35 Pa.B. 5772 (October 22, 2005).

FINAL REPORT1


Amendments to Pa.R.Crim.P. 909
Commonwealth v. Morris: Stays of Execution

   On October 7, 2005, effective February 1, 2006, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Pa.R.Crim.P. 909. The changes clarify the provisions of Rule 909(A) (Stays) and the Comment in view of the Court's holdings in Commonwealth v. Morris, 565 Pa. 1, 771 A.2d 721 (2001) (Morris I) and Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684 (2003) (Morris II).

Rule 909(A)

   The Committee, working in conjunction with the Appellate Courts Rules Committee,2 reviewed the two Morris decisions, including Justice Castille's concurrence in Morris I outlining the history of Section 9545(c) of the PCRA and opining that Section 9545(c) was intended to apply to second or subsequent petitions only, to determine whether any changes to Rule 909 were necessary. We also reviewed the text of 42 Pa.C.S. § 9545(c) and the Committee's Rule 909(A) history.3 Based on our review, the Committee reasoned if Section 9545(c) only applies to second or subsequent PCRA petitions, and since both Morris decisions clearly address serial PCRA petitions only, then the reference to Section 9545(c) in Rule 909(A)(2) is mischievous and too limiting. Accordingly, Rule 909(A)(2) has been amended by deleting the reference to Section 9545(c) to avoid further confusion about the scope of the application of paragraph (A)(2).

   In addition, as the Committee worked with the Appellate Rules Committee in developing our respective ''Morris'' proposals, we noted current Rule 909(A) could be construed as being in conflict with the Morris changes in new Rule of Appellate Procedure 3316 and amended Rule of Appellate Procedure 1702. In view of this concern, Rule 909(A)(2) has been amended by the addition of ''properly'' before ''granted'' in the first line, thus making it clear in Rule 909 that paragraph (A) is intended to apply only to stays that have been properly granted by the trial judge.

Rule 909 Comment

   From our review of the 1999 rule changes when the stay provisions were added to Rule 909, the Committee recalled the language in paragraph (A)(1) and the Comment concerning filing requests for stays in the PCRA petition or as a separate request had been added by the Committee to provide guidance about requesting stays because the PCRA is silent in this regard.4 To provide further guidance to the bench, bar, and pro se defendants in view of the Morris decisions, the Comment has been revised to include the requirements set forth in Morris I for the contents of applications for stays filed separately from second or subsequent PCRA petitions:

In cases involving second or subsequent petitions when an application for a stay is filed separately from the PCRA petition, Commonwealth v. Morris, 565 Pa. 1, 771 A.2d 721, 741 (2001), provides that the separate stay application ''must set forth: a statement of jurisdiction; if necessary, a statement that a petition is currently pending before the court; and a statement showing a likelihood of prevailing on the merits.''

   Finally, the Comment has been revised to include cross-references to new Rule of Appellate Procedure 3316 and amended Rule of Appellate Procedure 1702. These rules provide the procedures for the appeal from a grant of a stay in a death penalty case.

[Pa.B. Doc. No. 05-1940. Filed for public inspection October 21, 2005, 9:00 a.m.]

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1  The Committee's Final Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.

2  Because of the interplay between the Criminal Rules and the Appellate Rules concerning stays in death penalty cases in view of the Morris decisions, the Committee coordinated our Rule 909 modifications with the Appellate Court Procedural Rules Committee's development of amendments to Rule 1702 and new Rule 3316.

3  The Rule 909(A) stay provisions were adopted in 1999 in response to a recommendation from the Third Circuit Court's Task Force on Management of Death Penalty Litigation that, when a stay of execution has been granted, the stay should remain in effect for the duration of the post-conviction collateral proceedings at the trial level and any appeal to the Supreme Court. See Committee's Final Report at 29 Pa.B. 4167 (August 7, 1999).

4  See the Committee's explanatory Final Report, supra.


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