THE COURTS
PART I. RULES OF APPELLATE PROCEDURE
[ 210 PA. CODE CHS. 7, 9, 15, 17, 19,
21, 25 AND 33 ]
Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CHS. 1, 8 AND 9 ]
Proposed Adoption of New Pa.Rs.Crim.P. 850—862, Amendment of Pa.Rs.Crim.P. 113, 119 and 909 and Revision of the Comments to Pa.Rs.Crim.P. 120, 800 and 904; Proposed Adoption of Pa.R.A.P. 3311—3316 and 3319, Rescission of Pa.R.A.P. 1704, 1941, 3315 and 3316, Amendment of Pa.Rs.A.P. 702, 901, 909, 1501, 1702, 1761, 2189, 2521 and 2572 and Revision of the Official Notes to Pa.Rs.A.P. 2151, 2152, 2154, 2155 and 2187
[47 Pa.B. 4633]
[Saturday, August 12, 2017]The Supreme Court of Pennsylvania is considering the adoption of new Pa.Rs.Crim.P. 850—862, amendment of Pa.Rs.Crim.P. 113, 119, 909, and revision of the Comments to Pa.Rs.Crim.P. 120, 800, and 904, and the adoption of Pa.R.A.P. 3311—3316, and 3319, the rescission of Pa.R.A.P. 1704, 1941, 3315, 3316, the amendment of Pa.R.A.P. 702, 901, 909, 1501, 1702, 1761, 2189, 2521, 2572, 3313, and the revision of the Official Notes to Pa.R.A.P. 2151, 2152, 2154, 2155, and 2187 for the reasons set forth in the accompanying explanatory report. This would result in the replacement of Pa.R.A.P. 3315 and 3316 with entirely new rules, and it would have the effect of consolidating all of the rules for capital appeals into the chapter dedicated to Supreme Court procedure. These amendments do not reflect proposed revisions to the Rules of Appellate Procedure that have been published for consideration to address other matters that the Appellate Court Procedural Rules Committee is currently considering. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to adoption by the Supreme Court.
Additions to the text of the proposal are bolded; deletions to the text are bolded and bracketed.
The Court invites all interested persons to submit comments, suggestions, or objections in writing to:
Daniel Durst, Chief Rules Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
Harrisburg, PA 17106-2635
fax: (717) 231-9521
e-mail: rulescommittees@pacourts.usAll communications in reference to the proposal should be received by no later than Thursday, October 12, 2017. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART A. Business of the Courts Rule 113. Criminal Case File and Docket Entries.
* * * * *
(C) The docket entries shall include at a minimum the following information:
(1) the defendant's name;
(2) the names and addresses of all attorneys who have appeared or entered an appearance, the date of the entry of appearance, [and] the date of any withdrawal of appearance, and a notation when an attorney is appointed or enters an appearance pursuant to Rule 854;
* * * * *
Rule 119. Use of Two-Way Simultaneous Audio-Visual Communication in Criminal Proceedings.
(A) The court or issuing authority may use two-way simultaneous audio-visual communication at any criminal proceeding except:
* * * * *
(6) parole, probation, and intermediate punishment revocation hearings; [and]
(7) proceedings pursuant to Part C of Chapter 8 (Procedures for Determining and Challenging the Defendant's Competency to be Executed) when the defendant's presence is mandated by rule; and
[(7)] (8) any proceeding in which the defendant has a constitutional or statutory right to be physically present.
* * * * *
Comment This rule was adopted in 2003 to make it clear that unless the case comes within one of the exceptions in paragraph (A), the court or issuing authority may use two-way simultaneous audio-visual communication in any criminal proceeding. Two-way simultaneous audio-visual communication is a type of advanced communication technology as defined in Rule 103.
[Nothing] Except in cases in which the defendant's presence is mandated pursuant to Part C of Chapter 8, nothing in this rule is intended to limit any right of a defendant to waive his or her presence at a criminal proceeding in the same manner as the defendant may waive other rights. See, e.g., Rule 602 Comment.
In proceedings under Part C of Chapter 8, the defendant is required to appear in person for examinations and hearings conducted under Rules 861 and 862. The defendant is not required to appear for pre-hearing conferences.
Negotiated guilty pleas when the defendant has agreed to the sentence, probation revocation hearings, and hearings held pursuant to Rule 908(C) and the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 et seq., are examples of hearings in which the defendant's consent to proceed using two-way simultaneous audio-visual communication would be required. Hearings on post-sentence motions, bail hearings, bench warrant hearings, extradition hearings, and Gagnon I hearings are examples of proceedings that may be conducted using two-way simultaneous audio-visual communication without the defendant's consent. It is expected the court or issuing authority would conduct a colloquy for the defendant's consent when the defendant's constitutional right to be physically present is implicated.
* * * * *
The paragraph [(A)(5)] (A)(6) reference to revocation hearings addresses Gagnon II-type probation (Gagnon v. Scarpelli, 411 U.S. 778 (1973)) and parole (Morrissey v. Brewer, 408 U.S. 471 (1972)) revocation hearings, and is not intended to prohibit the use of two-way simultaneous audio-visual communication in hearings to determine probable cause (Gagnon I).
* * * * *
PART B. Counsel Rule 120. Attorneys—Appearances and Withdrawals.
* * * * *
Comment * * * * *
Under paragraph (B)(2), counsel must file a motion to withdraw in all cases, and counsel's obligation to represent the defendant, whether as retained or appointed counsel, remains until leave to withdraw is granted by the court. See, e.g., Commonwealth v. Librizzi, 810 A.2d 692 (Pa. Super. [Ct.] 2002). The court must make a determination of the status of a case before permitting counsel to withdraw. Although there are many factors considered by the court in determining whether there is good cause to permit the withdrawal of counsel, when granting leave, the court should determine whether new counsel will be stepping in or the defendant is proceeding without counsel, and that the change in attorneys will not delay the proceedings or prejudice the defendant, particularly concerning time limits. In addition, case law suggests other factors the court should consider, such as whether (1) the defendant has failed to meet his or her financial obligations to pay for the attorney's services and (2) there is a written contractual agreement between counsel and the defendant terminating representation at a specified stage in the proceedings such as sentencing. See, e.g., Commonwealth v. Roman[. Appeal of Zaiser], 549 A.2d 1320 (Pa. Super. [Ct.] 1988).
If a post-sentence motion is filed, trial counsel would normally be expected to stay in the case until disposition of the motion under the post-sentence procedures adopted in 1993. See Rules 704 and 720. Traditionally, trial counsel stayed in a case through post-verdict motions and sentencing.
For the filing and service procedures, see Rules 575-576.
For waiver of counsel, see Rule 121.
For the procedures for appointment of counsel, see Rule 122.
See Rule 854(B) that requires an attorney who has been retained to represent a defendant in proceedings under Part C of Chapter 8 to file a written entry of appearance.
See Rule 904(A) that requires an attorney who has been retained to represent a defendant during post-conviction collateral proceedings to file a written entry of appearance.
* * * * *
CHAPTER 8. SPECIAL RULES FOR CASES IN WHICH DEATH SENTENCE IS AUTHORIZED
PART A. Guilt and Penalty Determination Procedures Rule 800. Applicability of Part A.
* * * * *
Comment The 1990 amendment to this rule made it clear that Part A of Chapter 8 applies to both the guilt determination and sentencing phases of cases in which the death penalty is authorized. The chapter was amended in 2013 by the addition of Part B providing special procedures for seeking to preclude imposition of a sentence of death by reason of the defendant's mental retardation. The chapter was amended in (DATE) by the addition of Part C providing procedures for determining and challenging the defendant's competency to be executed.
* * * * *
(Editor's Note: Part C is proposed to be added and printed in regular type to enhance readability.)
PART C. PROCEDURES FOR DETERMINING AND CHALLENGING THE DEFENDANT'S COMPETENCY TO BE EXECUTED Explanatory Comment to Part C—(DATE)
The rules in Part C provide the procedures for resolving issues of competency to be executed.
After a death sentence is affirmed, the Supreme Court transmits a copy of the record to the Governor. 42 Pa.C.S. § 9711(i). Within 90 days of receipt, unless a pardon or commutation has issued, the Governor issues a warrant of execution directed to the Secretary of Corrections, fixing a date of execution within 60 days. 61 Pa.C.S. § 4302(a)(1), (b). If a reprieve or judicial stay causes the warrant period to lapse, the Governor reissues a warrant within 30 days after termination of the reprieve or stay, again fixing a date for execution within 60 days. Id. § 4302(a)(2). Execution warrants typically issue after a defendant is denied relief on direct appeal, on a collateral attack arising under the Post Conviction Relief Act (''PCRA''), 42 Pa.C.S. §§ 9541—9546, on federal habeas corpus review, and after the expiration of any ensuing stay or reprieve.
Pursuant to the Eighth Amendment to the United States Constitution, the Commonwealth cannot execute a defendant who does not meet minimal competency standards. See Ford v. Wainwright, 477 U.S. 399, 409-10 (1986). A defendant is incompetent to be executed if 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. See Panetti v. Quarterman, 551 U.S. 930, 958-59 (2007); Commonwealth v. Banks, 29 A.3d 1129, 1144 (Pa. 2011) (''Banks II''). If the defendant makes a substantial threshold showing of incompetency, due process requires a judicial procedure to resolve the issue. See Panetti, 551 U.S. at 934-35, 949-50. Panetti did not set forth ''precise limits'' of the process required; at a minimum, due process requires a fair hearing, an opportunity to be heard in a procedure that may be far less formal than a trial, and an opportunity to present argument and submit evidence, including expert mental health evidence. See id. at 949—51 (discussing Ford, 477 U.S. at 424, 426-27 (Powell, J., concurring and concurring in judgment)).
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. Thus, it is better to defer Ford claims until there is a reasonable likelihood that execution is imminent; in the ordinary case, this means deferral at least until state and federal avenues of collateral review as of right have been exhausted or waived. See Panetti, 551 U.S. at 946 (noting the ''empty formality in requiring prisoners to file unripe Ford claims'').
In 2007, the Supreme Court, presented with a ripe Ford claim, noted the absence of existing procedures for the timely consideration of the claim. Commonwealth v. Banks, 943 A.2d 230, 234-35 n.7 (Pa. 2007) (Banks I). The Court directed its criminal and appellate procedural rules committees to consider a protocol. The rules in Part C establish those procedures applicable in the lower court, and a related revision of the Rules of Appellate Procedure establishes the procedures on appeal. See Pa.R.A.P. 3315 (Review of Orders Determining Competency to be Executed).
The committees' 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 committees also believed it was unrealistic to attempt to resolve a Ford claim within the 60-day term of an execution warrant. The proposal further envisioned that, if the defendant made a substantial threshold showing of incompetency, requiring a hearing, a 210-day stay of execution would follow.
The Court had 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 expired. The Court was also concerned with the prospect of serial challenges and stays, and the resulting effect upon executive administration of the scheme of capital punishment designed by the General Assembly.
Accordingly, in May 2014, the Court transmitted to the Governor and legislative leaders a status report on these potential procedural developments. The Court outlined its concerns and advised that, before implementing procedures affecting administration of capital punishment, it was inviting the input of the executive and legislative branches. The Court received no response.
The Court then revised the committees' proposals 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. The rules in Part C recognize that if there is a reasonable likelihood that execution is imminent, there is no reason to await the execution warrant before beginning the process of identifying a colorable Ford claim. The Commonwealth knows or should know the status of the case, including when each stage of review becomes final and a reprieve or stay expires, and may project when a warrant will issue and the likelihood execution will proceed. The Department of Corrections likewise can track the case and can monitor the defendant's mental condition in anticipation of an execution warrant.
The rules thus establish a procedure tied to the expectation that the prosecutor will monitor the case and the Department will monitor the defendant. To secure the accelerated consideration necessary to timely resolve the preliminary issue of entitlement to a hearing, the rules require the prosecutor to determine, in advance of the issuance of a warrant, when there is a reasonable likelihood both that a warrant will issue and execution will occur. In such cases, the prosecutor must then seek a competency certification from the Secretary of Corrections. If the Secretary certifies that the defendant is competent, the rules establish an accelerated procedure to timely resolve any challenge to the certification. If the Secretary does not certify that the defendant is competent, a stay will issue and the rules provide the procedures for an expeditious determination of any ensuing challenge, but do not contemplate a final decision before the warrant expires.
In further recognition of the time constraints when execution is imminent, the rules require that Ford claims be litigated in the judicial district where the defendant is confined. Centralization also facilitates the defendant's presence if a hearing is required, and should create greater expertise in those judicial districts passing upon Ford claims.
The new criminal and appellate rules addressing competency require coordination and cooperation among counsel, the lower court, the lower court clerk, the Department of Corrections, and the Prothonotary of the Supreme Court to facilitate the timely litigation of Ford claims, including expedited review.
PART C(1). Preliminary provisions Rule 850. Scope.
The rules in Part C provide the procedures for determining a defendant's competency to be executed.
Rule 851. Definitions.
The following words and phrases, as used in Part C, shall have the following meanings:
(1) ''Competency'' means competency to be executed.
(2) ''Department'' means the Department of Corrections.
(3) ''Judge'' includes the judge of the court of common pleas in the county in which the defendant was convicted and sentenced, or the judge in the judicial district in which a competency challenge is being litigated.
(4) ''Mental Health Expert'' includes a psychiatrist, a licensed psychologist, a physician, or any other expert in the field of mental health who will be of substantial value in the determination of the defendant's competency to be executed.
(5) ''Prosecutor'' means the Attorney General or the county district attorney responsible for the prosecution of the defendant.
(6) ''Prothonotary'' means the Prothonotary of the Supreme Court of Pennsylvania.
(7) ''Secretary'' means the Secretary of Corrections.
Rule 852. General Provisions.
(A) Place of Filing
Unless otherwise directed by the judge, all motions, certifications, responses, answers and other filings shall be filed with the clerk of courts in the judicial district in which the defendant is presently confined.
(B) Service; Time of Essence
(1) Copies of motions, responses, answers and other pleadings shall be promptly served on the opposing party's counsel, the Department, the Governor, and the Prothonotary. Because competency certification motions under Rule 855 precede the appointment of counsel, the prosecutor shall promptly serve a copy of any Rule 855 motion upon the defendant, the defendant's most recent attorney of record, the Department, the Governor, and the Prothonotary, and shall promptly serve any attorney subsequently retained or appointed to represent the defendant once the identity of counsel is known.
(2) The Secretary shall provide copies of any competency certification and supporting mental health expert report to the attorney for the Commonwealth, the defendant's attorney, the Governor, and the Prothonotary.
(3) All motions, certifications, responses, answers and other pleadings shall include a certificate of service.
(4) The judge, the clerk, the parties' counsel, and the Department shall maintain lines of communication to ensure the prompt filing and contemporaneous service of all motions, certifications, responses, answers and other pleadings.
(C) Verification
If an initial motion filed under Rules 857, 858, 859 or 862 sets forth facts not already of record, the motion shall be verified by the sworn affidavit of some person having knowledge of the facts or by the unsworn written statement of such a person that the facts are verified subject to the penalties for unsworn falsification to authorities. See 18 Pa.C.S. § 4904.
(D) Second or Subsequent Competency Determination
If a prior competency determination has been made under Part C, any motion seeking a contrary determination shall allege with specificity a material change of circumstances sufficient to support the assertion that the defendant's mental condition has substantially deteriorated or improved.
(E) Effect of Stay Issued by Another Court
If a warrant of execution is stayed by the order of a judge presiding over a collateral proceeding in state or federal court, that order shall stay proceedings under Part C, and the obligations of the defendant's attorney will be terminated once the warrant of execution expires.
(F) Clerk of Courts; Docketing, Notice, and Transmittal
(1) The clerk of courts immediately shall time stamp, docket and transmit to the assigned judge all motions, certifications, responses, answers, other pleadings, and entries of appearance. If the judge is unavailable, the clerk shall transmit the material to the president judge, or the president judge's designee, who promptly shall assign and transmit the material to another judge.
(2) The clerk of courts must comply with the notice and docketing requirements of Rule 114 with regard to any order entered.
(3) The clerk of courts immediately shall serve a copy of any order entered by the judge upon the attorney for the Commonwealth, the defendant's attorney, the Department, the Governor, and the Prothonotary. A copy of any order appointing counsel under Rule 854(A) shall also be served upon the defendant and the defendant's most recent counsel of record.
Comment Given the time constraints when execution is imminent, the time periods in Part C generally are measured from the point of filing, rather than service. Rule 852(B)(4) is intended to ensure that service of motions, certifications, pleadings, and orders will be contemporaneous with filings. It is imperative that the judge, the clerk, the parties, and the Department take measures, including electronic transmission, to ensure prompt filing and contemporaneous service.
Service upon the Prothonotary assists in discharging the Prothonotary's duty to monitor capital cases. See Rule 853.
''Collateral proceeding'' as used in paragraph (E) includes proceedings under the PCRA and federal habeas corpus review.
Rule 853. Supreme Court Prothonotary.
(A) The Prothonotary shall monitor all Pennsylvania capital cases pending on collateral review in state and federal court, and provide the Supreme Court with status reports as necessary or directed.
(B) Whenever the Commonwealth files a competency certification motion under Rule 855, or a warrant of execution is issued in the absence of a certification motion, the Prothonotary shall 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.
Comment This rule formalizes the role of the Prothonotary in monitoring capital cases and is in aid of the Supreme Court's jurisdiction over capital appeals, including applications to review competency determinations. See Pa.R.A.P. 3315. The Prothonotary's monitoring role also protects the right to a timely review of a competency determination.
Rule 854. Counsel; In Forma Pauperis.
(A) Appointment of Counsel
Within five days of the Commonwealth's filing of a competency certification motion under Rule 855, or within five days of the issuance of a warrant of execution if no such motion has been filed, the judge shall appoint an attorney to represent the defendant for purposes of proceedings under Part C, unless an attorney has already entered an appearance to represent the defendant. The appointment order shall indicate the attorney's name, address, and phone number, and shall include as an attachment any filings in the matter. In instances where a warrant has been issued but no certification motion has been filed, the prosecutor shall apprise the clerk of courts of the issuance of the warrant.
(B) Retained Counsel
When an attorney is retained, the attorney shall promptly file a written entry of appearance with the clerk of courts, and shall serve a copy on the defendant, the attorney for the Commonwealth, the Department, and the Prothonotary. The entry of appearance shall include the attorney's address, phone number, attorney identification number, and a statement that the attorney meets the criteria set forth in Rule 801 (Qualifications for Defense Counsel in Capital Cases).
(C) Qualifications
No attorney may be appointed or enter an appearance without meeting the criteria set forth in Rule 801.
(D) Duration of Obligation
The attorney's representation under Part C shall continue until:
(1) a stay of execution or reprieve is granted for reasons other than to determine competency and causes the execution warrant to expire;
(2) the judge permits the attorney to withdraw; or
(3) the defendant is deceased.
(E) Withdrawal of Counsel
(1) Counsel seeking to withdraw must file a written withdrawal motion. A copy shall also be promptly served upon the defendant.
(2) The judge shall not grant permission to withdraw until the judge appoints new counsel or new counsel enters an appearance.
(F) In Forma Pauperis
If the defendant proves an inability to pay the costs of the competency proceedings, the judge shall permit the defendant to proceed in forma pauperis.
Comment This rule ensures that the defendant is represented by counsel for purposes of Part C. In cases initiated by a certification motion under Rule 855, representation before a warrant of execution issues provides counsel with additional time to assess a potential claim under Ford v. Wainwright, 477 U.S. 399 (1986). In other cases, ensuring representation when an execution warrant issues is a failsafe if execution proves to be imminent. Counsel can assess the availability of collateral review from the underlying conviction and the likelihood of a stay being granted on grounds other than incompetency. If the defendant files a Ford motion in a case where execution appears imminent and the Commonwealth has not sought a competency certification, a stay of execution shall issue. See Rule 858(A)(3).
Because the issue is competency, the rule does not permit waiver of counsel. See Indiana v. Edwards, 554 U.S. 164, 177-78 (2008).
To the extent this rule differs from the procedures in Rules 120, 122, and 123, this rule take precedence.
Before appointing counsel, the judge must consider whether the attorney is able to handle the case within the time limitations of Part C.
The filing of an order appointing counsel enters counsel's appearance. Counsel does not have to file a separate entry of appearance.
Counsel's appointment or entry of appearance does not affect the appointment or entry of appearance of the same attorney for other purposes or for the appointment or entry of appearance of different attorneys for different purposes. However, counsel's obligations under this rule are separate and distinct.
The docket entry by the clerk of courts must include a notation that the appointment or entry of appearance is only for purposes of proceedings under Part C.
PART C(2). Competency certification by Secretary of Corrections Rule 855. Commonwealth's Motion for Certification.
(A) Motion; Timing; Party Respondent
(1) If the prosecutor determines that there is a reasonable likelihood that execution is imminent, the prosecutor shall file a motion requesting that the Secretary be ordered to produce a verified certification whether the defendant is presently competent to be executed.
(2) If the basis for the prosecutor's determination that execution is imminent is an order or event giving rise to the requirement to issue an execution warrant under 61 Pa.C.S. § 4302, the motion shall be filed no later than five days after that order or event.
(3) The defendant shall be named the party respondent, but is not required to file an answer, nor must the judge await an answer before disposing of the motion.
(B) Contents
The motion shall set forth the following information:
(1) the name of the defendant;
(2) the caption, county of conviction, number, and court term of the case or cases at issue;
(3) the date on which the defendant was sentenced;
(4) the place where the defendant is presently confined;
(5) the review status of the case, including whether any direct or collateral challenges to the underlying conviction are pending, and, if so, in what courts, and whether any applications for a stay of execution have been filed, and, if so, in what court and the status of the application;
(6) the basis for the prosecutor's determination that there is a reasonable likelihood that execution is imminent;
(7) the outcome of any previous proceeding in which competency was determined; and
(8) the name of the defendant's most recent attorney of record.
(C) Disposition
Within five days of the filing of the motion, the judge shall issue an order directing the Secretary to produce, within 10 days of the order, a verified certification of whether the defendant is presently competent to be executed.
Comment This rule does not require an answer from the defendant or appointment of counsel in advance of an order directing a competency certification. Certification merely requires the Secretary to timely state the executive branch's position on competency. Other provisions in Part C establish a procedure for the defendant to raise a timely claim under Ford v. Wainwright, 477 U.S. 399 (1986), when the Secretary issues a competency certification, and Rule 854 assures counsel will be available for the investigation and litigation of a colorable Ford claim.
This rule does not require the prosecutor to await an order or event triggering the requirement for reissuance of an execution warrant before seeking a competency certification. There may be instances where, for example, a court entertaining a serial PCRA petition identifies in advance a time frame for decision. The main concern is that the competency determination be made reasonably close in time to any date for execution ultimately specified.
If the prosecutor's motion is untimely under paragraph (A)(2), there is no requirement that the matter be accelerated so that any Ford issue may be finally resolved before the warrant of execution expires.
Rule 856. Certification by the Secretary of Corrections.
(A) Certification; Timing
Within 10 days of the issuance of an order under Rule 855(C), the Secretary shall provide a certification, under oath or affirmation, accompanied by a written mental health expert's report and opinion supporting the certification. The certification shall consist of a representation that:
(1) the defendant is competent to be executed; or
(2) the defendant is incompetent to be executed; or
(3) there are substantial grounds to believe the defendant's competency cannot be determined without further examination and a hearing.
(B) Effect of Certification; Action by Judge
(1) If the Secretary certifies that the defendant is competent, no immediate action is required of the judge. Any motion by counsel for the defendant challenging the certification shall proceed under Rule 857.
(2) If the Secretary certifies that the defendant is incompetent, the judge shall promptly issue an order staying the execution.
(a) Any motion by the Commonwealth challenging the certification shall proceed under Rule 859.
(b) If the Commonwealth does not challenge the certification, the judge shall issue an order directing the Department to:
(i) monitor the defendant's mental health;
(ii) provide appropriate mental health treatment; and
(iii) provide periodic certifications respecting the defendant's continuing competency status in accordance with Rule 862.
(c) The judge may issue any supplemental orders necessary or appropriate to the disposition.
(3) If the Secretary certifies that there are substantial grounds to believe the defendant's competency cannot be determined without further examination and a hearing, the judge shall promptly issue an order staying the execution and providing for a competency examination of the defendant.
(4) If the Secretary fails to provide a certification within the requisite time frame, the judge shall issue an order staying the execution and providing for a competency examination of the defendant.
Comment See Rule 860 for the contents of an order directing a competency examination.
Paragraph (B)(2)(b)(ii) does not address any question about the defendant's right to object to or refuse treatment. Any such question is a substantive matter for the court. See Rule 862 for further monitoring and review procedures if a certification of incompetency is not challenged by the Commonwealth.
Under paragraph (B)(3), the Secretary's certification that further examination and a hearing are necessary is sufficient to satisfy the Ford v. Wainwright, 477 U.S. 399 (1986) threshold burden and require a hearing under Rules 860 and 861. Under paragraph (B)(4), the Secretary's failure to provide a certification likewise is sufficient to satisfy that threshold burden.
An order entered under paragraph (B)(2), (B)(3), or (B)(4) is not a final order subject to immediate review.
PART C(3). Defendant's challenge to certification of competency Rule 857. Motion; Response; Disposition.
(A) Motion; Timing; Request for Stay of Execution
(1) Any motion challenging the Secretary's certification of competency shall be filed within seven days of the date of certification. The motion shall request an order staying the execution and scheduling a competency examination and a hearing. Prior notice of the intent to challenge the certification of competency shall be provided to the clerk of courts with service upon all parties no later than two days before the filing. Notice may be given by electronic or facsimile transmission.
(2) The motion shall be signed by the defendant's attorney. The signature of the attorney shall constitute a certification that the attorney has read the motion, to the best of the attorney's knowledge, information, and belief there are good grounds to support the motion, and the motion is not interposed for delay.
(B) Contents
The motion shall set forth substantially the following information:
(1) whether any challenges to the underlying conviction are pending; if so, in what court and the status of the challenge;
(2) whether any other applications for a stay of execution have been filed; if so, in what court and the status of the application;
(3) a statement of the facts alleged in support of the assertion that the defendant is presently incompetent;
(4) any affidavits, records, and other evidence supporting the assertion of incompetency or a statement why such information is not available; and
(5) the name and address of one mental health expert who has examined, or will examine, the defendant to determine competency.
(C) Commonwealth's Response
Within seven days of the filing of the motion, the Commonwealth shall file a response indicating whether it opposes the motion, the request for a stay, and the request for a competency examination and hearing. If the Commonwealth opposes the motion, the response shall also include the name and address of one mental health expert who has examined, or will examine, the defendant to determine competency.
(D) Defendant's Answer
Within three days of the filing of the Commonwealth's response, the defendant's attorney may file an answer.
(E) Disposition
Within seven days of the filing of the defendant's answer or the expiration of the time for the answer, the judge shall issue an order determining whether the defendant has made a substantial threshold showing of incompetency to be executed. The order shall state the reasons supporting the determination.
(1) If the judge finds that the defendant has not made a substantial threshold showing of incompetency, the order shall deny the motion and the request for a stay of execution without a hearing.
(a) The order denying the motion shall be a final order for purposes of appeal. The order shall advise the defendant of the right to seek expedited review in the Pennsylvania Supreme Court and of the time within which such review must be sought. See Pa.R.A.P. 3315(b)(1) (application for review of an order determining competency where execution warrant is not stayed must be filed within 10 days of entry of the order).
(b) Upon entry of the order, the clerk of courts immediately shall transmit the record of the proceeding to the Prothonotary.
(2) If the judge finds that the defendant has made a substantial threshold showing of incompetency, the order shall stay the execution and provide for a competency examination of the defendant pursuant to Rule 860, and the case shall proceed under Rules 860 and 861.
Comment The time limitations in this rule must be strictly followed, given the exigencies. The limitations recognize that the certification process affords additional time for the parties to prepare. Moreover, the question is narrow: has the defendant made a substantial threshold showing of incompetency.
The rule requires the Commonwealth to affirmatively take a position. The term ''response'' is used because the rule requires more information than ordinarily appears in an ''answer.'' In all other respects, ''response'' is the same as ''answer'' for purposes of determining the contents requirements, see Rule 575(B), format requirements, see Rule 575(C), and procedures for filing and service, see Rule 576.
See Rule 860 for the contents of an order directing a competency examination. See Rule 861 for the procedures governing a competency hearing.
See Pa.R.A.P. 3315 for the expedited procedures governing an application for review of an order entered under paragraph (E)(1), denying the motion and request for a stay of execution.
An order entered under paragraph (E)(2) is not a final order subject to immediate review.
PART C(4). Defendant's challenge to competency in the absence of certification Rule 858. Motion; Response; Disposition.
(A) Motion; Timing; Stay of Execution
(1) If a warrant of execution is issued, but no competency certification motion under Rule 855 has been filed, any motion challenging the defendant's competency shall be filed within 30 days of the issuance of the warrant. The motion shall request an order staying the execution and scheduling a competency examination and a hearing.
(2) The motion shall be signed by the defendant's attorney. The signature of the attorney shall constitute a certification that the attorney has read the motion and, to the best of the attorney's knowledge, information, and belief there are good grounds to support the motion.
(3) The Commonwealth's failure to seek a competency certification shall be deemed sufficient to require a stay of execution, which shall remain in place until the decision of the motion becomes final, including proceedings on appeal.
(B) Contents
The motion shall set forth the following information:
(1) the name of the defendant;
(2) the caption, county of conviction, number, and court term of the case or cases at issue;
(3) the date on which the defendant was sentenced;
(4) the place where the defendant is presently confined;
(5) the date the warrant of execution was issued and the scheduled date for execution;
(6) the review status of the case, including whether any challenges to the underlying conviction are pending; if so, in what court and the status of the challenge;
(7) whether any other applications for a stay of execution have been filed; if so, in what court and the status of the application;
(8) a statement of the facts alleged in support of the assertion that the defendant is presently incompetent;
(9) any affidavits, records, and other evidence supporting the assertion of incompetency or a statement why such information is not available;
(10) the name and address of one mental health expert who has examined, or will examine, the defendant to determine competency; and
(11) information concerning the outcome of any previous proceeding in which competency was determined.
(C) Commonwealth's Response
Within 20 days of the filing of the motion, the Commonwealth shall file a response indicating whether it opposes the motion and the request for a competency examination and a hearing. If the Commonwealth opposes the motion, the response shall also include the name and address of one mental health expert who has examined, or will examine, the defendant to determine competency.
(D) Defendant's Answer
Within 10 days of the Commonwealth's response, the defendant may file an answer.
(E) Disposition
Within 20 days of the filing of the defendant's answer or the expiration of the time for the answer, the judge shall issue an order determining whether the defendant has made a substantial threshold showing of incompetency to be executed. The order shall state the reasons supporting the determination.
(1) If the judge finds that the defendant has not made a substantial threshold showing of incompetency, the order shall deny the motion without a hearing.
(a) The order denying the motion shall be a final order for purposes of appeal. The order shall advise the defendant of the right to seek expedited review in the Pennsylvania Supreme Court and of the time within which such review must be sought. See Pa.R.A.P. 3315(b)(2) (application for review of an order determining competency where no execution warrant is pending, or warrant is stayed, must be filed within 21 days of the entry of the order).
(b) Upon entry of the order, the clerk of courts immediately shall transmit the record of the proceeding to the Prothonotary.
(2) If the judge finds that the defendant has made a substantial threshold showing of incompetency, the order shall provide for a competency examination of the defendant pursuant to Rule 860, and the case shall proceed under Rules 860 and 861.
Comment This rule addresses the circumstance where an execution warrant is issued and execution appears imminent, but the Commonwealth did not invoke the accelerated competency certification procedure contemplated under Rule 855. Upon the filing of a motion challenging the defendant's competency, a stay must issue, and the competency question, including the threshold question of entitlement to a hearing, should be resolved expeditiously, with the case proceeding as otherwise provided in Part C.
See Pa.R.A.P. 3315 for the procedures governing an application for review of an order entered under paragraph (E)(1), denying the motion.
An order entered under paragraph (E)(2) is not a final order subject to immediate review.
PART C(5). Commonwealth's challenge to certification of incompetency Rule 859. Motion; Response; Disposition.
(A) Motion; Timing
(1) Any motion challenging the Secretary's certification of incompetency shall be filed by the Commonwealth within 30 days of the certification. The motion shall request an order scheduling a competency examination and a hearing.
(B) Contents
The motion shall set forth substantially the following information:
(1) a statement of the facts alleged in support of the assertion that the defendant is presently competent;
(2) any affidavits, records, and other evidence supporting the assertion of competency or a statement why such information is not available; and
(3) the name and address of one mental health expert who has examined, or will examine, the defendant to determine competency.
(C) Defendant's Response
Within 20 days of the filing of the motion, the attorney for the defendant shall file a response. If the defendant opposes the motion, the response shall include the name and address of one mental health expert who has examined, or will examine, the defendant to determine competency.
(D) Commonwealth's Answer
Within 10 days of the filing of the defendant's response, the Commonwealth may file an answer.
(E) Disposition
Within 20 days of the filing of the Commonwealth's answer or the expiration of the time for the answer, the judge shall issue an order determining whether the Commonwealth has shown reasonable grounds to question the certification of incompetency. The order shall state the reasons supporting the determination.
(1) If the judge finds that the Commonwealth has not demonstrated reasonable grounds to question the certification of incompetency, the order shall deny the motion without a hearing and continue the stay of execution.
(a) The order denying the motion shall be a final order for purposes of appeal, and is subject to expedited review in the Supreme Court. See Pa.R.A.P. 3315(b)(2) (application for review of an order determining competency where no execution warrant is pending, or warrant is stayed, must be filed within 21 days of the entry of the order).
(b) If the Commonwealth does not seek further review, the judge shall enter an order directing the Department to:
(i) monitor the defendant's mental health;
(ii) provide appropriate mental health treatment; and
(iii) provide periodic certifications respecting the defendant's continuing competency status in accordance with Rule 862.
(2) If the judge finds that the Commonwealth has demonstrated reasonable grounds to question the certification of incompetency, the order shall provide for a competency examination of the defendant pursuant to Rule 860, and the case shall proceed under Rules 860 and 861.
Comment Under Rule 856(B)(2), the Secretary's certification of incompetency requires the trial court to issue a stay of execution. The rules do not require resolving a Commonwealth challenge to the certification before the execution warrant expires. The claim still should be resolved expeditiously, however, proceeding as otherwise provided in Part C.
See Pa.R.A.P. 3315 for the procedures governing an application for review of an order entered under paragraph (E)(1), denying the motion and continuing the stay of execution.
Paragraph (E)(1)(b)(ii) does not address any question about the defendant's right to object to or refuse treatment. Any such question is a substantive matter for the court. See Rule 862 for further monitoring and review procedures.
An order entered under paragraph (E)(2) is not a final order subject to immediate review.
PART C(6). Competency hearings Rule 860. Preliminary Matters.
(A) Order Directing Competency Examinations of the Defendant
(1) Whenever the judge orders a competency examination, the order shall:
(a) direct the defendant to submit to examinations by the mental health experts specified by the defendant and the Commonwealth;
(b) inform the defendant of the purpose of the examinations and that the results of the examinations may be used at a competency hearing;
(c) inform the defendant of the potential consequences of failing to cooperate with the examinations;
(d) specify who may be present at the examinations; and
(e) specify the time within which the examinations must be conducted and the mental health experts must submit their written reports.
(2) The judge may also order the defendant to submit to a competency examination by one or more mental health experts designated by the judge.
(B) Evidentiary Material; Reciprocal Disclosure
(1) Upon request of the defendant or the Commonwealth, the judge shall order the Department and other entities identified as having possession of evidentiary material relevant to the defendant's present competency status to promptly provide the parties with copies of the material.
(2) The parties shall promptly exchange copies of relevant evidentiary material in their possession, including written expert reports. Issues concerning disclosure, including claims of privilege, shall be presented to and resolved by the judge.
(3) Evidentiary material secured under this rule shall not be of public record and shall not be disclosed beyond the parties and their experts without leave of the judge.
(C) Mental Health Expert Reports
(1) The examinations shall be completed, and the mental health experts' written reports shall be submitted to the court and provided to the parties, within 60 days of the order directing the examinations. In cases proceeding under Rule 862 (monitoring and review after incompetency finding), the judge may grant an extension of no more than 30 days for submission of the expert reports.
(2) The expert reports shall address the nature of the defendant's mental disorder, if any; the disorder's relationship to competency; the expert's opinion of the defendant's competency expressed within a reasonable degree of medical, psychiatric, or psychological certainty; and the grounds supporting that opinion.
(3) The expert reports shall not be of public record, and shall not be disclosed beyond the parties and the parties' experts without leave of the judge.
(D) Status Report
Within 30 days of the order directing examinations, the parties shall report to the judge the status of the examinations and expert reports, and any other pertinent matters. In cases proceeding under Rule 862 (monitoring and review after incompetency finding), status reports are not required, but may be ordered by the judge.
(E) Pre-hearing Conference; Scheduling Hearing
Within 60 days of the order directing examinations, the judge shall hold a pre-hearing conference to review the status of the case and determine if a hearing is necessary. Any hearing shall commence no later than 60 days after completion of the examinations unless, upon good cause shown, the judge orders a continuance, which shall not exceed 30 days. In cases proceeding under Rule 862 (monitoring and review after incompetency finding), a pre-hearing conference is not required, but may be ordered by the judge. Competency hearings conducted under Rule 862 shall be concluded as soon as reasonably practicable.
Comment Before ordering additional examinations, the judge must consider, among other factors, the need for additional experts and the costs.
As used in paragraph (B), ''evidentiary material'' is information directly relevant to the question of competency to be executed. Paragraph (B) is intended to ensure the prompt collection of materials relevant to competency at an early stage of the proceedings.
If the defendant fails to cooperate in an examination, before imposing a sanction, the judge shall consider whether: (1) the failure was intentional; (2) the failure resulted from mental illness; and (3) ordering the defendant to resubmit to the examination would result in cooperation. Sanctions for failure to cooperate include, but are not limited to, the judge declining to consider expert mental health evidence proffered by the defendant.
The pre-hearing conference serves the same purpose as a pretrial conference in criminal cases. See Rule 570. The judge and counsel should consider: (1) simplification or stipulation of factual issues; (2) adopting measures to avoid cumulative testimony; (3) qualification of exhibits as evidence; and (4) such other matters as may aid in the timely determination of competency.
The judge may schedule an earlier date for the hearing when appropriate. A hearing may be unnecessary where, for example, the experts and the parties are in agreement on the competency question.
In cases proceeding under Rule 862, the question of whether there has been a material change in circumstances is narrow, but the time constraints are not the same as when an execution warrant is pending. Thus, the rule offers greater flexibility. Matters arising under Rule 862 should still be decided expeditiously.
Rule 861. Hearing; Disposition.
(A) Hearing
(1) The hearing shall be limited to the issue of the defendant's present competency to be executed.
(2) The defendant shall appear in person with counsel.
(3) The parties may introduce evidence, including expert reports and testimony, cross-examine witnesses, and present argument or, by stipulation, may submit the matter for the judge's determination on the basis of expert reports and other evidence. The judge may call and question witnesses as provided by law.
(B) Disposition
Within 30 days of the conclusion of the hearing, the judge shall issue an order determining whether the defendant is competent. The order shall include specific findings of fact concerning the relevant factors for determining competency. In cases proceeding under Rule 862 (monitoring and review after incompetency finding), the judge's order shall be issued as soon as reasonably practicable.
(1) If the judge finds that the defendant is competent, the order shall vacate any existing order staying execution. The order shall advise the defendant of the right to seek expedited review in the Pennsylvania Supreme Court and of the time within which such review must be sought. See Pa.R.A.P. 3315(b)(2) (application for review of an order determining competency where no execution warrant is pending, or warrant is stayed, must be filed within 21 days of the entry of the order).
(2) If the judge finds that the defendant is incompetent, the order shall stay the execution until such time as the defendant is determined to be competent.
(a) The order shall direct the Department to:
(i) monitor the defendant's mental health;
(ii) provide appropriate mental health treatment; and
(iii) provide periodic certifications respecting the defendant's continuing competency status in accordance with Rule 862.
(b) The judge may issue any supplemental orders necessary or appropriate to the disposition.
(3) The order determining competency issued under paragraph (B)(1) or (2) shall be a final order subject to expedited review in the Supreme Court. See Pa.R.A.P. 3315(b)(2) (application for review of an order determining competency where no execution warrant is pending, or warrant is stayed, must be filed within 21 days of the entry of the order).
Comment This rule provides the due process hearing required by Panetti v. Quarterman, 551 U.S. 930, 934-35, 949-50 (2007), once a substantial threshold showing of incompetency has been made. The rule also addresses subsequent competency hearings held pursuant to Rule 862.
Paragraph (A)(2) requires the defendant's presence. Advanced communication technology may not be utilized. See Rule 119. However, the judge may exclude a disruptive defendant. See, e.g., Illinois v. Allen, 397 U.S. 337, 342-43 (1970). See also Commonwealth v. Basemore, 582 A.2d 861, 867-68 (Pa. 1990).
The defendant ordinarily has the burden of going forward and proving incompetency by a preponderance of evidence. See Commonwealth v. Banks, 29 A.3d 1129, 1135 (Pa. 2011). Under the certification procedure in Part C, however, there may be instances where the Commonwealth is the moving party. See Rule 859 (Commonwealth motion challenging certification of incompetency); Rule 862 (Commonwealth motion alleging a change in circumstances following a finding of incompetency). Assignment of the burden depends upon the identity of the moving party and the prior decisional status of the competency question.
Evidence to be considered by the judge, including mental health expert reports, must be introduced by the parties at the hearing and made part of the record.
Paragraph (B)(2)(a)(ii) does not address any question about the defendant's right to object to or refuse treatment. Any such question is a substantive matter for the court. See Rule 862 for further monitoring and review procedures.
In requiring the vacatur of an existing stay of execution if the defendant is found competent under paragraph (B)(1), the rule recognizes that any warrant of execution will have expired by the time a hearing has been conducted and a final order is entered.
See Pa.R.A.P. 3315 for the procedures governing an application for review of an order determining competency under paragraph (B)(1) or (B)(2).
PART C(7). Monitoring and review of incompetency Rule 862. Monitoring; Review; Hearing; Disposition.
(A) Monitoring; Periodic Certifications
(1) The Department shall monitor the defendant's competency whenever so ordered by the judge.
(2) Unless otherwise ordered by the judge, the Secretary shall provide the judge with a competency certification every six months. The certification shall be under oath or affirmation and accompanied by a written mental health expert's report in support of the certification.
(B) Certification of Continued Incompetency; Commonwealth Challenge
(1) If the Secretary certifies that the defendant remains incompetent, the judge shall take no further action unless the Commonwealth challenges the certification.
(2) Any motion challenging a certification of continued incompetency shall be filed by the Commonwealth within 21 days of the certification.
(a) The motion shall state with specificity the facts alleged to support the assertion that the Secretary's certification is erroneous. The motion shall include a supporting mental health expert's affidavit and any other relevant evidence.
(b) Counsel for the defendant shall file a response to the motion within 21 days.
(c) Within 10 days of the filing of the defendant's response, the Commonwealth may file an answer.
(d) Within 30 days of the filing of the Commonwealth's answer or the expiration of the time for the answer, the judge shall order a competency examination and a hearing only if the Commonwealth establishes substantial grounds to question the certification of continued incompetency, and the matter shall proceed under Rules 860 and 861.
(C) Certification of Competency; Defendant's Challenge
(1) If the Secretary certifies that the defendant has become competent, any motion challenging the certification shall be filed by the defendant's counsel within 21 days of the certification.
(a) The motion shall state with specificity the facts alleged to support the assertion that the Secretary's certification is erroneous. The motion shall include a supporting mental health expert's affidavit and any other relevant evidence.
(b) Counsel for the Commonwealth shall respond to the motion within 21 days.
(c) Within 10 days of the filing of the Commonwealth's response, the defendant may file an answer.
(d) Within 30 days of the filing of the defendant's answer or the expiration of the time for the answer, the judge shall order a competency examination and a hearing only if the defendant establishes substantial grounds to question the certification of competency, and the matter shall proceed under Rules 860 and 861.
(2) If the defendant fails to file a timely challenge to the certification of competency, the judge shall vacate any existing order staying execution.
(D) Commonwealth Challenge in the Absence of Certification
At any time following a determination that the defendant is incompetent, the Commonwealth may move for a further competency examination by alleging a material change in the defendant's mental health status. The motion shall state with specificity the facts alleged in support of the assertion that the defendant is presently competent, and shall include a supporting mental health expert's affidavit and any other relevant evidence. Counsel for the defendant shall respond as directed by the judge. Within 10 days of the filing of the defendant's response, the Commonwealth may file an answer. Within 30 days of the filing of the Commonwealth's answer or the expiration of the time for the answer, the judge shall order a competency examination only if the Commonwealth establishes substantial grounds to conclude that, due to a material change in circumstances, the defendant is presently competent.
(E) Examination; Hearing; Determination
Unless otherwise ordered by the judge, examinations and hearings ordered under this Rule shall proceed under Rules 860 and 861.
Comment In instances where the determination of incompetency followed upon a full-blown hearing under Rule 861, paragraph (E) authorizes the judge to resolve a further competency challenge in a less formal manner than that contemplated under Rules 860 and 861.
If an application for review of a prior competency determination pursuant to Pa.R.A.P. 3315 has been filed and remains pending, the judge shall not take any action under this rule until the application has been decided.
CHAPTER 9. POST-CONVICTION COLLATERAL PROCEEDINGS Rule 904. Entry of Appearance and Appointment of Counsel; In Forma Pauperis.
* * * * *
Comment * * * * *
Pursuant to paragraphs (F)(2) and (H)(2)(b), appointed counsel retains his or her assignment until final judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania. In making the decision whether to file a petition for allowance of appeal, counsel must (1) consult with his or her client, and (2) review the standards set forth in Pa.R.A.P. 1114 (Considerations Governing Allowance of Appeal) and the note following that rule. If the decision is made to file a petition, counsel must carry through with that decision. See Commonwealth v. Liebel, [573 Pa. 375,] 825 A.2d 630 (Pa. 2003). Concerning counsel's obligations as appointed counsel, see Jones v. Barnes, 463 U.S. 745 (1983). See also Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. [Ct.] 2001).
Paragraph (H) was added in 2000 to provide for the appointment of counsel for the first petition for post-conviction collateral relief in a death penalty case at the conclusion of direct review.
Paragraph (H)(1)(a) recognizes that a defendant may proceed pro se if the judge finds the defendant competent, and that the defendant's election is knowing, intelligent, and voluntary. In Indiana v. Edwards, 554 U.S. 164, 178 (2008), the Supreme Court recognized that, when a defendant is not mentally competent to conduct his or her own defense, the U.S. Constitution permits the judge to require the defendant to be represented by counsel.
See Rule 854(B) that requires an attorney who has been retained to represent a defendant in proceedings under Part C of Chapter 8 to file a written entry of appearance.
An attorney may not represent a defendant in a capital case unless the attorney meets the educational and experiential requirements set forth in Rule 801 (Qualifications for Defense Counsel in Capital Cases).
* * * * *
Rule 909. Procedures for Petitions in Death Penalty Cases: Stays of Execution of Sentence; Hearing; Disposition.
(A) Stays of Execution
(1) In a case in which the defendant has received a sentence of death, any request for a stay of execution of sentence should be made in the petition for post-conviction collateral relief.
(2) The judge shall grant a stay of execution if the petition is a timely first petition under the PCRA. In cases involving a second or subsequent PCRA petition, the judge shall grant a stay of execution only if the petition meets the requirements of the PCRA and there has been a strong showing of a likelihood of success on the merits.
[(2)] (3) In all cases in which a stay of execution has been properly granted, 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, 33-34,] 771 A.2d 721, 740-741 (Pa. 2001) (''Morris I'') 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 the likelihood of prevailing on the merits.''
Paragraph (A)(2) was added in (DATE) to make clear that the defendant may pursue a timely first PCRA petition as of right, and therefore is entitled to a stay of execution during the pendency of the petition. Accord Pa.R.A.P. 3314 & Note. Stay requests associated with second or subsequent PCRA petitions are subject to 42 Pa.C.S. § 9545(c) (the petition must be pending, must 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 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).
Paragraph [(A)(2)] (A)(3) provides, 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 in an appropriate case. 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)] 3314 (Stays of Execution).
* * * * *
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
ARTICLE I. PRELIMINARY PROVISIONS
CHAPTER 7. COURTS TO WHICH APPEALS SHALL BE TAKEN
IN GENERAL Rule 702. Final Orders.
* * * * *
(b) Matters tried with capital offenses.—If an appeal is taken to the Supreme Court [under Rule 1941 (review of death sentences)] from a sentence of death under Pa.R.A.P. 3311(a), any other appeals relating to sentences for lesser offenses imposed on [a] the defendant as a result of the same criminal episode or transaction and tried with the capital offense shall be taken to the Supreme Court.
(c) Supervision of special prosecutions or investigations.—All petitions for review under [Rule] Pa.R.A.P. 3331 (review of special prosecutions or investigations) shall be filed in the Supreme Court.
Official Note: Because of frequent legislative modifications it is not desirable to attempt at this time to restate appellate court jurisdiction in these rules. However, the Administrative Office of Pennsylvania Courts publishes from time to time at 204 Pa. Code § 201.2 an unofficial chart of the Unified Judicial System showing the appellate jurisdiction of the several courts of this Commonwealth, and it is expected that the several publishers of these rules will include a copy of the current version of such chart in their respective publications.
[Subdivisions] Paragraphs (b) and (c) are based upon 42 Pa.C.S. § 722(1) (direct appeals from courts of common pleas). Under [Rule] Pa.R.A.P. 751 (transfer of erroneously filed cases) an appeal from a lesser offense improvidently taken to the Superior Court or the Commonwealth Court will be transferred to the Supreme Court for consideration and decision with the capital offense.
The Supreme Court conducts a limited direct review of death sentences even if no appeal is taken. See Pa.R.A.P. 3312. Under paragraph (b), if an appeal is taken from a sentence of death, review of sentences imposed for lesser offenses is also available. See Commonwealth v. Parrish, 77 A.3d 557, 561 (Pa. 2013) (if the defendant fails to file an appeal from a death sentence, claims unassociated with automatic review are not preserved).
Under [Rule 701 (interlocutory orders)] Pa.R.A.P. 701 the jurisdiction described in [Subdivision] paragraph (c) extends also to interlocutory orders. See [Rule 102 (definitions)] Pa.R.A.P. 102 where the term ''appeal'' includes proceedings on petition for review. Ordinarily [Rule] Pa.R.A.P. 701 will have no application to matters within the scope of [Subdivision] paragraph (b), since that [subdivision] paragraph is contingent upon entry of a final order in the form of a sentence of death; the mere possibility of such a sentence is not intended to give the Supreme Court direct appellate jurisdiction over interlocutory orders in homicide and related cases since generally a death sentence is not imposed.
ARTICLE II. APPELLATE PROCEDURE
CHAPTER 9. APPEALS FROM LOWER COURTS Rule 901. Scope of Chapter.
This chapter applies to all appeals from a trial court to an appellate court except:
(1) An appeal by allowance taken under 42 Pa.C.S. § 724 (allowance of appeals from Superior and Commonwealth Courts). See [Rule] Pa.R.A.P. 1112 (appeals by allowance).
(2) An appeal by permission taken under 42 Pa.C.S. § 702(b) (interlocutory appeals by permission). See [Rule] Pa.R.A.P. 1311 (interlocutory appeals by permission).
(3) An appeal which may be taken by petition for review pursuant to [Rule] Pa.R.A.P. 1762(b)(2), which governs applications relating to bail when no appeal is pending.
(4) An appeal which may be taken by petition for review pursuant to [Rule] Pa.R.A.P. 1770, which governs out of home placement in juvenile delinquency matters.
(5) Automatic review of sentences pursuant to 42 Pa.C.S. § 9711(h) (review of death sentence). See [Rule 1941 (review of death sentences)] Pa.R.A.P. 3312.
(6) An appeal which may be taken by petition for review pursuant to [Rule] Pa.R.A.P. 3331 (review of special prosecutions or investigations).
(7) An appeal which may be taken only by a petition for review pursuant to [Rule] Pa.R.A.P. 1573, which governs review when a trial court has denied a motion to dismiss on the basis of double jeopardy as frivolous.
Official Note: Paragraph 5 addresses cases involving automatic review of a death sentence and does not affect direct appeals and post-conviction appeals in death penalty cases, which are generally subject to this chapter. See Pa.R.A.P. 3311 and 3313.
Rule 909. Appeals to the Supreme Court. Jurisdictional Statement. Sanctions.
(a) General rule—Upon filing a notice of appeal to the Supreme Court, the appellant shall file with the prothonotary or clerk of the trial court an original and [8] eight copies of a jurisdictional statement. The statement shall be in the form prescribed by [Rule] Pa.R.A.P. 910(a) and (b). No statement need be filed in cases [arising under Pa.R.A.P. 1941 (Review of Death Sentences)] involving review of a sentence of death under Pa.R.A.P. 3311 (direct review) or 3312 (automatic review).
(b) Answer.—Within 14 days after service of a jurisdictional statement, an adverse party may file with the Prothonotary of the Supreme Court an original and eight copies of an answer thereto in the form prescribed by [Rule] Pa.R.A.P. 911. The answer shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized. No separate motion to dismiss a jurisdictional statement will be received. A party entitled to file an answer who does not intend to do so shall, within the time fixed by these rules for filing an answer, file a letter stating that an answer to the jurisdictional statement will not be filed. The failure to file an answer will not be construed as concurrence in the jurisdictional statement.
(c) Action by the Supreme Court.—After consideration of the jurisdictional statement and the brief in opposition thereto, if any, the Court will enter an appropriate order which may include summary dismissal for lack of subject matter jurisdiction. If the Supreme Court in its order notes probable jurisdiction or postpones consideration of jurisdiction to the hearing on the merits, the Prothonotary of the Supreme Court forthwith shall notify the court below and the attorneys of record of the noting or postponement, and the case will then stand for briefing and oral argument. In such case, the parties shall address the question of jurisdiction at the outset of their briefs and oral arguments.
(d) Sanctions.—If the court finds that the parties have not complied with [Rules] Pa.R.A.P. 909 through 911, it may impose appropriate sanctions including but not limited to dismissal of the action, imposition of costs or disciplinary sanction upon the attorneys.
[Continued on next Web Page]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
