Title 234--RULES OF CRIMINAL PROCEDURE PART I. GENERAL [234 PA. CODE CH. 1500] Proposed Amendments to Chapter 1500 [26 Pa.B. 2296] Introduction The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend the rules in Chapter 1500 (Post-Conviction Collateral Proceedings) to align the Chapter with recent amendments to the Post Conviction Relief Act, Act 1995-32(SS1),1 42 Pa.C.S. §§ 9542--9546, effective January 16, 1996.
The following explanatory Report highlights the issues considered in formulating this proposal. As such, the Report should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel: Anne T. Panfil, Chief Staff Counsel, Criminal Procedural Rules Committee, P. O. Box 1325, Doylestown, PA 18901, no later than June 21, 1996.
By the Criminal Procedural Rules Committee
FRANCIS BARRY MCCARTHY,
ChairAnnex A TITLE 234. RULES OF CRIMINAL PROCEDURE PART I. GENERAL CHAPTER 1500. POST-CONVICTION COLLATERAL PROCEEDINGS Committee Note: The rules in this Chapter apply to capital and noncapital cases under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9542--9546, as amended by Act 1995-32 (SS1), effective January 16, 1996. They do not apply to proceedings under the Capital Unitary Review Act, 42 Pa.C.S. §§ 9570--9579.
Rule 1501. Initiation of Post-Conviction Collateral Proceedings.
(1) A petition for post-conviction collateral relief shall be filed within one year of the date the judgment becomes final, except as otherwise provided by statute.
(2) A proceeding for post-conviction collateral relief shall be initiated by filing a [motion] petition and 3 copies with the clerk of the court in which the defendant was convicted and sentenced. The [motion] petition shall be verified by the defendant.
Official Note: Previous Rule 1501 adopted January 24, 1968, effective August 1, 1968; amended November 25, 1968, effective February 3, 1969; amended February 15, 1974, effective immediately; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded November 9, 1984, effective January 2, 1985. Former Rule 1501 adopted November 9, 1984, effective January 2, 1985; rescinded February 1, 1989, effective July 1, 1989; and replaced by present Rule 1502. Present Rule 1501 adopted February 1, 1989, effective July 1, 1989; amended March 22, 1993, effective January 1, 1994; amended ______ , effective ______ .
Comment The rules in Chapter 1500 govern proceedings to obtain relief authorized by the Post Conviction Relief Act, 42 Pa.C.S. § 9451 et seq. (hereinafter PCRA).
By statute, a court may not entertain a request for any form of relief in anticipation of the filing of a petition for post-conviction collateral relief. 42 Pa.C.S. § 9545(a).
The [motion] petition for post-conviction relief under these rules is not intended to be a substitute for or a limitation on the availability of appeal or a post-sentence motion. See Pa.[Rs] R.Crim.P. [320 and] 1410. Rather, the Chapter 1500 Rules are intended to require that, in a single proceeding, the defendant must raise and the judge must dispose of all grounds for relief available after conviction, and exhaustion of the appellate process, either by affirmance or by the failure to take a timely appeal.
Under the 1995 amendments to the PCRA, no discovery is permitted at any stage of the proceedings, except upon leave of the court with a showing of exceptional circumstances. 42 Pa.C.S. § 9545(d)(2).
As used in the Chapter 1500 Rules, ''[motion] petition for post-conviction collateral relief'' and ''[motion] petition'' are intended to include an amended [motion] petition filed pursuant to Rule 1505, except where the context indicates otherwise.
Under the 1995 amendments to the PCRA, a petition for post-conviction relief, including second and subsequent petitions, must be filed within one year of the date the judgment becomes final, 42 Pa.C.S. § 9545(b)(1), unless one of the statutory exceptions applies, see 42 Pa.C.S. § 9545(b)(1)(i)--(iii). Any petition invoking one of these exceptions must be filed within 60 days of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).
The 1995 amendments to the PCRA apply to petitions filed on or after January 16, 1996. A petitioner whose judgment has become final on or before the effective date of the Act is deemed to have filed a timely petition under the Act if the first petition is filed within one year of the effective date of the Act. See sections 3 and 4 of Act 1995-32(SS1).
For the purposes of the PCRA, a judgment becomes final at the conclusion of direct review, including 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. 42 Pa.C.S. § 9545(b)(3).
Committee Explanatory Reports:
Final Report explaining the March 22, 1993 amendments published with the Court's Order at 23 Pa.B. 1699 (April 10, 1993).
Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2302 (May 18, 1996).
Rule 1502. Content of [Motion] Petition for Post-Conviction Collateral Relief.
(a) A [motion] petition for post-conviction collateral relief shall bear the caption, number, and court term of the case or cases in which relief is requested and shall contain substantially the following information:
* * * * * (13) whether any of the grounds for the relief requested were raised before, and if so, at what stage of the case; [and]
(14) a verification by the defendant that the facts set forth in the [motion] petition are true and correct to the best of the defendant's personal knowledge or information and belief and that any false statements therein are made subject to the penalties [of Section 4904] of the Crimes Code, [(]18 Pa.C.S. § 4904[)], relating to unsworn falsification to authorities; and
(15) if applicable, any request for an evidentiary hearing. The request for an evidentiary hearing shall include a signed certification as to each intended witness stating the witness's name, address, and date of birth, and the substance of the witness's testimony. Any documents material to the witness's testimony shall also be included in the petition.
The [motion] petition may, but need not, include concise argument or citation and discussion of authorities.
(b) Each ground relied upon in support of the relief requested shall be stated in the [motion] petition. Failure to state such a ground in the [motion] petition shall preclude the defendant from raising that ground in any [subsequent] proceeding for post-conviction collateral relief [under these rules].
(c) The defendant shall state in the [motion] petition the name and address of the attorney who will represent the defendant in the post-conviction collateral proceeding. If the defendant is unable to afford or otherwise procure counsel, and wants counsel appointed, the defendant shall so state in the [motion] petition and shall request the appointment of counsel.
(d) The defendant shall attach to the [motion] petition any affidavits, records, documents, or other evidence which show the facts stated in support of the grounds for relief, or the [motion] petition shall state why they are not attached.
Official Note: Previous Rule 1502 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989; and replaced by present Rules 1503 and 1505. Present Rule 1502 adopted February 1, 1989, effective July 1, 1989; amended ______ ; effective ______ .
Comment [This rule is derived from former Rule 1501.]
Pursuant to paragraph (a)(6), the [motion] petition should include specific information about the sentence imposed, including whether the defendant is currently serving a sentence of imprisonment or probation for the crime; awaiting execution of a sentence of death for the crime; or serving a sentence which must expire before the defendant may commence serving the disputed sentence; the minimum and maximum terms of the sentence[,]; the amount of fine or restitution, if any[,]; and whether the defendant is released on [probation or] parole. See [also, Section 9543(a) of the PostConviction Relief Act,] 42 Pa.C.S. § 9543(a) [(Supp 1988)].
[Section] Sections 9543(a)(2), (3), and (4) of the PostConviction Relief Act, [(]42 Pa.C.S. § 9543(a)(2), (3), and (4), [(Supp. 1988)) requires] require that to be eligible for relief, the defendant must plead and prove by a preponderance of the evidence all of the following:
[1. ''That the conviction or sentence resulted from one or more of the following:
(I) A violation of the constitution of Pennsylvania or laws of this Commonwealth or the constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(II) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(III) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty.
(IV) The improper obstruction by Commonwealth officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(V) A violation of the provisions of the constitution, law or treaties of the United States which would require the granting of federal habeas corpus relief to a state prisoner.
(VI) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced.
(VII) The imposition of a sentence greater than the lawful maximum.
(VIII) A proceeding in a tribunal without jurisdiction.''
2. ''That the allegation of error has not been previously litigated and one of the following applies:
(I) The allegation of error has not been waived.
(II) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.
(III) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a state procedural default barring federal habeas corpus relief.''
3. ''That the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational strategic or tactical decision by counsel.'']
(2) That the conviction or sentence resulted from one or more of the following:
(i) A violation of the constitution of this Commonwealth or the constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.
(iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(v) A violation of the provisions of the Constitution, law or treaties of the United States which would require the granting of Federal habeas corpus relief to a State prisoner.
(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.
(vii) The imposition of sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.
(3) That the allegation of error has not been previously litigated or waived.
(4) That the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.
Under the 1995 amendments to the PCRA, no discovery is permitted at any stage of the proceedings, except upon leave of the court with a showing of exceptional circumstances. 42 Pa.C.S. § 9545(d)(2).
It is expected that a form [motion] petition will be prepared incorporating the required contents set forth herein which will be available for distribution to uncounseled defendants. This rule is not intended to require an attorney to use a printed form or any other particular format in preparing a [motion] petition or an amended [motion] petition for post-conviction collateral relief, provided, of course, that the attorney must include in a [motion] petition or amended [motion] petition substantially all of the information set forth in this rule.
The [motion] petition should be typewritten or legibly handwritten.
Committee Explanatory Reports:
Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2302 (May 18, 1996).
Rule 1503. Docketing and Assignment.
(a) Upon receipt of a [motion] petition for post-conviction collateral relief, the clerk of court shall immediately docket the [motion] petition to the same term and number as the underlying conviction and sentence. The clerk shall thereafter transmit the [motion] petition and the record to the trial judge, if available, or to the administrative judge, if the trial judge is not available. If the defendant's confinement is by virtue of multiple indictments and sentences, the case shall be docketed to the same term and number as the indictment upon which the first unexpired term was imposed, but the court may take judicial notice of all proceedings related to the multiple indictments.
(b) When the [motion] petition is filed and docketed, the clerk shall transmit a copy of the [motion] petition to the attorney for the Commonwealth.
(c) The trial judge, if available, shall proceed with and dispose of the [motion] petition in accordance with these rules, unless the judge determines, in the interests of justice, that he or she should be disqualified.
(d) When the trial judge is unavailable or disqualified, the administrative judge shall promptly assign and transmit the [motion] petition and the record to another judge, who shall proceed with and dispose of the [motion] petition in accordance with these rules.
Official Note: Previous Rule 1503 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989; and replaced by present Rule 1504. Present Rule 1503 adopted February 1, 1989, effective July 1, 1989; amended ______ , effective ______ .
Comment [This rule replaces paragraphs (a) and (b) of former Rule 1502.]
As used in this rule, ''trial judge'' is intended to include the judge who accepted a plea of guilty or nolo contendere.
The transmittal of the [motion] petition to the attorney for the Commonwealth does not require a response unless one is ordered by the judge as provided in these rules.
Committee Explanatory Reports:
Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2302 (May 18, 1996).
Rule 1504. Appointment of Counsel; In Forma Pauperis.
(a) When an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant's first [motion] petition for post-conviction collateral relief.
(b) On a second or subsequent [motion] petition, when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, and an evidentiary hearing is required as provided in Rule 1508, the judge shall appoint counsel to represent the defendant.
(c) The judge shall appoint counsel to represent a defendant whenever the interests of justice require it.
(d) An appointment of counsel shall be effective throughout the post-conviction proceedings, including any appeal from disposition of the [motion] petition for post-conviction collateral relief.
(e) When a defendant satisfies the judge that the defendant is unable to pay the costs of the post-conviction collateral proceedings, the judge shall order that the defendant be permitted to proceed in forma pauperis.
Official Note: Previous Rule 1504 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989; and replaced by Rule 1507. Present Rule 1504 adopted February 1, 1989, effective July 1, 1989; amended ______ , effective ______ .
Comment [This rule replaces former Rule 1503.]
If a defendant seeks to proceed without an attorney, the court may appoint standby counsel. See Rule 318.
Consistent with Pennsylvania post-conviction practice under former Rules 1503 and 1504, it is intended that counsel be appointed in every case in which a defendant has filed a [motion] petition for post-conviction collateral relief for the first time and is unable to afford counsel or otherwise procure counsel. However, the rule now limits appointment of counsel on second or subsequent [motion] petitions so that counsel should be appointed only if the judge determines that an evidentiary hearing is required. Of course, the judge has the discretion to appoint counsel in any case when the interests of justice require it.
A PCRA petition filed after final disposition under the Capital Unitary Review Act, 42 Pa.C.S. §§ 9570--9579, constitutes a second petition.
Committee Explanatory Reports:
Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2302 (May 18, 1996).
Rule 1505. Amendment and Withdrawal of [Motion] Petition for Post-Conviction Collateral Relief.
(a) The judge may grant leave to amend or withdraw a [motion] petition for post-conviction collateral relief at any time. Amendment shall be freely allowed to achieve substantial justice.
(b) When a [motion] petition for post-conviction collateral relief is defective as originally filed, the judge shall order amendment of the [motion] petition, indicate the nature of the defects, and specify the time within which an amended [motion] petition shall be filed. If the order directing amendment is not complied with, the [motion] petition may be dismissed without a hearing.
(c) Upon the entry of an order directing an amendment, the clerk of [court] courts shall serve a copy of the order on the defendant, the defendant's attorney, and the attorney for the Commonwealth.
(d) All amended [motions] petitions shall be in writing, shall comply substantially with Rule 1502, and shall be filed and served within the time specified by the judge in ordering the amendment.
Official Note: Previous Rule 1505 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989; and replaced by Rules 1506(b), 1508(a), and present Rule 1505(c). Present Rule 1505 adopted February 1, 1989, effective July 1, 1989; amended ______ , effective ______ .
Comment [This rule replaces paragraph (a) of former Rule 1505 and paragraph (c) of former Rule 1502.]
''Defective,'' as used in paragraph (b), is intended to include [motions] petitions that are inadequate, insufficient, or irregular for any reason; for example, [motions] petitions that lack particularity; [motions] petitions that do not comply substantially with Rule 1502; [motions] petitions that appear to be patently frivolous; [motions] petitions that do not allege facts which would support relief; [motions] petitions that raise issues the defendant did not preserve properly or were finally determined at prior proceedings.
When an amended [motion] petition is filed pursuant to paragraph (d), it is intended that the clerk of courts transmit a copy of the amended [motion] petition to the attorney for the Commonwealth. This transmittal does not require a response unless one is ordered by the judge as provided in these rules. See Rules 1503 and 1506.
Committee Explanatory Reports:
Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2302 (May 18, 1996).
Rule 1506. Answer to [Motion] Petition for Post-Conviction Collateral Relief.
(a) An answer to a [motion] petition for post-conviction collateral relief is not required unless ordered by the judge. When the judge has not ordered an answer, the attorney for the Commonwealth may elect to answer, but the failure to file one shall not constitute an admission of the well-pleaded facts alleged in the [motion] petition.
* * * * * Official Note: Previous Rule 1506 adopted January 24, 1968, effective August 1, 1968; Comment revised April 26, 1979, effective July 1, 1979; rule rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; Comment revised January 28, 1983, effective July 1, 1983; rule rescinded February 1, 1989, effective July 1, 1989; and replaced by Rule 1508. Present Rule 1506 adopted February 1, 1989, effective July 1, 1989; amended ______ , effective ______ .
Comment As used in the Chapter 1500 Rules, ''answer'' is intended to include an amended answer filed pursuant to paragraph (d) of this rule, except where the context indicates otherwise.
When determining whether to order that the attorney for the Commonwealth file an answer, the judge should consider whether an answer will promote the fair and prompt disposition of the issues raised by the defendant in the [motion] petition for post-conviction collateral relief. [See Section 9543(B) of the PostConviction Relief Act (42 Pa.C.S. § 9543(B)(Supp. 1988)) which, inter alia, authorizes the dismissal of the motion if ''because of delay in filing . . . , the Commonwealth has been prejudiced either in its ability to respond to the petition or in its ability to re-try the petitioner.'']
Committee Explanatory Reports:
Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2302 (May 18, 1996).
Rule 1507. Disposition Without Hearing.
(a) The judge shall promptly review the [motion] petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant's claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the [motion] petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 10 days of the date of the notice. The judge thereafter shall either order the [motion] petition dismissed, or grant leave to file an amended [motion] petition, or direct that the proceedings continue.
(b) A [motion] petition for post-conviction collateral relief may be granted without a hearing when the [motion] petition and answer show that there is no genuine issue concerning any material fact and that the defendant is entitled to relief as a matter of law.
(c) The judge may dispose of only part of a [motion] petition without a hearing by ordering dismissal of or granting relief on only some of the issues raised, while ordering a hearing on other issues.
(d) When the [motion] petition is dismissed without a hearing, the judge[:] shall issue an order to that effect and shall advise the defendant by certified mail, return receipt requested, of the right to appeal from the final order disposing of the motion and of the time within which the appeal must be taken.
[(1) shall issue an order to that effect and shall state in the order the grounds on which the case was determined; and
(2) shall advise the defendant by certified mail, return receipt requested, of the right to appeal from the final order disposing of the motion and of the time within which the appeal must be taken.]
Official Note: Previous Rule 1507 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; amended January 28, 1983, effective July 1, 1983; rescinded February 1, 1989, effective July 1, 1989; and not replaced. Present Rule 1507 adopted February 1, 1989, effective July 1, 1989; amended ______ , effective ______ .
Comment [Previous Rule 1507 was rescinded in 1989 as unnecessary in view of the enactment of the new PostConviction Relief Act, Act 47 of 1988, 42 Pa.C.S. § 9541 et seq. (Supp. 1988). Present Rule 1507 replaces former Rule 1504.]
The judge is permitted, pursuant to paragraph (a), to summarily dismiss a [motion] petition for post-conviction collateral relief in certain limited cases. To determine whether a summary dismissal is appropriate, the judge should thoroughly review the [motion] petition, the answer if any, and all other relevant information that is included in the record. If after this review, the judge determines that the [motion] petition is patently frivolous and without support in the record, or that the facts alleged would not, even if proven, entitle the defendant to relief, or that there are no genuine issues of fact, the judge may dismiss the [motion] petition as provided herein.
A summary dismissal would also be authorized under this rule if the judge determines that a previous [motion] petition involving the same issue or issues was filed and was finally determined adversely to the defendant. See § 9545(b) for the timing requirements for filing second and subsequent petitions. A second or subsequent [motion] petition should be summarily dismissed when the judge determines that the defendant has failed to make a strong prima facie showing that a miscarriage of justice may have occurred. See Commonwealth v. Lawson, [____ Pa. ____,] 549 A.2d 107 (Pa. 1988). See also Rule 1504 with regard to the requirements for appointment of counsel in these cases.
Relief may be granted without a hearing under paragraph (b) only after an answer has been filed either voluntarily or pursuant to court order.
Upon disposition without a hearing under this rule, the judge should also comply with Rule 1508(d), to the extent that it reasonably applies.
By statute, a PCRA petition may not be dismissed due to delay in filing except after a hearing on a motion to dismiss. 42 Pa.C.S. § 9543(d). See Rule 1508.
Under the 1995 amendments to the PCRA, an order under that Act denying a petitioner final relief in a case in which the death penalty has been imposed is reviewable only by petition for allowance of appeal to the Supreme Court. 42 Pa.C.S. § 9546(b).
Committee Explanatory Reports:
Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2302 (May 18, 1996).
Rule 1508. Hearing.
(a) Except as provided in Rule 1507, the judge shall order a hearing [on all material issues of fact raised by the motion and answer, if any. The]:
(1) when the petition for post-conviction relief or the Commonwealth's answer, if any, raise material issues of fact. Provided, however, that the judge may deny a hearing on a specific issue of fact when a full and fair evidentiary hearing upon that issue was held at trial or at any proceeding before or after trial; or
(2) whenever the Commonwealth files a motion to dismiss due to the defendant's delay in filing the petition.
The judge shall schedule the hearing for a time that will afford the parties a reasonable opportunity for investigation and preparation, and shall enter such interim orders as may be necessary in the interests of justice.
(b) The judge, on [motion] petition or request, shall postpone or continue a hearing to provide either party a reasonable opportunity, if one did not exist previously, for investigation and preparation regarding any new issue of fact raised in an amended [motion] petition or amended answer.
(c) the judge shall permit the defendant to appear in person at the hearing and shall provide the defendant an opportunity to have counsel.
(d) Upon the conclusion of the hearing the judge shall:
(1) determine all material issues raised by the defendant's [motion] petition and the Commonwealth's answer, or by the Commonwealth's motion to dismiss, if any;
(2) issue an order denying relief or granting a specific form of relief [and stating the grounds on which the case was determined,] and issue any supplementary orders appropriate to the proper disposition of the case[; and].
[(3) state on the record, or issue and serve upon the parties, findings of fact and conclusions of law on all materials issues.]
(e) If the judge disposes of the case in open court at the conclusion of the hearing, the judge shall advise the defendant on the record of the right to appeal from the final order disposing of the [motion] petition and of the time within which the appeal must be taken. If the case is taken under advisement, the judge shall advise the defendant of the right to appeal by certified mail, return receipt requested.
Official Note: Adopted February 1, 1989, effective July 1, 1989; amended ______ , effective ______ .
Comment [This rule replaces former Rule 1506.
With respect to ''material issues'' as used in this rule, see, e.g., Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth v. Rightnour, 469 Pa. 107, 364 A.2d 927 (1976); Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1975); Commonwealth v. Hayes, 462 Pa. 291, 341 A.2d 85 (1975); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Slavik, 449 Pa. 424 A.2d 920 (1972).]
The judge's power, under paragraph (a), to deny a hearing on a specific factual issue is intended to apply when an issue of fact has already been heard fully, but has never been determined. The judge need not rehear such an issue, but would be required to determine it under paragraph (d).
The 1996 amendment to paragraph (a)(1) requires a hearing on every Commonwealth motion to dismiss due to delay in the filing of a PCRA petition. See 42 Pa.C.S. § 9543(b), as amended in 1995.
Under the 1995 amendments to the PCRA, no discovery is permitted at any stage of the proceedings, except upon leave of the court with a showing of exceptional circumstances. 42 Pa.C.S. § 9545(d)(2).
Under other 1995 amendments to the Act, an order under the Act denying a petitioner final relief in a case in which the death penalty has been imposed is reviewable only by petition for allowance of appeal to the Supreme Court. 42 Pa.C.S. § 9546(d).
Committee Explanatory Reports:
Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2302 (May 18, 1996).
Rule 1509. Appeal.
An order granting, denying, dismissing, or otherwise finally disposing of a [motion] petition for post-conviction collateral relief shall constitute a final order for purposes of appeal.
Official Note: Adopted February 1, 1989, effective July 1, 1989; amended ______ , effective ______ .
Comment Disposition without a hearing under Rule 1507(a) and (b) constitutes a final order under this rule. A partial disposition under Rule 1507(c) is not a final order until the judge has fully disposed of all claims.
Under the 1995 amendments to the PCRA, an order under the Act denying a petitioner final relief in a case in which the death penalty has been imposed is reviewable only by petition for allowance of appeal to the Supreme Court. 42 Pa.C.S. § 9546(d).
Committee Explanatory Reports:
Report explaining the ______ , 1996 amendments published at 26 Pa.B. 2302 (May 18, 1996).
REPORT Amendments to Chapter 1500, Pa.Rs.Crim.P. 1501--1509 Procedures under the Post Conviction Relief Act Introduction
In 1995, the Governor signed into law Act 1995-32(SS1), effective January 16, 1996. This Act amends the Post Conviction Relief Act, 42 Pa.C.S. §§ 9542--9546, and creates ''unitary review'' for death penalty cases under the new Capital Unitary Review Act, 42 Pa.C.S. §§ 9570--9579. Early in 1996, the Committee reviewed Act 1995-32(SS1) and agreed that changes to Chapter 1500 were necessary to align Rules 1501--1509 with the amendments to the Post Conviction Relief Act2 .
In general, the proposed changes to Chapter 1500 serve two purposes. First, they align the text of the rules and the Comments with the statutory amendments. Second, additional revisions of the Comments alert the bench and bar to several PCRA amendments relating to pleading, discovery, and appellate review.
Discussion of Proposed Rule Changes
1. Committee Note to Chapter 1500
One of the issues raised in our review of Act 1995-32(SS1) was whether and to what degree this proposal should address procedures under the Capital Unitary Review Act. After a lengthy discussion, we concluded that the Rules of Criminal Procedure should continue to implement only the PCRA, and agreed to add a Committee Note after the Chapter title to make it clear that Chapter 1500 does not apply to proceedings under the new Capital Unitary Review Act, 42 Pa.C.S. §§ 9570--9579, but only to capital cases, see, e.g., 42 Pa.C.S. § 9578, and noncapital cases falling under the provisions of the Post Conviction Relief Act, 42 Pa.C.S. §§ 9542--9546.
2. Substitution of ''petition'' for ''motion'' throughout Chapter.
When new Chapter 1500 was drafted in 1988, see 38 Pa.B. 4235 (September 17, 1988), the Committee agreed to use the term ''motion'' throughout Chapter 1500 in accordance with the Court's express preference for that term. Id., at 4240. After reviewing the rules in Chapter 1500 and the PCRA amendments, the Committee concluded that the use of the term ''motion,'' while contributing to uniformity in one way, was confusing in light of the PCRA's consistent use of the word ''petition.'' For this reason, we are proposing that the term ''petition'' be used throughout Chapter 1500. In the text of the Rules 1503--1506 and Rule 1509 this is the only change.
3. Rule 1501. Initiation of Post-Conviction Collateral Proceedings.
Present Rule 1501 contains the filing procedures for initiating PCRA proceedings. Because the PCRA, as amended, contains time limits for filing PCRA petitions, 42 Pa.C.S. § 9545(b)(1) and (2), we have added a new paragraph to implement this provision. See Pa.R.Crim.P. 1501(1).
The Comment to Rule 1501 has been expanded to alert the reader to several PCRA amendments related to the initiation of PCRA proceedings.
(a) We have added a cross-reference to 42 Pa.C.S. § 9545(a), which prohibits a court from entertaining a request for any form of relief in anticipation of the filing of a PCRA petition.
(b) In a similar vein, we have added a cross-reference to 42 Pa.C.S. § 9545(d)(2), which prohibits discovery at any stage of the proceedings, except upon leave of court with showing of exceptional circumstances.
(c) Several paragraphs summarize the new PCRA timing requirements.
(1) The Comment refers the reader to the general one-year time limit for petitions filed on or after the effective date of the amendments to the PCRA, 42 Pa.C.S. § 9545(b)(1), and to the exceptions to that requirement, 42 Pa.C.S. § 9545(b)(1)(i)--(iii) and 42 Pa.C.S. § 9545(b)(2).
(2) The Comment also references the timing provision for those petitioners whose judgment became final on or before the effective date of the amendments, i.e., the petition is deemed to have been timely filed if the first petition is filed within one year of the effective date of the Act. See Act 1995-32(SS1), Sections 3 and 4.
(3) Finally, the Comment contains a cross-reference to 42 Pa.C.S. § 9545(b)(3), which provides that, for the purposes of the PCRA, a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania.
3. Rule 1502. Content of Petition for Post-Conviction Collateral Relief.
The text of Rule 1502, which sets forth in considerable detail the requisite contents of a PCRA petition, has been amended in two ways. First, we have added a new content requirement to implement 42 Pa.C.S. § 9545(d), which requires, if the petitioner wants an evidentiary hearing, that the petitioner include that request in the petition, accompanied by (1) a signed certification as to each intended witness, stating the witness's name, address, and date of birth, and the substance of the witness's testimony, and (2) any documents material to the witness's testimony.
Second, we recommend an amendment to paragraph (b), which currently reads:
Each ground relied upon in support of the relief requested shall be stated in the motion. Failure to state such a ground in the motion shall preclude the defendant from raising that ground in any subsequent proceeding for post-conviction collateral relief under these rules. (emphasis added)
We propose to delete the word ''subsequent'' to make it clearer that if the defendant does not state a ground relied upon in the petition, the defendant may not raise it later in a proceeding on that petition or in a proceeding on any subsequent petition.
The Comment has been revised in several ways.
(a) The present Comment sets forth, verbatim, the pleading requirements contained in 42 Pa.C.S. § 9453(a)(2) prior to the 1995 amendments. We have deleted these paragraphs completely, and have replaced them with the provisions in 42 Pa.C.S. § 9543(a)(2)--(4), as amended in 1995.
(b) The first paragraph, which contains rule history, has been deleted as no longer necessary.
(c) The second paragraph, which discusses the sentencing information required by paragraph (a)(6), has been revised to more completely mirror the statute, 42 Pa.C.S. § 9543(a).
[Continued on next Web Page] _______
1 A copy of Act 1995-32(SS1) has been included as an Appendix to this Report.
2 Hereinafter PCRA. A copy of Act 1995-32(SS1) appears in the Appendix to this Report.
[Continued from previous Web Page] (d) Finally, we have included a reference to the new statutory language prohibiting discovery except upon leave of court with a showing of exceptional circumstances. See 42 Pa.C.S. § 9545(d)(2).
4. Rule 1504. Appointment of Counsel; In Forma Pauperis.
Although no substantive changes have been made to the rule itself, we have added a new paragraph to the Comment to clarify the status of PCRA petitions filed after unitary review.
The right to appointment of counsel under Rule 1504 depends on whether the petitioner is filing a first petition or a second or later petition.3 If an indigent petitioner is filing a first petition, Pa.R.Crim.P. 1504(a) requires the court to appoint counsel. On a second or subsequent petition, however, the judge is only required to appoint counsel if the petitioner is indigent and if an evidentiary hearing is required. Pa.R.Crim.P. 1504(b).
As the Committee reviewed Rule 1504 in the context of Act 1995-32(SS1), a question arose as to the treatment of petitions filed under the PCRA after final disposition under the Capital Unitary Review Act. See 42 Pa.C.S. 9578. Because it can be argued that such petitions are, in a sense, ''first'' petitions under the PCRA, all other proceedings having been under the Capital Unitary Review Act, the Committee agreed that some clarification was needed. We have therefore added a Comment which states that a PCRA petition filed after final disposition under the Capital Unitary Review Act constitutes a second petition.
5. Rule 1505. Amendment and Withdrawal of Petition for Post-Conviction Collateral Relief.
The first paragraph of the Comment, which contains rule history, has been deleted as no longer necessary. Other changes to the Comment are stylistic only.
6. Rule 1506. Answer to Petition for Post-Conviction Collateral Relief.
In the second paragraph of the Comment, the second sentence has been deleted as more confusing than helpful.
7. Rule 1507. Disposition Without Hearing.
The text of Rule 1507 has been amended to reflect changes in PCRA requirements concerning the content of the court's order dismissing a petition without a hearing.
Present paragraph (d) contains a requirement that when a judge dismisses a petition without a hearing, the judge must state, in the order, the ground ''on which the case was determined.'' Pa.R.Crim.P. 1507(d)(1). This language was originally added to implement a statutory requirement to the same effect. See Committee Report at 18 Pa.B. 4239, 4242 (September 17, 1988). Because the 1995 PCRA amendments deleted this requirement, 42 Pa.C.S. § 9546, the Committee agreed to delete the parallel requirement from the rule.
The Comment to Rule 1507 has been revised in several ways.
(a) The first paragraph containing rule history has been deleted as no longer necessary.
(b) The cross-reference to 42 Pa.C.S. § 9545(b) has been revised to read: ''See 42 Pa.C.S. § 9545(b) for the timing requirements for subsequent petitions.''
(c) Cross-references to Rule 1508 (Hearing) and to 42 Pa.C.S. § 9543(b) have been added to make it clear that a PCRA petition may be dismissed due to delay in filing only upon a Commonwealth motion to dismiss and after a hearing.
(c) We have added a Comment to alert the bench and bar to the provision of 42 Pa.C.S. § 9546(b), as amended, which states that an order under the PCRA denying a petitioner final relief in a case in which the death penalty has been imposed is reviewable only by petition for allowance of appeal to the Supreme Court.
8. Rule 1508. Hearing.
Present Rule 1508 requires a hearing only on issues of material fact raised by the petition and answer, if any. We have amended paragraph (a) to implement 42 Pa.C.S. § 9543(b), which requires a hearing whenever the Commonwealth moves to dismiss a petition due to the defendant's delay in filing the petition. Pa.R.Crim.P. 1508(a)(2).
Paragraph (d) sets forth the actions which the court must take at the conclusion of a hearing held under the rule.
(a) Paragraph (d)(1) has been amended to make it clear that the judge must determine all issues raised, not only issues raised by the defendant's petition, but also issues raised by the Commonwealth's answer, and issues raised by the Commonwealth's motion to dismiss.
(b) We have deleted the requirement in paragraph (d)(2) that the judge state in the order the grounds on which the case was determined, because this statutory requirement was deleted when the PCRA was amended in 1995. See 42 Pa.C.S. 9546(b).
(c) We have also deleted paragraph (d)(3) because our review of its history revealed that it was an anomaly inadvertently carried over from original Rule 1506, adopted in 1968.
The Comment to Rule 1508 has been revised in several ways.
The first paragraph contains case law concerning what constitutes ''material issues'' under the rule, and was intended as an aid to the bench and bar when the rule was new. As such, the Committee agreed that it was no longer necessary.
Several new paragraphs highlight the 1995 amendments to the PCRA.
(a) The Comment underscores the statutory requirement that there must be a hearing on every Commonwealth motion to dismiss due to delay in the filing of a PCRA petition. See 42 Pa.C.S. § 9543(b).
(b) The Comment also cross-references the express statutory limitations on discovery. See 42 Pa.C.S. § 9545(d)(2).
(c) Finally, we have added a Comment to alert the bench and bar to the provision of 42 Pa.C.S. § 9546(b), as amended, which states that an order under the PCRA denying a petitioner final relief in a case in which the death penalty has been imposed is reviewable only by petition for allowance of appeal to the Supreme Court.
10. Rule 1509. Appeal.
The Comment has been revised to cross-reference 42 Pa.C.S. § 9546(b), as amended, which states that an order under the PCRA denying a petitioner final relief in a case in which the death penalty has been imposed is reviewable only by petition for allowance of appeal to the Supreme Court.
APPENDIX Special Session No. 1 of 1995
No. 1995-32SB 81
AN ACT
Amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, further providing for postconviction relief; and providing for unitary review in death penalty cases.
The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:
Section 1. Sections 9542, 9543, 9544, 9545 and 9546 of Title 42 of the Pennsylvania Consolidated Statutes are amended to read:
§ 9542. Scope of subchapter.
This subchapter provides for an action by which persons convicted of crimes they did not commit [or] and persons serving [unlawful] illegal sentences may obtain collateral relief [and for an action by which persons can raise claims which are properly a basis for Federal habeas corpus relief]. The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis. This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, nor is this subchapter intended to provide a means for raising issues waived in prior proceedings. Except as specifically provided otherwise, all provisions of this subchapter shall apply to capital and noncapital cases.
§ 9543. Eligibility for relief.
(a) General rule.--To be eligible for relief under this subchapter, [a person] the petitioner must plead and prove by a preponderance of the evidence all of the following:
(1) That the [person] petitioner has been convicted of a crime under the laws of this Commonwealth and is:
(i) currently serving a sentence of imprisonment, probation or parole for the crime;
(ii) awaiting execution of a sentence of death for the crime; or
(iii) serving a sentence which must expire before the person may commence serving the disputed sentence.
(2) That the conviction or sentence resulted from one or more of the following:
(i) A violation of the Constitution [of Pennsylvania or laws] of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused [an individual] the petitioner to plead guilty and the petitioner is innocent.
(iv) The improper obstruction by [Commonwealth] government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
[(v) A violation of the provisions of the Constitution, law or treaties of the United States which would require the granting of Federal habeas corpus relief to a State prisoner.]
(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and [that] would have [affected] changed the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.
(3) That the allegation of error has not been [previously litigated and one of the following applies:
(i) The allegation of error has not been waived.
(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.
(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.] previously litigated or waived.
(4) That the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.
(b) Exception.--Even if the petitioner [meets] has met the requirements of subsection (a), the petition shall be dismissed if it appears at any time that, because of delay in filing the petition, the Commonwealth has been prejudiced either in its ability to respond to the petition or in its ability to re-try the petitioner. A petition may be dismissed due to delay in the filing by the petitioner only after a hearing upon a motion to dismiss. This subsection does not apply if the petitioner shows that the petition is based on grounds of which the petitioner could not have [had knowledge] discovered by the exercise of reasonable diligence before the delay became prejudicial to the Commonwealth.
§ 9544. Previous litigation and waiver.
(a) Previous litigation.--For [the purpose] purposes of this subchapter, an issue has been previously litigated if:
[(1) it has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner did not appeal;]
(2) the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue; or
(3) it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.
(b) Issues waived.--For [the] purposes of this subchapter, an issue is waived if the petitioner could have raised it but failed to [raise it and if it could have been raised] do so before [the] trial, at [the] trial, during unitary review, on appeal[,] or in a [habeas corpus] prior state postconviction proceeding [or other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter].
§ 9545. Jurisdiction and proceedings.
(a) Original jurisdiction.--Original jurisdiction over a proceeding under this subchapter shall be in the court [in which the conviction was obtained.] of common pleas. No court shall have authority to entertain a request for any form of relief in anticipation of the filing of a petition under this subchapter.
[(b) Rules governing proceedings.--The Supreme Court may, by general rule, prescribe procedures to implement the action established under this subchapter but shall not expand, contract or modify the grounds for relief set forth in this subchapter.]
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
(3) For purposes of this subchapter, a judgment becomes final at the conclusion of direct review, including 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.
(4) For purposes of this subchapter, ''government officials'' shall not include defense counsel, whether appointed or retained.
(c) Stay of execution.--
(1) No court shall have the authority to issue a stay of execution in any case except as allowed under this subchapter.
(2) Except for first petitions filed under this subchapter by defendants whose sentences have been affirmed on direct appeal by the Supreme Court of Pennsylvania between January 1, 1994, and January 1, 1996, no stay may be issued unless a petition for postconviction relief which meets all the requirements of this subchapter has been filed and is pending and the petitioner makes a strong showing of likelihood of success on the merits.
(3) If a stay of execution is granted, all limitations periods set forth under sections 9574 (relating to answer to petition), 9575 (relating to disposition without evidentiary hearing) and 9576 (relating to evidentiary hearing) shall apply to the litigation of the petition.
(d) Evidentiary hearing.--
(1) Where a petitioner requests an evidentiary hearing, the petition shall include a signed certification as to each intended witness stating the witness's name, address, date of birth and substance of testimony and shall include any documents material to that witness's testimony. Failure to substantially comply with the requirements of this paragraph shall render the proposed witness's testimony inadmissible.
(2) No discovery, at any stage of proceedings under this subchapter, shall be permitted except upon leave of court with a showing of exceptional circumstances.
(3) When a claim for relief is based on an allegation of ineffective assistance of counsel as a ground for relief, any privilege concerning counsel's representation as to that issue shall be automatically terminated.
§ 9546. Relief and order.
(a) General rule.--If the court [finds] rules in favor of the petitioner, it shall order appropriate relief and issue supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence or other matters that are necessary and proper.
[(b) Grounds to be stated.--The order finally disposing of the petition shall state grounds on which the case was determined.
(c) Status of order.--The order constitutes a final judgment for purposes of review.]
(d) Review of order in death penalty cases.--[A final court] An order under this subchapter granting the petitioner final relief in a case in which the death penalty has been imposed shall be directly appealable [only] by the Commonwealth to the Supreme Court pursuant to its rules. An order under this subchapter denying a petitioner final relief in a case in which the death penalty has been imposed shall be reviewable only by petition for allowance of appeal to the Supreme Court.
Section 2. Chapter 95 of Title 42 is amended by adding a subchapter to read:
SUBCHAPTER D UNITARY REVIEW IN DEATH PENALTY CASES Sec.
9570. Short title of subchapter. 9571. Scope of subchapter. 9572. Representation of counsel. 9573. Time for petition; contents of petition. 9574. Answer to petition. 9575. Disposition without evidentiary hearing. 9576. Evidentiary hearing. 9577. Disposition and appeal. 9578. Subsequent petitions. 9579. Certification. § 9570. Short title of subchapter.
This subchapter shall be known and may be cited as the Capital Unitary Review Act.
§ 9571. Scope of subchapter.
(a) Capital unitary review.--This subchapter establishes the sole means of challenging proceedings that resulted in a sentence of death. The unitary review proceeding provided by this subchapter shall replace postappeal collateral review of death penalty cases with preappeal collateral review.
(b) Appointment of collateral counsel.--Under the action provided in this subchapter, a person sentenced to death shall be immediately entitled to new counsel for purposes of collateral review. The collateral proceeding shall occur in the trial court after the imposition of sentence and before appeal. The petitioner may raise any claim that could not have been raised previously, including claims of ineffective assistance of counsel.
(c) Capital appeal.--Direct appeal shall occur after the trial court has concluded collateral review. Claims raised on direct appeal shall be limited to those claims that were preserved at trial and that may be resolved on the basis of the record created up to and including sentencing. Collateral appeal shall occur simultaneously with direct appeal. Claims raised on collateral appeal shall be limited to claims that were preserved in the collateral proceeding in the trial court and to any other claim that could not have been raised previously, including claims of ineffective assistance of counsel on direct appeal.
(d) Limitation on subsequent petitions.--No further review shall be available except as provided in this subchapter.
(e) Capital case in which death penalty not imposed.--This subchapter does not apply to capital cases in which the death penalty was not imposed.
§ 9572. Representation of counsel.
(a) Collateral counsel.--Immediately after the formal imposition of sentence on all charges or within 30 days of the verdict of the death penalty, whichever occurs later, the court shall appoint new counsel for the purposes of collateral review, unless:
(1) the petitioner has elected to proceed pro se and the court finds, after a colloquy on the record, that the petitioner's election is knowing, intelligent and voluntary; or
(2) the petitioner retains counsel for the unitary review proceeding.
(b) Prior attorney.--No petitioner may be represented on collateral review, either in the trial court or on appeal, by an attorney, whether retained or appointed, who has represented the petitioner at any other stage of the proceedings, including direct appeal, unless the court finds, after a colloquy on the record, that the petitioner has knowingly, intelligently and voluntarily waived his right to challenge the effectiveness of that attorney's representation.
(c) Standards for appointment of counsel.--The Supreme Court shall adopt standards for the appointment of counsel in capital cases. These standards shall apply for the appointment of trial counsel, collateral review counsel and appellate counsel. When adopting the standards, the Supreme Court shall consider, where practicable, the following criteria:
(1) Counsel is admitted to practice in Pennsylvania.
(2) Counsel is an experienced and active trial practitioner with at least five years' litigation experience in the field of criminal law.
(3) Counsel has prior experience as counsel in a specified number of trials or other relevant proceedings.
(4) Counsel is familiar with the practice and procedure of the appropriate courts, including Federal courts of the jurisdiction.
(5) Counsel has demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases.
(6) Local practice for the appointment of counsel in capital cases. Absent standards established under this subsection, the court may appoint such counsel as it deems qualified, in accordance with any local rules or practices. The existence or applicability of or failure to comply with such standards shall not provide a basis for relief.
§ 9573. Time for petition; contents of petition.
(a) Filing date.--Any petition under this subchapter shall be filed within 120 days of the date the trial transcript is filed with the court. The court may, for good cause shown, grant extensions of time totaling no more than 90 days.
(b) Subsequent or untimely claims.--Any claim raised after the time specified in subsection (a) shall be dismissed unless it satisfies section 9578 (relating to subsequent petitions).
(c) Evidentiary hearing.--Where the petitioner requests an evidentiary hearing, the petition shall include a signed certification as to each intended witness stating the witness's name, address, date of birth and substance of testimony and shall include any documents material to that witness's testimony. Failure to substantially comply with the requirements of this subsection shall render the proposed witness's testimony inadmissible.
(d) Discovery.--Discovery shall be permitted, and no reasonable discovery request of the petitioner shall be denied except upon demonstration of exceptional circumstances justifying denial of the discovery requests.
(e) Claim for relief.--When a claim for relief is based on an allegation of ineffective assistance of counsel as a ground for relief, any privilege concerning counsel's representation as to that issue shall be automatically terminated.
§ 9574. Answer to petition.
The Commonwealth may file a written answer to the petition within 120 days of the filing and service of the petition. For good cause shown, the court may grant an extension of time of up to 90 days. Failure to file an answer shall not constitute an admission of any facts alleged in the petition.
§ 9575. Disposition without evidentiary hearing.
(a) Evidentiary hearing.--No more than 20 days after the Commonwealth answers the petition or, if no answer is filed, 20 days after the deadline for answering, the court shall determine whether or not an evidentiary hearing is warranted. An evidentiary hearing shall not be warranted unless controverted, previously unresolved factual issues material to petitioner's conviction or sentence exist.
(b) Written order.--Failure of the court to issue a written order within the period prescribed under subsection (a) shall constitute a determination that an evidentiary hearing is warranted on any controverted, previously unresolved factual issues material to petitioner's conviction or sentence.
(c) Disposing of petition.--If the determination is made that no evidentiary hearing is warranted, the court shall, no later than 90 days from the date of that determination, dispose of the petition, after oral argument if requested, and any postsentence motions filed under the Pennsylvania Rules of Criminal Procedure.
§ 9576. Evidentiary hearing.
(a) Order.--If the court determines that an evidentiary hearing is warranted, the court shall enter an order no more than 20 days after the Commonwealth answers the petition or, if no answer is filed, 20 days after the deadline for answering, setting a date for the hearing.
(b) Date.--The hearing shall be scheduled to occur not less than ten days and not more than 45 days from the date of the order setting the hearing. The court may, for good cause shown, grant leave to continue the hearing.
(c) Disposing of petition.--Not later than 90 days after the evidentiary hearing, the court shall dispose of the petition and any postsentence motions filed under the Pennsylvania Rules of Criminal Procedure.
§ 9577. Disposition and appeal.
(a) Capital unitary review.--Review by the Supreme Court under section 9711(h) (relating to review of death sentence) shall comprise direct appeal and collateral appeal. The common pleas court order disposing of the petition under this subchapter shall constitute the final judgement for purposes of this review.
(b) Briefs for petitioner.--Unless the petitioner has waived the right to new counsel on collateral review, separate briefs shall be filed for direct appeal and collateral appeal. The time for filing the collateral appeal brief shall begin to run from service of the petitioner's brief on direct appeal.
(c) Brief for the Commonwealth.--The Commonwealth shall file a brief in response to the petitioner's direct and collateral appeal briefs. The time for filing the Commonwealth's brief shall begin to run from service of the petitioner's brief on collateral appeal.
§ 9578. Subsequent petitions.
(a) Further review.--No further review shall be available unless a petition is filed under Subchapter B (relating to post conviction relief) alleging that:
(1) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution of the United States or laws of the United States or the Constitution of Pennsylvania or laws of this Commonwealth;
(2) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained in the exercise of due diligence; or
(3) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
(b) Exception petition.--Any petition invoking an exception provided in subsection (a) shall be filed within 60 days of the date the claim could have been presented.
§ 9579. Certification.
(a) General rule.--By presenting to the court, whether by signing, filing, submitting or later advocating, a pleading, written motion or other papers regarding a petition for collateral relief, an attorney or unrepresented party is certifying that, to the best of the person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the following:
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims and other legal contentions in it are warranted by existing law or by a nonfrivolous argument for extension, modifidation or reversal of existing law or the establishment of new law; and
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation.
(b) Sanctions.--If, after notice and a reasonable opportunity to respond, the court determines that this section has been violated, the court may impose an appropriate sanction on the attorneys, law firms or parties that have violated this section.
Section 3. This act shall apply as follows:
(1) The amendment of 42 Pa.C.S. §§ 9542, 9543, 9544, 9545 and 9546 shall apply to petitions filed after the effective date of this act; however, a petitioner whose judgment has become final on or before the effective date of this act shall be deemed to have filed a timely petition under 42 Pa.C.S. Ch. 95 Subch. B if the petitioner's first petition is filed within one year of the effective date of this act.
(2) The addition of 42 Pa.C.S. Ch. 95 Subch. D shall apply in all cases in which the death penalty is imposed on or after January 1, 1996.
Section 4. This act shall take effect in 60 days.
APPROVED--The 17th day of November, A.D. 1995.
THOMAS J. RIDGE
[Pa.B. Doc. No. 96-801. Filed for public inspection May 17, 1996, 9:00 a.m.] _______
3 For a discussion of the development of this rule, see the Committee explanatory Report, 18 Pa.B. 4239, 4241 (September 17, 1988).
