Section 908. Hearing

(A) Except as provided in Rule 907, the judge shall order a hearing:

(1) whenever the Commonwealth files a motion to dismiss due to the defendant’s delay in filing the petition; or

(2) when the petition for post-conviction relief or the Commonwealth’s answer, if any, raises material issues of fact. However, 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.

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 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 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 determine all material issues raised by the defendant’s petition and the Commonwealth’s answer, or by the Commonwealth’s motion to dismiss, if any.

(1) If the judge dismisses the petition, the judge promptly shall issue an order denying relief. The order shall be filed and served as provided in Rule 114.

(2) If the judge grants the petition, the judge promptly shall issue an order granting a specific form of relief, and issue any supplementary orders appropriate to the proper disposition of the case. The order shall be filed and served as provided in Rule 114.

(E) If the judge disposes of the case in open court in the presence of the defendant 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 petition and of the time within which the appeal must be taken. If the case is taken under advisement, or when the defendant is not present in open court, the judge, by certified mail, return receipt requested, shall advise the defendant of the right to appeal from the final order disposing of the petition and of the time limits within which the appeal must be filed.

Comment

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 already has 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 1997 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).

When the disposition reinstates a defendant’s direct appeal rights nunc pro tunc, the judge, pursuant to paragraph (E), also must advise the defendant that a new notice of appeal must be filed within 30 days of the order reinstating the direct appeal rights.

The clerk of courts must comply with the notice and docketing requirements of Rule 114 with regard to any orders entered pursuant to this rule.

See also Rule 909 for procedures in death penalty cases.

Except as provided in Rule 902(E)(2) for first counseled petitions in death penalty cases, no discovery is permitted at any stage of the proceedings, except upon leave of the court with a showing of exceptional circumstances. See 42 Pa.C.S. § 9545(d)(2).

Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service’s return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.

Official Note

Rule 1508 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; renumbered Rule 908 and amended March 1, 2000, effective April 1, 2001; Comment revised September 18, 2008, effective February 1, 2009; amended July 27, 2012, effective September 1, 2012.

Committee Explanatory Reports:

Final Report explaining the August 11, 1997 amendments published with the Court’s Order at 27 Pa.B. 4305 (August 23, 1997).

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

Final Report explaining the Setpember 18, 2008 revision of the Comment concerning the United States Postal Service’s return receipt electronic option published with the Court’s Order at 38 Pa.B. 5428 (October 4, 2008).

Final Report explaining the July 27, 2012 amendments to paragraphs (D) and (E) concerning orders and notice to the defendant, and the proposed revision of the Comment concerning appeals nunc pro tunc published with the Court’s Order at 42 Pa.B. 5349 (August 18, 2012).

The provisions of this Rule 908 amended September 18, 2008, effective February 1, 2009, 38 Pa.B. 5425; amended July 7, 2012, effective September 1, 2012, 42 Pa.B. 5347. Immediately preceding text appears at serial pages (338924) to (338925).