[47 Pa.B. 4633]
[Saturday, August 12, 2017]
[Continued from previous Web Page]
CHAPTER 15. JUDICIAL REVIEW OF GOVERNMENTAL DETERMINATIONS
IN GENERAL Rule 1501. Scope of Chapter.
(a) General rule.—Except as otherwise prescribed by [Subdivisions] paragraphs (b) and (c) of this rule, this chapter applies to:
(1) Appeals from an administrative agency (within the meaning of Section 9 of Article V of the Constitution of Pennsylvania) to an appellate court.
(2) Appeals to an appellate court pursuant to 2 Pa.C.S. § 702 [(appeals)], 42 Pa.C.S. § 5105 [(right to appellate review)], or any other statute providing for judicial review of a determination of a government unit.
(3) Original jurisdiction actions heretofore cognizable in an appellate court by actions in the nature of equity, replevin, mandamus or quo warranto or for declaratory judgment, or upon writs of certiorari or prohibition.
(4) Matters designated by general rule, [e.g.] for example, review of orders refusing to certify interlocutory orders for immediate appeal, release prior to sentence, appeals under Section 17(d) of Article II of the Constitution of Pennsylvania, and review of special prosecutions or investigations.
(b) Appeals governed by other provisions of rules.—This chapter does not apply to any appeal within the scope of:
(1) Chapter 9 [(appeals from lower courts)].
(2) Chapter 11 [(appeals from Commonwealth Court and Superior Court)].
(3) Chapter 13 [(interlocutory appeals by permission)], except that the provisions of this chapter and ancillary provisions of these rules applicable to practice and procedure on petition for review, so far as they may be applied, shall be applicable: (a) where required by the [Note to Rule 341 and the Note to Rule] note to Pa.R.A.P. 341 and the note to Pa.R.A.P. 1311; and (b) after permission to appeal has been granted from a determination which, if final, would be subject to judicial review pursuant to this chapter.
(4) [Rule 1941 (review of death sentences).] Pa.R.A.P. 3312 (automatic review of death sentence).
(c) Unsuspended statutory procedures.—This chapter does not apply to any appeal pursuant to the following statutory provisions, which are not suspended by these rules:
(1) Section 137 of Title 15 of the Pennsylvania Consolidated Statutes (Court to pass upon rejection of documents by Department of State).
(2) The Pennsylvania Election Code.
(d) Jurisdiction of courts unaffected.—This chapter does not enlarge or otherwise modify the jurisdiction and powers of the Commonwealth Court or any other court.
Official Note: This chapter applies to review of any ''determination'' of a ''government unit'' as defined in [Rule] Pa.R.A.P. 102, assuming, of course, that the subject matter of the case is within the jurisdiction of a court subject to these rules (see [Subdivision] paragraph (d) of this rule). A ''determination'' means ''action or inaction by a government unit which action or inaction is subject to judicial review by a court under Section 9 of Article V of the Constitution of Pennsylvania or otherwise. The term includes an order entered by a government unit.'' The term ''government unit'' is all inclusive and means ''the Governor and the departments, boards, commissions, officers, authorities and other agencies of the Commonwealth, including the General Assembly and its officers and agencies and any court or other officer or agency of the unified judicial system, and any political subdivision or municipal or other local authority or any officer or agency of any such political subdivision or local authority. The term includes a board of arbitrators whose determination is subject to review under 42 Pa.C.S. § 763(b) (awards of arbitrators).'' The term ''administrative agency'' is not defined in these rules, although the term is used in these rules as a result of its appearance in Section 9 of Article V of the Constitution of Pennsylvania.
[Subdivision] Subparagraph (a)(4) was added in 2004 to recognize the references in various appellate rules and accompanying notes to petition for review practice. For example, the [Notes to Rules] notes to Pa.R.A.P. 341 and 1311 direct counsel to file a petition for review of a trial court or government agency order refusing to certify an interlocutory order for immediate appeal. Similarly, [Rule] Pa.R.A.P. 1762 directs the filing of a petition for review when a party seeks release on bail before judgment of sentence is rendered, see [Rule] Pa.R.A.P. 1762(b), and [Rule] Pa.R.A.P. 1770 directs the filing of a petition for review when a juvenile seeks review of placement in a juvenile delinquency matter. A petition for review is also the proper method by which to seek judicial review pursuant to [Rule] Pa.R.A.P. 3321 (regarding legislative reapportionment commission) and [Rule] Pa.R.A.P. 3331 (regarding special prosecutions or investigations). The 2004 and 2012 amendments clarify the use of petitions for review in these special situations.
[Subdivision] Paragraph (b) of this rule is necessary because otherwise conventional appeals from a court (which is included in the scope of the term ''government unit'') to an appellate court would fall within the scope of this chapter under the provisions of [Paragraph] subparagraph (a)(2) of this rule.
[Subdivision] Paragraph (c) expressly recognizes that some statutory procedures are not replaced by petition for review practice. Thus, matters brought pursuant to Section 137 of the Associations Code governing judicial review of documents rejected by the Department of State or pursuant to the Election Code are controlled by the applicable statutory provisions and not by the rules in Chapter 15. See 15 Pa.C.S. § 137; Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600—3591.
In light of [Subdivision] paragraph (d), where the court in which a petition for review is filed lacks subject matter jurisdiction ([e.g.] for example, a petition for review of a local government question filed in the Commonwealth Court), [Rules] Pa.R.A.P. 741 (waiver of objections to jurisdiction), 751 (transfer of erroneously filed cases), and 1504 (improvident petitions for review) will be applicable. See also 42 Pa.C.S. § 5103.
The 2004 amendments are made to petition for review practice to address the evolution of judicial responses to governmental actions. As indicated in the [Note to Rule] note to Pa.R.A.P. 1502, when the Rules of Appellate Procedure were initially adopted, there was a ''long history in the Commonwealth . . . of relatively complete exercise of the judicial review function under the traditional labels of equity, mandamus, certiorari, and prohibition.'' While such original jurisdiction forms of action are still available, their proper usage is now the exception rather than the rule because appellate proceedings have become the norm. Thus, the need to rely on [Rule] Pa.R.A.P. 1503 to convert an appellate proceeding to an original jurisdiction action and vice versa arises less often. Moreover, the emphasis on a petition for review as a generic pleading that permits the court to simultaneously consider all aspects of the controversy is diminished. The primary concern became making the practice for appellate proceedings more apparent to the occasional appellate practitioner. Accordingly, the rules have been amended to more clearly separate procedures for appellate proceedings from those applicable to original jurisdiction proceedings.
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CHAPTER 17. EFFECT OF APPEALS; SUPERSEDEAS AND STAYS
IN GENERAL Rule 1702. Stay Ancillary to Appeal.
(a) General rule.—Applications for relief under this chapter will not be entertained by an appellate court or a judge thereof until after a notice of appeal has been filed in the [lower] trial court and docketed in the appellate court or a petition for review has been filed.
(b) Proceedings on petition for allowance of or permission to appeal.—Applications for relief under this chapter may be made without the prior filing of a petition for allowance of appeal or petition for permission to appeal, but the failure to effect timely filing of such a petition, or the denial of such a petition, shall automatically vacate any ancillary order entered under this chapter. In such a case, the clerk of the court in which the ancillary order was entered shall, on praecipe of any party to the matter, enter a formal order under this rule vacating such ancillary order.
(c) Supreme Court review of appellate court supersedeas and stay determinations.—No appeal, petition for allowance of appeal, or petition for review need be filed in the Supreme Court in connection with a reapplication under [Rule 3315] Pa.R.A.P. 3319 (review of stay orders of appellate courts).
Official Note: [Based on former Superior Court Rule 53 and Commonwealth Court Rule 112A, which required the taking of an appeal prior to an application for supersedeas or other interlocutory order. Subdivision (b) is new and is] Paragraph (b) was added in recognition of the fact that the drafting of a petition for allowance of appeal or a petition for permission to appeal in the form required by these rules may not be possible prior to the time when an application for supersedeas may have to be made in the appellate court in order to avoid substantial harm.
Rule 1704. [Application in a Capital Case for a Stay of Execution or for Review of an Order Granting or Denying a Stay of Execution.] Rescinded by Order of (DATE)).
[Prior notice of the intent to file an application in a capital case for a stay or review of an order granting or denying a stay of execution shall be provided to the Prothonotary of the Pennsylvania Supreme Court, if prior notice is practicable.
The application for stay or review shall set forth the following:
1. The date the warrant issued; the date and nature of the order that prompted the issuance of the warrant; and the date the execution is scheduled, if a date has been set;
2. Whether any direct or collateral challenges to the underlying conviction are pending, and, if so, in what court(s) or tribunal(s);
3. Whether any other applications for a stay of the pending execution have been filed, and, if so, in what court(s) or tribunal(s), when, and the status of the application(s);
4. The grounds for relief and the showing made to the trial court of entitlement to a stay under 42 Pa.C.S. § 9545(c), if applicable;
5. A statement certifying that emergency action is required and setting forth a description of the emergency.
All dockets, pleadings, and orders that are referred to in 1—5 above must be attached to the application. If any of the information provided in the application changes while the motion is pending, the party seeking the stay or review must file with the Pennsylvania Supreme Court written notice of the change within 24 hours.
No notice of appeal or petition for review needs to be filed in order to file an application under this rule.]
Official Note: The Supreme Court rescinded this rule on (DATE), as part of its consolidation of the rules relating to capital appeals. Pa.R.A.P. 3314 now provides the procedures governing applications for a stay of execution or for review of an order granting or denying a stay of execution.
STAY IN CRIMINAL MATTERS Rule 1761. Capital Cases.
[The pendency of proceedings under Rule 1941 (review of sentence of death) shall stay execution of sentence of death.
Official Note: Based on 42 Pa.C.S. § 9711(h) (review of death sentence).]
Stays of execution in death penalty cases are governed by Pa.R.A.P. 3314.
CHAPTER 19. PREPARATION AND TRANSMISSION OF RECORD AND RELATED MATTERS
[REVIEW OF DEATH SENTENCES] Rule 1941. [Review of Sufficiency of the Evidence and the Propriety of the Penalty in Death Penalty Appeals.] Rescinded by Order of (DATE).
[(a) Procedure in trial court. Upon the entry of a sentence subject to 42 Pa.C.S. § 9711(h) (review of death sentence) the court shall direct the official court reporter and the clerk to proceed under this chapter as if a notice of appeal had been filed 20 days after the date of entry of the sentence of death, and the clerk shall immediately give written notice of the entry of the sentence to the Administrative Office and to the Supreme Court Prothonotary's Office. The clerk shall insert at the head of the list of documents required by Pa.R.A.P. 1931(c) a statement to the effect that the papers are transmitted under this rule from a sentence of death.
(b) Filing and docketing in the Supreme Court. Upon receipt by the Prothonotary of the Supreme Court of the record of a matter subject to this rule, the Prothonotary shall immediately:
(1) Enter the matter upon the docket as an appeal, with the defendant indicated as the appellant and the Commonwealth indicated as the appellee.
(2) File the record in the Supreme Court.
(3) Give written notice of the docket number assignment in person or by first class mail to the clerk of the trial court.
(4) Give notice to all parties and the Administrative Office of the docket number assignment and the date on which the record was filed in the Supreme Court, and give notice to all parties of the date, if any, specially fixed by the Prothonotary pursuant to Pa.R.A.P. 2185(b) for the filing of the brief of the appellant.
(c) Further proceedings. Except as required by Pa.R.A.P. 2189 or by statute, a matter subject to this rule shall proceed after docketing in the same manner as other appeals in the Supreme Court.
Official Note: Formerly the Act of February 15, 1870 (P.L. 15, No. 6) required the appellate court to review the sufficiency of the evidence in certain homicide cases regardless of the failure of the appellant to challenge the matter. See, e.g., Commonwealth v. Santiago, 382 A.2d 1200 (Pa. 1978). Pa.R.A.P. 302 now provides otherwise with respect to homicide cases generally. However, under paragraph (c) of this rule the procedure for automatic review of capital cases provided by 42 Pa.C.S. § 9711(h) (review of death sentence) will permit an independent review of the sufficiency of the evidence in such cases. In capital cases, the Supreme Court has jurisdiction to hear a direct appeal and will automatically review (1) the sufficiency of the evidence ''to sustain a conviction for first-degree murder in every case in which the death penalty has been imposed;'' (2) the sufficiency of the evidence to support the finding of at least one aggravating circumstance set forth in 42 Pa.C.S. § 9711(d); and (3) the imposition of the sentence of death to ensure that it was not the product of passion, prejudice, or any other arbitrary factor. Commonwealth v. Mitchell, 902 A.2d 430, 444, 468 (Pa. 2006); 42 Pa.C.S. § 722; 42 Pa.C.S. § 9711(h)(1), (3). Any other issues from the proceedings that resulted in the sentence of death may be reviewed only if they have been preserved and if the defendant files a timely notice of appeal.
Likewise, although Pa.R.A.P. 702(b) vests jurisdiction in the Supreme Court over appeals from sentences imposed on a defendant for lesser offenses as a result of the same criminal episode or transaction where the offense is tried with the capital offense, the appeal from the lesser offenses is not automatic. Thus the right to appeal the judgment of sentence on a lesser offense will be lost unless all requisite steps are taken, including preservation of issues (such as by filing post-trial motions) and filing a timely notice of appeal.
See Pa.R.A.P. 2189 for provisions specific to the production of a reproduced record in cases involving the death penalty.
Explanatory Comment—1979 The clerk is required to ''flag'' capital cases by appropriate notation on the face of the record certification. The rule is revised to reflect the fact that the requirement of Rule 302 that an issue be raised below in order to be available on appeal may not be applicable in cases of automatic statutory review of death sentences. ]
Official Note: The Supreme Court rescinded this rule on (DATE) as part of its consolidation of the rules relating to capital appeals. The revised content of former Pa.R.A.P. 1941 is now found in Pa.R.A.P. 3311 and 3312.
CHAPTER 21. BRIEFS AND REPRODUCED RECORD
CONTENT OF REPRODUCED RECORD Rule 2151. Consideration of Matters on the Original Record without the Necessity of Reproduction.
(a) General rule.—An appellate court may by rule of court applicable to all cases, or to classes of cases, or by order in specific cases under [Subdivision] paragraph (d) of this rule, dispense with the requirement of a reproduced record and permit appeals and other matters to be heard on the original record, with such copies of the record, or relevant parts thereof, as the court may require.
(b) In forma pauperis.—If leave to proceed in forma pauperis has been granted to a party, such party shall not be required to reproduce the record.
(c) Original hearing cases.—When, under the applicable law, the questions presented may be determined in whole or in part upon the record made before the appellate court, a party shall not be required to reproduce the record.
(d) On application to the court.—Any appellant may within 14 days after taking an appeal file an application to be excused from reproducing the record for the reason that the cost thereof is out of proportion to the amount involved, or for any other sufficient reason. Ordinarily leave to omit reproduction of the record will not be granted in any case where the amount collaterally involved in the appeal is not out of proportion to the reproduction costs.
Official Note: [Based on former Supreme Court Rules 35D, 35E and 61(f), former Superior Court Rules 51 (last sentence) and 52, and former Commonwealth Court Rules 81, 110B and 111A. Subdivision (a) is new and is included in recognition of the developing trend toward sole reliance on the original record.
See Rule 2189 for procedure in cases involving the death penalty.]
Paragraph (a) is included in recognition of the developing trend toward sole reliance on the original record.
See Pa.R.A.P. 3311(d) and 3313(b) for provisions specific to the production of a reproduced record in cases involving the death penalty.
Rule 2152. Content and Effect of Reproduced Record.
(a) General rule.—The reproduced record shall contain:
(1) The relevant docket entries and any relevant related matter (see Rule 2153 (docket entries and related matter)).
(2) Any relevant portions of the pleadings, charge, or findings see Rule 2175(b) (order and opinions), which provides for a [cross reference] cross-reference note only to orders and opinions reproduced as part of the brief of appellant).
(3) Any other parts of the record to which the parties wish to direct the particular attention of the appellate court.
(b) Immaterial formal matters.—Immaterial formal matters (captions, subscriptions, acknowledgments, etc.) shall be omitted.
(c) Effect of reproduction of record.—The fact that parts of the record are not included in the reproduced record shall not prevent the parties or the appellate court from relying on such parts
Official Note: The general rule has long been that evidence which has no relation to or connection with the questions involved must not be reproduced. [See former Supreme Court Rule 44, former Superior Court Rule 36 and former Commonwealth Court Rule 88. See also, e.g., Shapiro v. Malarkey, 278 Pa. 78, 84, 122 Atl. 341, 342, 29 A.L.R. 1358 (1923); Sims v. Pennsylvania R.R. Co., 279 Pa. 111, 117, 123 Atl. 676, 679 (1924).] See Shapiro v. Malarkey, 122 A. 341, 342 (Pa. 1923); Sims v. Pennsylvania R.R. Co., 123 A. 676, 679 (Pa. 1924).
[See Rule 2189 for procedure in cases involving the death penalty.]
See Pa.R.A.P. 3311(d) and 3313(b) for provisions specific to the production of a reproduced record in cases involving the death penalty.
Rule 2154. Designation of Contents of Reproduced Record.
(a) General rule.—Except when the appellant has elected to proceed under [Subdivision] paragraph (b) of this rule, or as otherwise provided in [Subdivision] paragraph (c) of this rule, the appellant shall, not later than 30 days before the date fixed by or pursuant to [Rule 2185 (service and filing of briefs)] Pa.R.A.P. 2185 for the filing of his or her brief, serve and file a designation of the parts of the record which he or she intends to reproduce and a brief statement of issues which he or she intends to present for review. If the appellee deems it necessary to direct the particular attention of the court to parts of the record not designated by the appellant, the appellee shall, within ten days after receipt of the designations of the appellant, serve and file a designation of those parts. The appellant shall include in the reproduced record the parts thus designated. In designating parts of the record for reproduction, the parties shall have regard for the fact that the entire record is always available to the court for reference and examination and shall not engage in unnecessary designation.
(b) Large records.—If the appellant shall so elect, or if the appellate court has prescribed by rule of court for classes of matters or by order in specific matters, preparation of the reproduced record may be deferred until after the briefs have been served. Where the appellant desires thus to defer preparation of the reproduced record, the appellant shall, not later than the date on which his or her designations would otherwise be due under [Subdivision] paragraph (a), serve and file notice that he or she intends to proceed under this [subdivision] paragraph. The provisions of [Subdivision] paragraph (a) shall then apply, except that the designations referred to therein shall be made by each party at the time his or her brief is served, and a statement of the issues presented shall be unnecessary.
(c) Children's fast track appeals.
(1) In a children's fast track appeal, the appellant shall not later than 23 days before the date fixed by or pursuant to [Rule 2185 (service and filing of briefs)] Pa.R.A.P. 2185 for the filing of his or her brief, serve and file a designation of the parts of the record which he or she intends to reproduce and a brief statement of issues which he or she intends to present for review. If the appellee deems it necessary to direct the particular attention of the court to parts of the record not designated by the appellant, the appellee shall, within 7 days after receipt of the designations of the appellant, serve and file a designation of those parts. The appellant shall include in the reproduced record the parts thus designated. In designating parts of the record for reproduction, the parties shall have regard for the fact that the entire record is always available to the court for reference and examination and shall not engage in unnecessary designation.
(2) In a children's fast track appeal, the provisions of [Subdivision] paragraph (b) shall not apply.
Official Note: [Based in part upon former Supreme Court Rule 44, former Superior Court Rule 36 and former Commonwealth Court Rule 88. The prior statutory practice required the lower court or the appellate court to resolve disputes concerning the contents of the reproduced record prior to reproduction. The statutory practice was generally recognized as wholly unsatisfactory and has been abandoned in favor of deferral of the issue to the taxation of costs phase. The uncertainty of the ultimate result on the merits provides each party with a significant incentive to be reasonable, thus creating a self-policing procedure.
Of course, parties] Parties proceeding under either procedure may by agreement omit the formal designations and accelerate the preparation of a reproduced record containing the material which the parties have agreed should be reproduced.
[See Rule 2189 for procedure in cases involving the death penalty.]
See Pa.R.A.P. 3311(d) and 3313(b) for provisions specific to the production of a reproduced record in cases involving the death penalty.
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Rule 2155. Allocation of Cost of Reproduced Record.
(a) General rule.—Unless the parties otherwise agree, the cost of reproducing the record shall initially be paid by the appellant, but if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for a determination of the issues presented, the appellant may so advise the appellee and the appellee shall advance the cost of including such parts. If the appellee fails to advance such costs within ten days after written demand therefor, the appellant may proceed without reproduction of the parts of the record designated by appellee which the appellant considered to be unnecessary.
(b) Allocation by court.—The cost of reproducing the record shall be taxed as costs in the case pursuant to Chapter 27 [(fees and costs in appellate courts and on appeal)], but if either party shall cause material to be included in the reproduced record unnecessarily, the appellate court may on application filed within ten days after the last brief is filed, in its order disposing of the appeal, impose the cost of reproducing such parts on the designating party.
Official Note: This rule reflects the fact that the appellate judge to whom a case is assigned for preparation of an opinion will ordinarily be in the best position to determine whether an excessive amount of the record has been included in the reproduced record by a party.
[See Rule 2189 for procedure in cases involving the death penalty.]
See Pa.R.A.P. 3311(d) and 3313(b) for provisions specific to the production of a reproduced record in cases involving the death penalty.
FILING AND SERVICE Rule 2187. Number of Copies to be Served and Filed.
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(b) Advance text of briefs.—If the record is being reproduced pursuant to [Rule] Pa.R.A.P. 2154(b) (large records), two copies of each brief without definitive reproduced record pagination shall be served on each party separately represented. Proof of service showing compliance with this rule (but not including the advance text of the brief) shall be filed with the prothonotary of the appellate court.
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Official Note: [See Rule 2189 for procedure in cases involving the death penalty.] See Pa.R.A.P. 3311(d) and 3313(b) for provisions specific to the production of a reproduced record in cases involving the death penalty.
Rule 2189. [Reproduced Record in Cases Involving the Death Penalty.] Rescinded by Order of (DATE).
[(a) Number of Copies.—Any provisions of these rules to the contrary notwithstanding, in all cases involving the death penalty, eight copies of the entire record shall be reproduced and filed with the prothonotary of the Supreme Court, unless the Supreme Court shall by order in a particular case direct filing of a lesser number.
(b) Costs of Reproduction.—Appellant, or, in cases where appellant has been permitted to proceed in forma pauperis, the county where the prosecution was commenced, shall bear the cost of reproduction.
(c) Prior Rules Superseded.—To the extent that this rule conflicts with provisions of Rule 2151(a), (b) (relating to necessity of reproduction of records); Rule 2152 (relating to content of reproduced records); Rule 2154(a) (relating to designation of contents of reproduced records); Rule 2155 (allocating costs of reproduction of records); and Rule 2187(a), (prescribing numbers of copies of reproduced record to be filed), the same are superseded.
Official Note: The death penalty statute, 42 Pa.C.S. § 9711, provides that the Supreme Court Prothonotary must send a copy of the lower court record to the Governor after the Supreme Court affirms a sentence of death. The statute does not state who is responsible for preparing the copy. This amendment provides for preparation of the Governor's copy of the record before the record is sent to the Supreme Court.]
Official Note: The Supreme Court rescinded Pa.R.A.P. 2189 on (DATE) as part of its consolidation of the rules relating to capital appeals. The revised content of former Pa.R.A.P. 2189 is now found in Pa.R.A.P. 3311(d) and 3313(b).
CHAPTER 25. POST-SUBMISSION PROCEEDINGS
IN GENERAL Rule 2521. Entry of Judgment or Other Orders.
(a) General Rule—Subject to the provisions of [Rule] Pa.R.A.P. 108 (date of entry of orders), the notation of a judgment or other order of an appellate court [in] on the docket constitutes entry of the judgment or other order. The prothonotary of the appellate court shall prepare, sign, and enter the judgment following receipt of the opinion of the court unless the opinion is accompanied by an order signed by the court, or unless the opinion directs settlement of the form of the judgment, in which event the prothonotary shall prepare, sign, and enter the judgment following settlement by the court. If a judgment is rendered without an opinion or an order signed by the court, the prothonotary shall prepare, sign and enter the judgment following instruction from the court. The prothonotary shall, on the date a judgment or other order is entered, send by first class mail to all parties a copy of the opinion, if any, or of the judgment or other order if no opinion was written, and notice of the date of entry of the judgment or other order.
[(b) Notice in Death Penalty Cases. Pursuant to Pa.R.Crim.P. 900(B), in all death penalty cases upon the Supreme Court's affirmance of the judgment of a death sentence, the prothonotary shall include in the mailing required by subdivision (a) of this Rule the following information concerning the Post Conviction Relief Act and the procedures under Chapter 9 of the Rules of Criminal Procedure. For the purposes of this notice, the term ''parties'' in subdivision (a) shall include the defendant, the defendant's counsel, and the attorney for the Commonwealth.
(1) A petition for post-conviction collateral relief must be filed within one year of the date the judgment becomes final, except as otherwise provided by statute.
(2) As provided in 42 Pa.C.S. § 9545(b)(3), 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.
(3)(A) If the defendant fails to file a petition within the one-year limit, the action may be barred. See 42 Pa.C.S. § 9545(b).
(B) Any issues that could have been raised in the post-conviction proceeding, but were not, may be waived. See 42 Pa.C.S. § 9544(b).
(4) Pursuant to Rule 904 (Appointment of Counsel; In Forma Pauperis), the trial judge will appoint new counsel for the purpose of post-conviction collateral review, unless:
(A) the defendant has elected to proceed pro se or waive post-conviction collateral proceedings, and the judge finds, after a colloquy on the record, that the defendant is competent and the defendant's election is knowing, intelligent and voluntary;
(B) the defendant requests continued representation by original trial counsel or direct appeal counsel, and the judge finds, after a colloquy on the record, that the petitioner's election constitutes a knowing, intelligent and voluntary waiver of a claim that counsel was ineffective; or
(C) the judge finds, after a colloquy on the record, that the defendant has engaged counsel who has entered, or will promptly enter, an appearance for the collateral review proceedings.
Official Note: See Pa.R.Crim.P. 900(B), which also includes the identical requirement in death penalty cases that notice of the information concerning the statutory time limitations for filing petitions for post-conviction collateral relief and the right to counsel enumerated in subdivision (b) of this rule be sent by the prothonotary with the order or opinion sent pursuant to subdivision (a) of this rule. Because of the importance of this notice requirement to judges, attorneys and defendants, the requirement that the Supreme Court Prothonotary mail the aforesaid notice has been included in both the Rules of Criminal Procedure and the Rules of Appellate Procedure.]
Official Note: The Supreme Court rescinded former paragraph (b) on (DATE) as part of its consolidation of the rules relating to capital appeals. The revised content of former Pa.R.A.P. 2521 (b) is now found in Pa.R.A.P. 3311(e).
REMAND OF RECORD Rule 2572. Time for Remand of Record.
(a) General rule.—Except as provided in paragraphs (b) or (c), the record shall be remanded after the entry of the judgment or other final order of the appellate court possessed of the record.
(1) Supreme Court orders. [The time for the remand of the record pursuant to subdivision (a) following orders of the Supreme Court shall be] In Supreme Court appeals, the record shall be remanded at the expiration of 14 days after the entry of the judgment or other final order.
[(1) 7 days after expiration of the time for appeal or petition for writ of certiorari to the United States Supreme Court in cases in which the death penalty has been imposed, and
(2) 14 days in all other cases.
Official Note: The amendment provides for remand seven days after expiration of the time for appeal or petition for writ of certiorari to the United States Supreme Court in cases in which the death penalty has been imposed. This keeps the movement of the record to a minimum and decreases any risks associated with the physical movement of the record.]
(b) Effect of pending post-decision applications on remand.—Remand is stayed until disposition of: (1) an application for reargument; (2) any other application affecting the order; or (3) a petition for allowance of appeal from the order. The court possessed of the record shall remand 30 days after either the entry of a final order or the disposition of all post-decision applications, whichever is later.
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ARTICLE III. MISCELLANEOUS PROVISIONS
CHAPTER 33. BUSINESS OF THE SUPREME COURT
SPECIAL RULES APPLICABLE IN DEATH PENALTY CASES (Editor's Note: Rules 3311—3314 are proposed to be added and printed in regular type to enhance readability.)
Rule 3311. Review of Death Sentence; Reproduced Record; PCRA Notice; Remand of Record; Copy of Record to Governor.
(a) Direct Review.—Except as otherwise provided in this rule, an appeal from a sentence of death shall proceed in the same manner as other appeals in the Supreme Court.
(1) Lesser offenses tried with capital offenses: appeals from sentences imposed on the defendant for lesser offenses tried with the offense(s) resulting in a sentence of death shall be briefed along with the related capital appeal. See Pa.R.A.P. 702(b).
(b) Automatic Review of Sufficiency of the Evidence and Propriety of the Penalty. If the defendant fails to file a timely appeal from a sentence of death, limited automatic review shall proceed in the Supreme Court pursuant to Pa.R.A.P. 3312.
(c) Jurisdictional statement.—A jurisdictional statement is not required in appeals involving direct or automatic review of a death sentence.
(d) Reproduced Records in Cases Involving Direct or Automatic Review of a Death Sentence.
(1) Number of Copies: Four copies of the entire record shall be reproduced and filed with the Supreme Court Prothonotary, unless the Court shall by order direct the filing of a different number.
(2) Cost of Reproduction: The appellant, or, in cases where the appellant has been permitted to proceed in forma pauperis, the county where the prosecution was commenced, shall bear the cost of reproduction.
(3) Other Rules Superseded: To the extent paragraph (d) conflicts with provisions of Pa.R.A.P. 2151, 2152, 2154(a), 2155, and 2187(a), paragraph (d) controls.
(e) PCRA Notice if Death Sentence is Affirmed. When the Supreme Court affirms a sentence of death, the Prothonotary shall include in the mailing required by Pa.R.A.P. 2521(a) the following information concerning post-conviction rights:
1. The appellant has the right to seek further review by way of a petition for relief under the Post Conviction Relief Act (''PCRA''), 42 Pa.C.S. §§ 9541—9546.
2. A PCRA petition must be filed within one year of the date the judgment becomes final, except as otherwise provided in the statute. See 42 Pa.C.S. § 9545(b).
3. A judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States, or at the expiration of the time for seeking that review, if review is not sought. See 42 Pa.C.S. § 9545(b)(3).
4. If the appellant fails to file the PCRA petition within the one-year time limit, the action may be barred. See 42 Pa.C.S. § 9545(b).
5. Issues that could have been raised prior to the PCRA proceeding, but were not, may be deemed waived. See 42 Pa.C.S. § 9544(b).
6. Pursuant to Pa.R.Crim.P. 904(H), the trial judge will appoint new counsel for the purpose of PCRA review, unless:
(i) the appellant elects to proceed without counsel or to waive PCRA review, and the judge finds, after a colloquy on the record, that the appellant is competent and the appellant's election is knowing, intelligent, and voluntary;
(ii) the appellant requests continued representation by trial counsel or direct appeal counsel, and the judge finds, after a colloquy on the record, that the appellant's election constitutes a knowing, intelligent, and voluntary waiver of claims sounding in that attorney's ineffectiveness; or
(iii) the judge finds, after a colloquy on the record, that the appellant has engaged counsel who has entered, or will promptly enter, an appearance for the PCRA proceedings.
For purposes of this notice, the term ''parties'' in Pa.R.A.P. 2521(a) includes the appellant, the appellant's counsel, and the attorney for the Commonwealth.
(f) Remand of Record. Following entry of the judgment on direct or automatic review, the Supreme Court Prothonotary shall remand the record to the court of common pleas at the expiration of seven days from the later of the date of:
1. the expiration of the time for filing a petition for a writ of certiorari to the Supreme Court of the United States;
2. the denial of a petition for a writ of certiorari; or
3. remand from the Supreme Court of the United States, if that Court grants the petition for a writ of certiorari.
(g) Copy of Record to Governor if Death Sentence is Affirmed. When the Supreme Court affirms a judgment of sentence of death the Supreme Court Prothonotary shall transmit to the Governor a complete copy of the record, and provide notice of that transmission to the Secretary of Corrections, within 30 days after the date the record is ready for remand. See 42 Pa.C.S. § 9711(i).
Official Note: Pa.R.A.P. 3311 includes provisions found in former Pa.R.A.P. 1941, 2189, 2521(b), and 2572(b).
Death sentences are subject to automatic review by the Supreme Court. See 42 Pa.C.S. §§ 722(4); 9711(h); Pa.R.A.P. 3312. Automatic review is generally limited to: (1) the sufficiency of the evidence to sustain the first-degree murder conviction; (2) the sufficiency of the evidence to support at least one of the aggravating circumstances set forth in 42 Pa.C.S. § 9711(d) and found by the fact finder; and (3) review to determine if the death sentence was the product of passion, prejudice, or any other arbitrary factor. See, e.g., Commonwealth v. Mitchell, 902 A.2d 430, 444, 468 (Pa. 2006); 42 Pa.C.S. § 9711(h)(3). These issues are examined, on direct or automatic appeal, whether the appellant raises them or not.
It is imperative that the defendant and counsel recognize that other issues are generally reviewable only if preserved and if a timely notice of appeal is filed. See Pa.R.A.P. 302(a) (issues not raised in the lower court are waived); Commonwealth v. Freeman, 827 A.2d 385, 402-03 (Pa. 2003) (reflecting curtailment of the relaxed waiver doctrine in capital direct appeals); Commonwealth v. Parrish, 77 A.3d 557, 561 (Pa. 2013) (claims unassociated with automatic review are not preserved if the defendant fails to file an appeal from a death sentence).
Although Pa.R.A.P. 702(b) vests jurisdiction in the Supreme Court over appeals from sentences imposed for lesser offenses tried together with capital offenses, the appeal is not automatic. To secure review, the defendant must take all requisite steps, including the preservation of issues below and filing a timely notice of appeal encompassing the lesser offenses.
The Supreme Court Prothonotary must transmit a copy of the record to the Governor after a sentence of death is affirmed, but the death penalty statute does not assign responsibility for preparing the copy. See 42 Pa.C.S. § 9711(i). Paragraph (d) reduces the number of copies of the record ordinarily required and addresses responsibility for reproduction.
Paragraph (e) is intended to ensure that the appellant's PCRA rights are not inadvertently defaulted.
Rule 3312. Automatic Review of Death Sentence.
(a) Procedure in trial court.—Upon the entry of a judgment of sentence of death, the trial court shall direct the official court reporter and the clerk to proceed as if a timely notice of appeal will be filed by the defendant. The clerk shall promptly give written notice of the entry of the death sentence to the Administrative Office and to the Supreme Court Prothonotary. If a timely appeal is not filed from the death sentence, the clerk shall insert at the head of the list of documents required by Pa.R.A.P. 1931(c) a statement that the papers are transmitted under this rule for automatic review of a death sentence.
(b) Filing and docketing in the Supreme Court.—Upon receipt of the record in a case where a death sentence has been entered but no appeal has been filed, the Supreme Court Prothonotary shall:
1. Enter the matter upon the docket as an appeal, with the defendant indicated as the appellant and the Commonwealth indicated as the appellee.
2. File the record in the Supreme Court.
3. Provide written notice of the docket number assignment to the clerk of the trial court.
4. Provide notice to the parties and the Administrative Office of the docket number assignment and the date on which the record was filed in the Supreme Court, and provide notice to the parties of the date, if any, fixed by the Prothonotary for the filing of the brief of the appellant.
5. Except as required by Pa.R.A.P. 3311(d) (reproduced record), (f) (remand of record), and (g) (copy of record to Governor), a matter subject to automatic review under this rule shall proceed after docketing in the same manner as other appeals in the Supreme Court.
Official Note: The rule incorporates and revises provisions in former Pa.R.A.P. 1941, 2189, and 2521(b) and implements the automatic review of death sentences required by statute. See 42 Pa.C.S. §§ 722(4), 9711(h).
A notice of appeal triggers (1) the duty of the court reporter to transcribe the notes of testimony, (2) the duty of the clerk of the trial court to prepare and transmit the record, and (3) various duties of the appellate court prothonotary. The rule governs cases where no appeal is filed and automatic review is implicated.
Rule 3313. PCRA Appeals; Reproduced Record; Remand of Record; Copy of Record to Governor.
(a) General Rule.—Except as otherwise provided in this rule, an appeal from a final order disposing of a PCRA petition in a death penalty case shall proceed in the same manner as other appeals in the Supreme Court.
(b) Reproduced Record.
1. Number of Copies: Four copies of the entire record shall be reproduced and filed with the Supreme Court Prothonotary, unless the Court shall by order direct the filing of a different number.
2. Cost of Reproduction: The appellant shall bear the cost of reproduction unless the defendant is the appellant and has been permitted to proceed in forma pauperis, in which case the county where the prosecution was commenced shall bear the cost of reproduction.
3. Other Rules Superseded: To the extent paragraph (b) conflicts with provisions of Pa.R.A.P. 2151, 2152, 2154(a), 2155, and 2187(a), this paragraph (b) controls.
(c) Remand of Record.—Following entry of the judgment, the Supreme Court Prothonotary shall remand the record to the court of common pleas at the expiration of seven days from the later of the date of:
1. the expiration of the time for filing a petition for a writ of certiorari to the Supreme Court of the United States;
2. the denial of a petition for a writ of certiorari; or
3. remand from the Supreme Court of the United States, if that Court grants the petition for a writ of certiorari.
(d) Copy of Record to Governor.—Whenever a PCRA appeal results in the denial of relief to the defendant, the Supreme Court Prothonotary shall transmit to the Governor a complete copy of the record, and provide notice of that transmission to the Secretary of Corrections, within 30 days after the date the record is ready for remand. See 42 Pa.C.S. § 9711(i).
Official Note: Under 42 Pa.C.S. § 9546(d), as amended in 1988, the Supreme Court has exclusive jurisdiction over appeals from final orders in death penalty cases litigated under the PCRA. Later amendments to Section 9546(d) were suspended by the Supreme Court's order dated August 11, 1997, thus reviving the 1988 provision. See Commonwealth v. Morris, 771 A.2d 721, 743 n.1 (Pa. 2001) (Castille, J., concurring) (explaining effect of suspension).
Rule 3314. Stays of Execution.
(a) Automatic Stays.
(1) Direct Review: Execution of a sentence of death shall be stayed by the pendency of an appeal from that sentence, or by the pendency of automatic review under Pa.R.A.P. 3312.
(2) PCRA Review: Execution of a sentence of death shall be stayed by the pendency of an appeal from the disposition of a timely first petition for PCRA relief.
(b) Other Cases; Application for Stay or Review. Except in matters arising under Pa.R.A.P. 3315, an application for a stay of execution or for review of an order granting or denying a stay of execution shall be reviewable by the Supreme Court in the manner prescribed by this paragraph (b).
(1) Advance Notice to Court: Prior notice of the intention to seek a stay of execution or review of an order granting or denying a stay shall be promptly provided to the Supreme Court Prothonotary.
(2) Form of Pleading: No notice of appeal or petition for review needs to be filed in order to file the application for stay or review.
(3) Content: The application shall set forth the following:
(i) The name of the defendant.
(ii) The place where the defendant is presently confined.
(iii) The date the warrant of execution issued; the date and nature of the order that prompted the warrant; and the date execution is scheduled.
(iv) Whether any challenge to the underlying conviction is pending, and if so, in what court.
(v) Whether any other application for stay of the execution has been filed; if so, in what court; and the status of that application.
(vi) A statement briefly setting forth the procedural history.
(vii) The text of the trial court order ruling upon the stay, if any, and an account of the trial court's reasoning in granting or denying the stay.
(viii) A statement setting forth the facts alleged in support of the application.
(ix) The grounds for relief and the showing made to the trial court of entitlement to a stay under 42 Pa.C.S. § 9545(c), if applicable.
(x) A statement certifying that emergency action is required and setting forth a description of the emergency.
All relevant materials shall be attached to the application. If any of the information provided in the application changes while the application is pending, the applicant must file written notice of the change with the Supreme Court within 24 hours.
(4) Answer: The respondent shall file an answer, or a no-answer letter, according to a timeframe established by the Supreme Court Prothonotary, bearing in mind the imminence of execution.
(5) Filing and Copies: The original application and seven copies, along with a certificate of service, shall be filed with the Supreme Court Prothonotary in person or by first class, express, or priority United States Postal Service mail. If execution appears imminent, the application shall be filed in coordination with the Prothonotary in a manner, electronic or otherwise, ensuring receipt by the Court on the date of transmission. Any answer shall be filed in similar number and fashion.
(6) Service: A copy of the application shall be served in person or by first class, express, or priority United States Postal Service mail upon the respondent, the Governor, and the Secretary of Corrections. A copy of the answer or no-answer letter shall be served upon the petitioner, the Governor, and the Secretary of Corrections in a similar fashion. If execution appears imminent, the application and answer shall also be served in a manner, electronic or otherwise, ensuring receipt on the date of transmission.
(7) Entry and Notice of Judgment: The Supreme Court Prothonotary shall prepare and enter the judgment of the Supreme Court immediately following receipt of the decision. The Prothonotary shall immediately inform the parties of the decision and shall send by first class mail to the parties, the Governor, and the Secretary of Corrections a copy of the opinion, if any, or of the judgment or other order if no opinion was written, and notice of the date of the entry of the judgment. If execution appears imminent, the Prothonotary shall provide the above notice in a manner, electronic or otherwise, ensuring receipt on the date of transmission.
(8) Remand of record: Following entry of the judgment, the Supreme Court Prothonotary shall remand the record, if any, to the court of common pleas at the expiration of seven days from the later of the date of:
(i) the expiration of the time for filing a petition for a writ of certiorari to the Supreme Court of the United States;
(ii) the denial of a petition for a writ of certiorari; or
(iii) remand from the Supreme Court of the United States, if that Court grants the petition for a writ of certiorari.
Official Note: The rule revises provisions found in former Pa.R.A.P. 1704 and 3316.
Subparagraph (a)(1) recognizes that an execution warrant cannot be issued unless review of a death sentence results in affirmance. See 42 Pa.C.S. § 9711(i) (record to Governor where death sentence is upheld)); 61 Pa.C.S. § 4302 (issuance of warrant of execution). The effect of the statutory scheme is that the death sentence is stayed pending completion of direct review.
Subparagraph (a)(2) recognizes that the defendant has a right to pursue a timely first petition for PCRA relief and a right to appeal if denied relief. A stay of execution allows for the vindication of those rights when timely asserted.
Paragraph (b) addresses stays in other contexts, and derives from former Pa.R.A.P. 3316. Stay issues often arise ancillary to a second or subsequent PCRA petition; those issues are subject to 42 Pa.C.S. § 9545(c) (the petition must be pending and meet all requirements of the PCRA, and the petitioner must make a strong showing of a likelihood of success on the merits). See Commonwealth v. Morris, 822 A.2d 684, 693 (Pa. 2003) (''Morris II''). The PCRA trial court lacks jurisdiction to grant a stay ancillary to an untimely petition. See Commonwealth v. Morris, 771 A.2d 721, 734-35 & n.14, 742 (Pa. 2001) (''Morris I''); 42 Pa.C.S. § 9545(c).
Pa.R.Crim.P. 909(A)(3) provides that a stay of execution properly granted by the PCRA court remains in effect through the conclusion of the proceedings, including appeal. The Commonwealth may seek immediate review under Pa.R.A.P. 3314 to challenge whether a stay was properly granted in the serial petition context, while the defendant may seek immediate review of the denial of a stay request forwarded ancillary to a serial petition. In permitting immediate review, the rule recognizes the exigencies and that the stay issue may require resolution in advance of an appeal from the decision on the PCRA petition, or even in advance of the decision itself. In addition, there may be instances where the PCRA court denies the underlying petition, but grants a stay; the Commonwealth is potentially aggrieved only by the stay.
The Morris cases left open a question of whether scenarios outside the context of the PCRA might exist in which courts would maintain authority to grant a stay of execution, and whether the standard in Section 9545(c) of the PCRA should apply. See Morris II, 822 A.2d at 693-94. The Supreme Court has not issued a ''wholesale resolution of this residual question,'' Commonwealth v. Michael, 56 A.3d 899, 903 (Pa. 2012) (per curiam), but it has addressed discrete circumstances. See id., 56 A.3d at 903-04 (denying deemed applications for relief seeking review of denial of stay of execution requested in connection with clemency process; lower courts lacked authority to issue a stay under Section 9545(c)); Commonwealth v. Banks, 943 A.2d 230, 234-35 n.7 (Pa. 2007) (per curiam) (noting the absence of a rules-based process for determining a motion to stay execution based upon a claim of incompetency to be executed).
In the wake of Banks, the Supreme Court has adopted specific rules addressing stay of execution issues arising in conjunction with execution competency claims. See Pa.R.Crim.P. 850—862; Pa.R.A.P. 3315.
The rule does not expand or diminish any inherent powers of the Supreme Court to grant a stay of execution. See Morris II, 822 A.2d at 691.
Subparagraph (b)(2) recognizes that stay of execution issues require streamlined treatment falling outside the appeal or petition for review process.
[SUPERSEDEAS AND STAYS] Rule 3315. [Review of Stay Orders of Appellate Courts.] (Renumbered).
[Where the Superior Court or the Commonwealth Court in the exercise of its appellate jurisdiction has entered an order under Chapter 17 (effect of appeals; supersedeas and stays), such order may be further reviewed by any justice of the Supreme Court in the manner prescribed by Chapter 17 with respect to appellate review of supersedeas and stay determinations of lower courts.
Official Note: After a party has applied for a stay, etc., in the trial court, and a further application has been acted on by the Superior Court or the Commonwealth Court, or by a judge thereof, a further application may be made under this rule to the Supreme Court or to a justice thereof. Under the prior practice a petition for allowance of appeal was required in the Supreme Court under Rule 1702(b) in order to maintain the validity of the Supreme Court action on the stay, etc. Rule 1702(c) (Supreme Court review of appellate court supersedeas and stay determinations) now provides that no appeal or petition need be filed to support jurisdiction under this rule. However, this rule does not invite routine reapplications in the Supreme Court, but only clarifies the procedure when the Court exercises its inherent supervisory powers in cases of egregious error below. See 42 Pa.C.S. § 726 (extraordinary jurisdiction).
Explanatory Comment—1979 The stay and supersedeas procedure in the Supreme Court is clarified in King's Bench matters and in cases where the Superior Court or the Commonwealth Court (in its appellate capacity) has acted on a stay or supersedeas application.]
Former Pa.R.A.P. 3315 (Review of Stay Orders of Appellate Courts) has been renumbered Pa.R.A.P. 3319 to accommodate the consolidation of the special rules relating to capital cases.
(Editor's Note: Rule 3315 is proposed to be added and printed in regular type to enhance readability.)
Rule 3315. Review of Orders Determining Competency to be Executed.
(a) General Rule.—A trial court's determination of competency to be executed, issued under Part C of Chapter 8 of the Rules of Criminal Procedure, is subject to review by application filed in the Supreme Court in the manner prescribed by this rule.
(1) Advance Notice to Court: Prior notice of the intention to file the application for review shall be provided to the Supreme Court Prothonotary no later than two days before a filing under subparagraph (b)(1) (execution warrant pending) and no later than five days before a filing under subparagraph (b)(2) (no execution warrant pending).
(b) Timing; Answer.
(1) Execution Warrant Active (Expedited Review): An application for review of an order entered under Pa.R.Crim.P. 857(E)(1), denying a challenge to a certification of competency to be executed and denying a stay of execution, shall be filed in the Supreme Court within 10 days of the entry of the order.
(i) The Commonwealth shall file an answer within seven days of the filing of the application, unless the Supreme Court Prothonotary directs that the answer be filed sooner.
(2) No Active Execution Warrant: An application for review of an order entered under Pa.R.Crim.P. 858(E)(1), 859(E)(1), or 861(B), resolving the issue of competency to be executed where no execution warrant is pending or a pending warrant has been stayed, shall be filed within 21 days of the entry of the order.
(i) The respondent shall file an answer within 14 days of the filing of the application.
(c) Form of Pleading.—No notice of appeal or separate petition for review needs to be filed in order to file an application under this rule.
(d) Content.—The application shall set forth the following:
1. The name of the defendant.
2. The place where the defendant is presently confined.
3. If a warrant of execution is pending, the date the warrant issued and the date execution is scheduled.
4. Whether any challenge to the underlying conviction is pending, and if so, in what court.
5. If a warrant of execution is pending, whether any other application for a stay of the execution has been filed; if so, in what court; and the status of that application.
6. A statement briefly setting forth the procedural history.
7. The text of the order below, and an account of the lower court's reasoning in support of the order.
8. A statement setting forth the facts alleged in support of the application, including citations to the record.
9. A concise legal argument on the question of competency to be executed.
All relevant materials shall be attached to the application. If any of the information provided in the application changes while the application is pending, the applicant must file written notice of the change with the Supreme Court within 24 hours.
(e) Filing; Copies.—The original application and seven copies, along with a certificate of service, shall be filed with the Supreme Court Prothonotary in person or by first class, express, or priority United States Postal Service mail. The answer to the petition shall be filed in similar number and fashion. If an execution warrant is pending, the application and answer shall also be filed in coordination with the Supreme Court Prothonotary in a manner, electronic or otherwise, ensuring receipt by the Court on the date of transmission.
(f) Service.—A copy of the application for review shall be served in person or by first class, express, or priority United States Postal Service mail upon the respondent, the Governor, and the Secretary of Corrections. The answer to the petition shall be served upon the petitioner, the Governor, and the Secretary of Corrections in similar fashion. If an execution warrant is pending, the application and answer shall also be served in a manner, electronic or otherwise, ensuring receipt on the date of transmission.
(g) Entry and Notice of Judgment.—The Supreme Court Prothonotary shall prepare and enter the judgment of the Court immediately following receipt of the decision. The Prothonotary shall immediately inform the parties of the decision and shall send by first class mail to the parties, the Governor, and the Secretary of Corrections a copy of the opinion, or order if no opinion was issued, and notice of the date of the entry of the judgment. In addition, if an execution warrant is pending, the Prothonotary shall provide the parties, the Governor, and the Secretary of Corrections with a copy of the opinion or order of judgment in a manner, electronic or otherwise, ensuring receipt on the date of transmission.
(h) Remand of record.—The Supreme Court Prothonotary shall remand the record to the court of common pleas at the expiration of seven days from the later of the date of:
1. the expiration of the time for filing a petition for a writ of certiorari to the Supreme Court of the United States;
2. the denial of a petition for a writ of certiorari; or
3. remand from the Supreme Court of the United States, if that Court grants the petition for a writ of certiorari.
The Prothonotary shall contemporaneously provide a copy of the final order and notice of the remand and transmittal to the parties, the Governor and the Secretary of Corrections.
Official Note: The rule was adopted in conjunction with the rules of criminal procedure addressing execution competency. See Pa.R.Crim.P. 850—862.
Subparagraph (b)(1) governs review where the defendant is found competent below and execution appears imminent. Expedition on appeal is required.
Subparagraph (b)(2) governs review of other competency orders, where a stay of execution is in place or an execution warrant has expired. Some expedition is still required to ensure that the competency determination is not stale and the stay of execution is not excessive.
When competency is litigated in the trial court, the judge, the trial court clerk, the parties' counsel, and the Department of Corrections are to ''maintain lines of communication to ensure the prompt filing and contemporaneous service of all motions, certifications, responses, answers and other pleadings.'' See Pa.R.Crim.P. 852(B)(4). The Supreme Court Prothonotary is also required to monitor capital cases and, when competency proceedings are initiated, to ''establish communications with the parties and relevant state and federal courts to facilitate the Supreme Court's timely resolution of issues relating to the execution process.'' See Pa.R.Crim.P. 853(C). Pa.R.A.P. 3315 likewise recognizes the exigencies and requires prompt filing and service and, in cases where execution is imminent, requires measures to ensure contemporaneous service.
Paragraph (c) recognizes that execution competency issues require streamlined treatment outside the normal appeal or petition for review process.
Rule 3316. [Review of Stay of Execution Orders in Capital Cases.] (Rescinded).
[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 Pa.R.A.P. 1704.
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.]
(Former Pa.R.A.P. 3316 (Review of Execution Orders in Capital Cases) was rescinded by Order of (DATE). The subject matter of former Pa.R.A.P. 3316 is now part of Pa.R.A.P. 3314.)
Rule 3316. Miscellaneous.
(a) Other Cases.—Death penalty cases involving other issues, such as appeals from collateral orders or other interlocutory appeals, shall proceed in the same manner as other matters in the Supreme Court.
SUPERSEDEAS AND STAYS Rule 3319. Review of Stay Orders of Appellate Courts.
Where the Superior Court or the Commonwealth Court in the exercise of its appellate jurisdiction has entered an order under Chapter 17 (effect of appeals; supersedeas, and stays), such order may be further reviewed by any justice of the Supreme Court in the manner prescribed by Chapter 17 with respect to appellate review of supersedeas and stay determinations of lower courts.
Official Note: After a party has applied for a stay, etc., in the trial court, and a further application has been acted on by the Superior Court or the Commonwealth Court, or by a judge thereof, a further application may be made under this rule to the Supreme Court or to a justice thereof. Under the prior practice, a petition for allowance of appeal was required in the Supreme Court under Pa.R.A.P. 1702(b) in order to maintain the validity of the Supreme Court action on the stay, etc. Pa.R.A.P. 1702(c) now provides that no appeal or petition need be filed to support jurisdiction under this rule. However, this rule does not invite routine reapplications in the Supreme Court, but only clarifies the procedure when the Court exercises its inherent supervisory powers in cases of egregious error below. See 42 Pa.C.S. § 726 (extraordinary jurisdiction).
The rule was formerly Pa.R.A.P. 3315, but has been renumbered to accommodate the consolidation of the rules relating to capital cases. See Pa.R.A.P. 3311—3316.
Proposed Adoption of new Pa.Rs.Crim.P. 850, 851, 852, 853, 854, 855, 856, 857, 858, 859, 860, 861, 862, Amendment of Pa.Rs.Crim.P. 113, 119, 909 and Revision of the Comments to Pa.Rs.Crim.P. 120, 800, and 904
Proposed Adoption of Pa.Rs.A.P. 3311, 3312, 3314, 3315, 3316, 3319, Rescission of Pa.R.A.P. 1704, 1941, 3315, 3316, Amendment of Pa.R.A.P. 702, 901, 909, 1501, 1702, 1761, 2189, 2521, 2572, 3313 and Revision of the Official Notes to Pa.R.A.P. 2151, 2152, 2154, 2155, and 2187
Determination of Competency to be Executed The Supreme Court of Pennsylvania is considering the adoption of new Pa.Rs.Crim.P. 850—862 that would establish the procedures for determining a defendant's competency to be executed. The Court is also considering the adoption of new Pa.R.A.P. 3311—3316, and 3319 and the rescission of Pa.R.A.P. 1704, 1941, 3315, 3316, that would establish the procedures for seeking review of a competency determination made under the proposed new Criminal Rules as well as a consolidation of the procedures for the review of capital matters generally. The Court also is considering correlative changes to Pa.Rs.Crim.P. 113, 119, 120, 800, 904 and 909 and to Rules of Appellate Court Procedure 702, 901, 909, 1501, 1702, 1761, 2151, 2152, 2154, 2155, 2187, 2189, 2521, and 2572.
I. Background
Ford v. Wainwright, 477 U.S. 399 (1986) held that, pursuant to the Eighth Amendment to the United States Constitution, a defendant is incompetent to be executed when he or she suffers from a mental illness preventing a factual awareness and a rational understanding of the punishment to be imposed and the reasons for its imposition. In Panetti v. Quarterman, 551 U.S. 930 (2007), the United States Supreme Court held that, if the defendant makes a substantial threshold showing of incompetency, due process requires a judicial procedure to resolve the issue. Panetti did not set forth ''precise limits'' of the process required, but left to the states the procedures for challenging competency to be executed. See also Commonwealth v. Banks, 29 A.3d 1129, 1144 (Pa. 2011).
Pennsylvania does not have specific procedures in either statute or rule for the determination of competency to be executed. The current proposal originated in this Court's opinion in Commonwealth v. Banks, 943 A.2d 230 (2007). One of the issues raised in Banks regarded the procedures for an examination by a Commonwealth expert of the defendant's mental condition. As the Court observed in a footnote:
There is not currently in place a specific procedure for the timely handling of Ford v. Wainwright claims—either under the PCRA or other legislation, or under this Court's rules. We had hoped that this case might be the proper vehicle for developing such a procedure, but the warrant for appellee's execution has expired and the parties do not address the propriety of the procedure employed here. Therefore, we will refer the matter to the Appellate Court Procedural Rules Committee and the Criminal Procedural Rules Committee to recommend a framework for the filing and disposition of motions for stay of execution based on a defendant's purported incompetence to be executed.As directed by the Court, the Committees jointly developed a proposal that was published for comment on May 8, 2010.1
II. Criminal Rules
The 2010 proposal deemed a Ford claim ripe whenever an execution warrant issued: counsel would be appointed if the defendant was unrepresented and counsel's motion challenging competency would initiate the Ford claim. The proposal envisioned that, if the defendant made a substantial threshold showing of incompetency, requiring a hearing, a 210-day stay of execution would follow.
Following submission of the proposal, the Court has concluded that there is no point in entertaining Ford execution competency claims whenever an execution warrant issues; absent a valid waiver of further review, for example, a warrant issued after direct appeal will be stayed to allow for PCRA review. Moreover, a defendant's mental condition can improve or deteriorate over time. The Court believes it is better to defer Ford claims until there is a reasonable likelihood that execution is imminent.
The Court also has reservations with the lengthy stay of execution, which could be secured by untested expert opinions and supporting documents, as well as the absence of a mechanism to resolve a meritless Ford claim before an execution warrant expires.
The Court therefore has revised the proposal to allow for (1) a more timely identification of ripe Ford claims, and (2) the prospect of resolving cases posing no colorable Ford issue before expiration of an execution warrant. A new Part C to Chapter 8 of the Rules of Criminal Procedure, containing proposed new Rules 850—862, would be added to provide these procedures. The revised proposal envisions a competency certification by the Secretary of Corrections (''the Secretary''), triggered by the Commonwealth filing a certification motion.
The rules in Part C would recognize that if there is a reasonable likelihood that execution is imminent, the Commonwealth need not wait until the issuance of the execution warrant before beginning the process of identifying a colorable Ford claim. To avail itself of an accelerated determination of the preliminary issue of entitlement to a hearing, the Commonwealth would be required under new Rule 855 to track and identify cases posing a reasonable likelihood that execution is imminent (e.g., due to exhaustion or waiver of direct and collateral avenues of challenge), and act in advance of an execution warrant. To facilitate the Department of Corrections' role, the rules require serving the Secretary with copies of all motions, pleadings, and orders. See proposed Rule 852(8). Proposed Rule 856 recognizes that the Secretary has access to qualified staff to monitor mental health issues and is positioned to produce an expert-supported certification in short order.
If the Secretary certifies that the prisoner is competent, the proposed rules make a trial court and appellate court level fast-track available to the prisoner, governed initially by Rule 857. If the prisoner makes the required substantial threshold showing of incompetency, a stay of execution issues and a hearing governed by Rules 860 and 861 will be held. The certification protocol should ensure that colorable competency issues are timely identified in all capital cases (and attendant stays of execution and hearings afforded), while meritless claims are identified and determined without unnecessary delay.
III. Appellate Rules
Complementary to the procedures applicable in the trial court, a related revision of the Rules of Appellate Procedure would establish the procedures on appeal. The 2010 proposal had recommended that the Petition for Review (''PFR'') process govern execution competency appeals. Following submissions, the Court has determined it would be better to devise a procedure using an application as the initiating document. It would thus operate outside the current PFR process, as well as the Notice of Appeal process. This process is set forth in proposed new Pa.R.A.P. 3315.
In considering the appropriate placement of this rule, the Court noted that, over the years, the rules relating to capital matters have become scattered across the various chapters of appellate procedure and were in need of clarification and updating. Rather than address the competency review procedures in isolation, the Court is proposing to update, align, and consolidate all appellate rules governing capital review, and it would enact a new, self-contained rule governing execution competency review.
The placement of the new rules is in Chapter 33 (Business of the Supreme Court). The new rules related to capital review, proposed Rules 3311—3316,2 would be placed after Rule 3309 (Applications for Extraordinary Relief) and would appear under a heading, ''SPECIAL RULES APPLICABLE IN DEATH PENALTY CASES.''
In addition, the new rules would address the interplay between automatic review of a death sentence and the more robust review available upon a direct appeal. Pa.R.A.P. 3311 would explain the two avenues of review, and it would provide that special procedures attending automatic review under Pa.R.A.P. 3312 are triggered only if no appeal is taken, and consolidate all other procedural rules relevant to both direct and automatic review. Pa.R.A.P. 3313 would explicitly address, for the first time, capital PCRA appeals, collecting those of the existing special rules that apply to such appeals. Pa.R.A.P. 3314 would consolidate and update the various rules and commentary addressing stays of execution, most importantly to state that execution is stayed not only during automatic review, as Pa.R.A.P. 1761 now states, but also during a direct appeal and an appeal involving a timely, first PCRA petition. The Court intends this approach to narrow contested issues to stays ancillary to serial PCRA petitions or extra-PCRA matters. The approach also aligns better with 42 Pa.C.S. § 9545(c)(2), the statutory stay of execution standard specifically governing serial petition cases.
IV. Additional Questions
While considerable study and analysis has already gone into the development of these proposed procedures, at least one Justice is interested in the experienced opinions of the bench and bar with regard to the practicalities of the proposal. Particularly, at least one Justice is interested in responses to the questions listed below.
(1) Are the timelines set forth in the proposals workable in actual practice in their current form?
(2) What should be the consequences of failure to adhere strictly to the timelines? For example, what should happen when the Secretary fails to certify within ten days that the defendant is competent or files a competency report late? What should be consequences if the defendant fails to file a Rule 857 motion within seven days—would he or she be procedurally barred from challenging the Secretary's competency determination?
(3) What mechanism, if any, should the rules provide for the appointment of an expert, including funding, to evaluate the defendant for his or her own purposes?
(4) Should the rules mandate specific requirements that counsel must take immediately upon being appointed to ensure a timely evaluation and preparation of the case. If so, what should those steps be and in what priority?
(5) Should the rules provide for discovery after the Secretary certifies that the defendant is competent or incompetent? If so, what would be appropriate the time frames for such discovery?
(6) Should the rules provide a definition of what constitutes a substantial threshold showing of incompetency or delineate factors or considerations are relevant to that determination? If so, what should they be?
[Pa.B. Doc. No. 17-1329. Filed for public inspection August 11, 2017, 9:00 a.m.] _______
1 See 40 Pa.B. 2397 (May 8, 2010). The Reports also were posted on the Court's web page and published in the Pennsylvania Reporter, the Legal Intelligencer, and the Pittsburgh Legal Journal.
2 Current Pa.R.A.P. 3315 (Review of Stay Orders of Appellate Courts) would be renumbered as Pa.R.A.P. 3319.
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