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Rule 909 – Procedures for Petitions in Death Penalty Cases: Stays of Execution of Sentence; Hearing; Disposition

May 14, 2021 | Criminal Procedure, Pennsylvania

(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) 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.
(B)Hearing; Disposition

(1) No more than 20 days after the Commonwealth files an answer pursuant to Rule 906(E)(1) or (E)(2), or if no answer is filed as permitted in Rule 906(E)(2), within 20 days after the expiration of the time for answering, the judge shall review the petition, the Commonwealth’s answer, if any, and other matters of record relating to the defendant’s claim(s), and shall determine whether an evidentiary hearing is required.
(2) If the judge is satisfied from this review that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings,

(a) the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal.
(b) The defendant may respond to the proposed dismissal within 20 days of the date of the notice.
(c) No later than 90 days from the date of the notice, or from the date of the defendant’s response, the judge shall issue an order:

(i) dismissing the petition;
(ii) granting the defendant leave to file an amended petition; or
(iii) ordering that an evidentiary hearing be held on a date certain.

The order shall be filed and served as provided in Rule 114.

(3) If the judge determines that an evidentiary hearing is required, the judge shall enter an order setting a date certain for the hearing, which shall not be scheduled for fewer than 10 days or more than 45 days from the date of the order. The judge may, for good cause shown, grant leave to continue the hearing. No more than 90 days after the conclusion of the evidentiary hearing, the judge shall dispose of the petition.
(4) When the 90-day time periods in paragraphs (B)(2)(c) and (B)(3) must be delayed, the judge, for good cause shown, may enter an order extending the period for not longer than 30 days.
(5) If the judge does not act within the 90 days mandated by paragraphs (B)(2)(c) and (B)(3), or within the 30 day-extension permitted by paragraph (B)(4), the clerk of courts shall send a notice to the judge that the time period for disposing of the petition has expired. The clerk shall enter the date and time of the notice on the docket, and shall send a copy of the notice to the attorney for the Commonwealth, the defendant, and defense counsel, if any.
(6) If the judge does not dispose of the defendant’s petition within 30 days of the clerk of courts’ notice, the clerk immediately shall send a notice of the judge’s non-compliance to the Supreme Court. The clerk shall enter the date and time of the notice on the docket, and shall send a copy of the notice to the attorney for the Commonwealth, the defendant, and defense counsel, if any.
(7) When the petition for post-conviction collateral relief is dismissed by order of the court,

(a) the clerk immediately shall furnish a copy of the order by mail or personal delivery to the Prothonotary of the Supreme Court, the attorney for the Commonwealth, the defendant, and defense counsel, if any.
(b) The order shall advise the defendant of the right to appeal from the final order disposing of the petition, and of the time within which the appeal must be taken.

234 Pa. Code ยง 909

Committee Explanatory Reports:

Final Report explaining the August 11, 1997 adoption of new Rule 1509 published with the Court’s Order at 27 Pa.B. 4305 (August 23, 1997) .

Final Report explaining the July 23, 1999 amendments concerning stays published with the Court’s Order at 29 Pa.B. 4167 (August 7, 1999) .

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 February 12, 2002 amendments concerning extensions of time and sanctions published with the Court’s Order at 32 Pa.B. 1174 (March 2, 2002) .

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

Final Report explaining the July 27, 2012 amendments to paragraph (2) (c) concerning orders and the revision of the Comment concerning appeals nunc pro tunc published with the Court’s Order at 42 Pa.B. 5349 (August 18, 2012) .