COMMONWEALTH of Pennsylvania, Appellee v. Kelvin X. MORRIS, Appellant.
Supreme Court of Pennsylvania.
May 1, 2003.
822 A.2d 684 | 573 Pa. 157
Argued Oct. 17, 2001.
Catherine Marshall, Amy Zapp, Philadelphia, for the Com. of PA, Appellee.
Before CAPPY, C.J., and ZAPPALA, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
OPINION
CHIEF JUSTICE CAPPY.
We granted a stay of execution in this case on June 21, 2001 in order to fully consider the appropriate parameters for granting or denying a stay of execution in a capital case in
A brief recapitulation of the procedural history is warranted to understand how this case is before our court.1
On November 30, 1983 a jury convicted appellee, Kelvin X. Morris, of first-degree murder and robbery. Following a penalty phase hearing, the jury sentenced him to death. New counsel was appointed and on direct appeal, this court affirmed. Commonwealth v. Morris, 522 Pa. 533, 564 A.2d 1226 (1989). On April 2, 1990, appellee filed his first PCRA petition. New counsel was appointed and the PCRA court denied relief on January 18, 1995. On appeal, this court affirmed. Commonwealth v. Morris, 546 Pa. 296, 684 A.2d 1037 (1996). On December 30, 1996, appellee filed a second PCRA petition. New counsel was appointed and filed an amended petition. While appellee‘s second petition was pending before the lower court, the Governor signed a death warrant scheduling appellee‘s execution for January 27, 2000. Appellee filed a Motion for a Stay of Execution with the PCRA court. On December 21, 1999, the PCRA court denied appellee‘s second PCRA petition on the basis that it was untimely. However, on that same date, the [PCRA] court granted appellee‘s motion for a stay of execution. Commonwealth v. Morris, 565 Pa. 1, 771 A.2d 721, 727-28 (2001) (hereinafter “Morris I“). The Commonwealth then filed an Emergency Petition to this court to review the trial court‘s stay order. Following oral argument, this court vacated the trial court‘s order staying the execution on the basis that the trial court failed to comply with the requirements of
1) Whether a petitioner must satisfy the dictates of
42 Pa.C.S. § 9545(c) as interpreted by this court in Commonwealth v. Morris, [565 Pa. 1, 771 A.2d 721 (Pa.2001)] in order to obtain a stay of execution from the Supreme Court of Pennsylvania.2) Whether this court has inherent powers to grant a stay to a petitioner who does not meet the dictates of
§ 9545(c) .
Order of the Supreme Court of Pennsylvania, 6/21/2001. We also instructed the parties to be prepared to submit appellate briefs relating to the pending PCRA petition at that time. Id.
Turning first to the issues raised in the Emergency Petition, Appellant argues that we are not bound by the PCRA because this court always has the inherent power to grant a stay of execution. Similarly, this court always has inherent powers to “enforce fundamental truths that this Nation and this Commonwealth hold to be self-evident: that ‘all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty ... and pursuing their own happiness‘.” Petitioner‘s Brief Concerning this Court‘s Powers to Grant Stays of Execution at 7 (citing
Appellant attempts to distinguish this court‘s opinion in Morris I by arguing that this court must issue a stay of execution in order to consider: whether the time requirements of the PCRA are met; any alternative bases for appellate jurisdiction outside the framework of the PCRA; or the merits of any substantive claim raised therein. Appellant asserts that a stay of execution is appropriate whenever an
The Commonwealth acknowledges that this court has an inherent power to grant stays of execution, but asserts that the pertinent question in this case is when that power may be used. According to the Commonwealth, section 9545(c) clearly indicates the legislature‘s intent to limit a court‘s authority to enter a stay of execution in capital cases and applies to all of the courts of this Commonwealth.
The Commonwealth next contends that Appellant‘s arguments have largely been settled by this court‘s opinion in Morris I. Moreover, a non-frivolous stay standard would allow a claimant to perpetually litigate his claims in state court, rather than ensuring some finality in the collateral review process.
The section of the PCRA at issue in this case provides:
(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 hear-
ing) and 9576 (relating to evidentiary hearing) shall apply to the litigation of the petition.
Before undertaking an analysis of the parties’ various arguments in this case, a helpful starting point is to briefly review the opinion in Morris I. In Morris I, we entertained the question of the PCRA court‘s power to issue a stay of execution outside the framework of section 9545(c). In Morris I, the trial court denied Morris‘s PCRA petition on the basis that it was untimely, but then granted the stay of execution. We granted the Commonwealth‘s request to appeal in order to consider whether the PCRA court properly granted the stay of execution, which did not comply with the requirements of section 9545(c). This issue necessarily required this court to ascertain whether the PCRA court could issue a stay of execution outside the parameters of section 9545(c).
In concluding that the PCRA court was bound by the provisions of section 9545(c), we first examined Morris‘s argument that the section violated his constitutional right to appeal. We explained that the legislature might limit constitutional rights, so long as those limits are reasonable. 771 A.2d at 732. We emphasized that one of the goals of the PCRA was to balance the competing interests between a claimant‘s right to review and the state‘s interest in finality. Id. at 734. At the time of a second or subsequent petition, the state‘s interest in finality is more compelling. Additionally, “the potential that appellee is merely using the process to delay the execution of his sentence is greater.” Id. With these considerations in mind, we then analyzed the specific requirements of section 9545(c), and concluded that the section placed reasonable limitations on a claimant‘s right to appeal a second or subsequent petition for collateral relief. Id. at 735-36.
We also entertained Morris‘s argument that the section violated the separation of powers doctrine. We indicated that the section was substantive in nature, rather than procedural, and thus, was a valid exercise of the legislature‘s authority. Id. at 737. Accordingly, we concluded that a PCRA court was
In order to give further guidance to the bench and bar, we then discussed the requirements that must be met before the PCRA court could enter a stay of execution pursuant to section 9545(c). First, we explained that a claimant must demonstrate that his or her underlying petition is timely or, when untimely, that it falls within one of the exceptions to the time requirement pursuant to
Applying these requirements to Morris, we concluded that the PCRA court erroneously granted a stay of execution outside the framework of the PCRA. The PCRA court determined that the petition was untimely, and thus, we determined that it could not also grant the stay of execution, since section 9545 required, inter alia, that the petition be timely filed. Accordingly, the trial court‘s order staying the execution was vacated. Id. at 742.
We now turn to a review of the issues currently presented. We must first consider Appellant‘s argument that section 9545 cannot alter this court‘s inherent power to issue stays of execution. According to Appellant, this court can and should disregard section 9545 whenever it is necessary to preserve the status quo. The Commonwealth, while acknowledging that this court has the inherent power to issue a stay of execution, replies that this court should follow the requirements of section 9545 in deciding whether to grant or deny a stay of execution in collateral capital matters.
To facilitate an assessment of the parties’ arguments in this matter, we will revisit the language of the stay provision at issue. Subsection 9545(c)(1) provides that “[n]o court shall have the authority to issue a stay of execution in any case except as allowed under this subchapter.” The introduction of this subsection with “[n]o court” makes clear that this provision is intended to apply to all courts of this Commonwealth.
Subsection 9545(c)(2) sets forth the requirements that must be met before a court of this Commonwealth can properly enter a stay of execution in a second or subsequent collateral matter. See
Appellant also presents a general challenge to the constitutionality of section 9545 by arguing that application of this section to his case would result in the violation of “fundamental truths” as guaranteed by the Pennsylvania Constitution. We have already concluded that section 9545(c) is constitutional as applied to the PCRA court in Morris I and we see no reason to revisit the same analysis in the instant opinion. Appellant fails to develop his argument in any meaningful fashion. Suffice it to say that Appellant has offered nothing in his argument to this court that would alter our prior analysis or would make the provision of section 9545(c) unconstitutional as applied to this court, but constitutional as applied to the courts below.
We next turn to Appellant‘s arguments which invite this court to declare that it will grant stays of execution even when the petition does not comply with the PCRA‘s jurisdictional or other substantive requirements. For example, Appellant urges this court to state that it can issue a stay of
In Tyler, the Court suggested that questions involving the retroactivity of a new constitutional rule were too complex to be decided within the thirty-day appeal period. Id. at 2483. Appellant‘s reliance on Tyler implies that questions of timeliness are similar to issues of retroactivity. We disagree. Unlike questions of retroactivity, questions of timeliness are jurisdictional threshold questions that are clearly delineated by the terms of the PCRA—the PCRA defines what constitutes a timely-filed petition. It is the claimant‘s burden to establish that a court has jurisdiction over the claims raised in the petition. Thus, any jurisdictional questions should be well fleshed out in advance and we believe that issues related to timeliness should be relatively easy to dispose of by the time they reach this court. In the event that this court is confronted with a complex question as to the timeliness of a PCRA petition, we can analyze the stay provision in context at that time.
Similarly, Appellant points out that not all claims will necessarily fall within the rubric of the PCRA. Rather, Appellant contends that some claims may be more properly addressed under habeas corpus or coram nobis and this court may need to grant a stay of execution outside the framework of the PCRA in order to address such claims. We have previously made clear that the PCRA subsumes the writ of habeas corpus and that habeas corpus provides an independent basis for relief only in those cases when there is no remedy under the PCRA.2 Commonwealth v. Fahy, 558 Pa.
Lastly, Appellant urges us to adopt a standard that would allow this court to grant a stay of execution to review any non-frivolous claims raised in a PCRA petition. Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986). In Brady, this court discussed the standard for staying criminal matters to appeal a double jeopardy claim. Ultimately, we concluded that “an appeal from the denial of a motion on double jeopardy grounds should not be permitted where the hearing court has considered the motion and made written findings that the motion is frivolous. Absent such a finding, an appeal may be taken from the denial of the motion.” 508 A.2d at 291. Appellant suggests that we adopt a similar “non-frivolous” standard in the context of collateral petitions in order to ensure that a claimant is not executed without receiving review of his claims of error. In other words, in Appellant‘s view, this court should grant a stay of execution whenever a claimant raises a non-frivolous issue for review. This standard is much more lenient than that suggested by the plain language of section 9545(c).
Appellant‘s argument overlooks that, as we held in Morris I, and as explained more fully in the concurring statement authored by Mr. Justice Castille in that same case, the standard for issuing a stay of execution enumerated in section 9545(c) applies to second or subsequent collateral proceedings. Id. at 734-35, 564 A.2d 1226; see id. at 745, 564 A.2d 1226 (Castille, J. concurring). In other words, a claimant has already had review of his substantive claims in a direct appeal and a first collateral appeal. Thus, at this stage in the proceedings, the claimant‘s interest in further review of his claims is less and it is the state‘s interest in finality of the
In Fahy, this court entertained a similar issue. Appellant therein requested that this court consider the merits of the claim whenever the claimant made a prima facie showing of a miscarriage of justice. Fahy, 737 A.2d at 223. In rejecting the claimant‘s contention, we explained that this court has no jurisdiction, regardless of the merits of the petition, to entertain an untimely petition. Id. Thus, Fahy similarly suggests that this court cannot ignore the jurisdictional time requirements of the PCRA regardless of the merits of the underlying petition. As Fahy rejected a “miscarriage of justice” standard exception to the time requirements of the PCRA, we are rejecting a “non-frivolous” standard for the issuing of a stay of execution.
Our conclusion today is not that all claimants are barred from raising any further claims at this stage in the proceedings, but rather, we conclude that in light of the competing interests of the parties at this stage in the proceedings, the additional restrictions that the legislature has placed on further review of a claimant‘s case are reasonable. We also express no view on whether section 9545(c) infringes on our inherent power to issue a stay of execution in those instances when a claim is not subsumed within the framework of the PCRA or when the PCRA is unconstitutional as applied to a particular claimant. Rather, pursuant to our holding today, we view section 9545(c) as a constitutional legislative attempt to balance the competing interests of the parties involved in a second or subsequent collateral matter. Accordingly, we accept the requirements of the stay provision set forth in section 9545(c) and will adhere to those requirements when considering a stay of execution related to a second or subsequent collateral petition pending before this court.
In order to properly review Appellant‘s claims, we must first determine whether this court has jurisdiction over the instant petition. There is no question that Appellant filed this petition outside the time requirements of the PCRA. However, Appellant asserts a general claim that his entire petition meets the exception to the time requirement expressed in section 9545(b)(1)(ii), which provides that:
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.
As we have previously and repeatedly explained, a claim of ineffective assistance of counsel does not save an otherwise untimely petition for review on the merits. Fahy, 737 A.2d at 223; see also Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780 (2000); Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000); Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 643 n. 5 (1998). For example, in Gamboa-Taylor, the appellant attempted a similar end-run around the time requirements of the PCRA by alleging that PCRA counsel‘s ineffectiveness was within the after-discovered evidence exception to the time requirements. In rejecting the appellant‘s argument, we explained “subsequent counsel‘s review of previous counsel‘s representation is not a newly discovered ‘fact’ entitling Appellant to the benefit of the exception for after-discovered evidence. In sum, a conclusion that previous counsel was ineffective is not the type of after-discovered evidence encompassed by the exception.” 753 A.2d at 785.
Appellant raises a similar claim in this case, but injects our holding in Albrecht into the argument. However, our holding in Albrecht does not alter the fundamental tenet that claims of ineffectiveness will not save an otherwise untimely petition.3 Peterkin, 722 A.2d at 643 n. 5. As we
In addition to formulating his claims in terms of PCRA counsel‘s ineffectiveness, Appellant raises eleven claims separately under the after discovered evidence and governmental interference exceptions to the time requirements.5 First, Appellant asserts that the Commonwealth withheld exculpatory evidence regarding the juvenile record of Ronald Johnson, one of the Commonwealth‘s main witnesses. According to Appellant, due to the Commonwealth‘s failure to disclose this exculpatory material, this claim could not be raised in prior litigation. Further, this claim is timely because “the case). It would be anomalous to reach a different result due to the alleged ineffectiveness of PCRA counsel, especially since we have yet to declare that a claimant has a constitutional right to collateral counsel. Rather, at this time, the right to effective assistance of collateral counsel is derived from the Rules of Criminal Procedure. See Albrecht supra.
Appellant fails to make clear that trial counsel did not have access to this information at the time of trial. In fact, his allegations appear to contradict the jurisdictional argument he makes above, since he asserts that the trial court precluded defense counsel from demonstrating Johnson‘s bias and motive to the jury. Indeed, as the Commonwealth notes in the “Amended Petition,” Appellant appears to acknowledge that defense counsel began to cross-examine Johnson about his juvenile record, but the trial court did not allow such cross-examination. See Amended Petition for Habeas Corpus Relief at 53, ¶ 124; N.T. 11/21/1983, pp. 30-31. Accordingly, Appellant cannot establish that this claim was presented within 60 days of the date the claim could have been presented as required by
Next, Appellant alleges that the Commonwealth withheld various other exculpatory evidence including other evidence related to Johnson; exculpatory information from Anthony Stokes; polygraph evidence that undermined Artie Morris‘s alibi testimony6; and test results related to physical evidence that was allegedly discarded by the perpetrator of the offense.
Appellant first argues that the Commonwealth withheld various other exculpatory evidence related to Johnson‘s testimony in violation of Brady. In order for a defendant to establish the existence of a Brady violation, he must establish that there has been a suppression by the prosecution of either exculpatory or impeachment evidence that was favorable to the accused, and that the omission of such evidence prejudiced the defendant. See Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294, 305 (2002). Further, no Brady violation occurs where the parties had equal access to the information or if the defendant knew or could have uncovered such evidence with reasonable diligence. Id.
Appellant simply fails to establish that the Commonwealth suppressed this evidence in violation of Brady. Appellant raises a myriad of claims related to Johnson‘s testimony. For example, Appellant asserts that the police threatened Johnson with prosecution and promised him leniency in exchange for his testimony. However, Appellant does not make clear that this information was not available at trial or that defense counsel could not have uncovered this evidence with reasonable diligence. Thus, Appellant has failed to establish whether this claim was raised within sixty days of the time it could have been presented. Additionally, Appellant fails to explain how the omission of such evidence prejudiced him. Accordingly, we are without jurisdiction to review Appellant‘s claim.
Second, Appellant argues that the police threatened Commonwealth witness, Anthony Stokes, and pressured him into identifying Appellant as the shooter. Again, there is no indication that this information was not available at the time of trial. Moreover, by Appellant‘s own admission, Stokes did not identify Appellant as the shooter at trial. See Amended Petition for Habeas Corpus Relief at 63, ¶ 146. Indeed, a review of the record indicates that Stokes did not testify at trial nor was his statement admitted at trial. Thus, Appellant cannot establish that he was prejudiced by any omission.
Third, Appellant asserts that the Commonwealth committed a Brady violation when it failed to reveal information that Regina Handy, who was Artie Morris‘s alibi witness, had failed a polygraph examination regarding the fact that she was with Artie Morris at the time of the shooting. Handy did not testify at trial. According to Appellant, the Commonwealth should have revealed this information to the defense so that he could have put Handy on the stand to testify that she was not with Artie Morris at the time of the shooting. However, as Appellant admits, Handy was told she had failed the
Fourth, Appellant asserts that the Commonwealth has suppressed the results of testing of a yellow bag that was seized at the scene of the crime. Appellant raised a similar claim in his first PCRA alleging that trial counsel was ineffective for failing to “attempt to discover whether the police recovered a yellow plastic bag that eyewitnesses described him as carrying and, if so, whether it bears detectable fingerprints.” Morris, 684 A.2d at 1045. We dismissed this claim since it was entirely speculative, as Appellant did not show that the yellow bag even existed. Appellant now attempts to relitigate this claim by alleging that the Commonwealth has never revealed the results of any tests performed on the bag. Again, however, Appellant has failed to establish that the yellow bag even existed. More importantly, this claim of error has been previously litigated and Appellant cannot establish that he is entitled to relief on a previously litigated claim. See
Appellant next raises two arguments based upon racial discrimination. First, Appellant asserts that recent revelations, i.e., the “McMahon tape”7, regarding the Philadelphia District Attorney‘s Office revealed a policy of racial discrimination in jury selection by members of that office. Second, Appellant argues that a recent study by Professors David Baldus and George Woodworth (hereafter “Baldus/Woodworth study“) establishes that the overall odds that an African-American defendant will be sentenced to death in
Appellant‘s first argument has been repeatedly rejected by this court on the basis that the mere existence of the tape does not demonstrate that there was prejudice in a particular case. Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 443 n. 10 (1999); see also Commonwealth v. Marshall, 570 Pa. 545, 810 A.2d 1211, 1228 (2002); Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 588-89 (2000). Other than bald assertions, Appellant fails to provide any argument as to how this policy affected the jury selection in his case. Similarly, this court has repeatedly rejected speculative arguments based on the Baldus/Woodworth study. See, e.g., Marshall; Lark. Again, Appellant does not provide a link between the study and the facts and circumstances of his particular case.
Appellant also asserts that he is entitled to relief because the penalty phase jury instructions and the verdict sheet unconstitutionally indicated that the jury had to unanimously find mitigating circumstances in violation of Mills v. Maryland, 486 U.S. 367, 374-75, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). According to Appellant, this court should review his claim because we reviewed a similar untimely claim in Commonwealth v. Cross, 555 Pa. 603, 726 A.2d 333 (1999). Appellant overlooks that in Cross, this court specifically gave the parties time to file a supplemental brief on this matter in order to consider the effect of a new decision by the Third Circuit, Frey v. Fulcomer, 132 F.3d 916 (3d Cir.1997). 726 A.2d at 337. Ultimately, we disagreed with the conclusion of the Third Circuit and held that Frey had no effect on the instruction in Cross. Although we reviewed the merits of the appellant‘s claim in Cross, we did so only to review the effect of the decision in Frey. Following Cross, there is no longer a reason to review claims of error pursuant to the decision in Frey, since we rejected the argument that we must follow the decision in Frey and instead reiterated that the proper standard was that stated in Mills. Id.; see also Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 450 n. 15 (1999). Accordingly, Appellant cannot establish that this claim was raised
Next, Appellant argues that counsel was ineffective for failing to properly investigate and present evidence related to one of the Commonwealth‘s key witnesses, James Willie. According to Appellant, counsel was unprepared to rebut the Commonwealth‘s evidence that suggested that forgery charges were falsely brought in order to influence Willie‘s trial testimony and such failure was compounded as a result of governmental interference as the Commonwealth had a duty to correct erroneous testimony and not argue false inferences to the jury. However, what is clear from Appellant‘s argument is that this claim is based upon counsel‘s failure to investigate rather than the Commonwealth‘s interference. Indeed, Appellant alleges that had counsel properly investigated he could have learned of the alleged forgeries prior to trial. Thus, this information was clearly available to Appellant at the time of trial and Appellant‘s attempt to cloak this claim as one of “governmental interference” misses its mark.
Appellant next asserts that he is entitled to discovery and an evidentiary hearing regarding witness participation in the Philadelphia District Attorney‘s Office Witness Security Program, which allegedly entitled witnesses to economic benefits in exchange for their testimony. Appellant argues that the failure to previously raise this claim was the result of interference by government officials. Again, similar to the racial discrimination claims raised herein, this court has rejected these speculative claims in the absence of any allegations tying the witnesses in a particular case to the District Attorney‘s policy of paying for their services. Lark, 746 A.2d at 590-91.
Lastly, Appellant asserts that “upon information and belief” the assistant district attorney who prosecuted Appellant was a relative of the owners of the Pep Boys store where this crime occurred and that such a relationship constitutes a
For the reasons stated herein, we conclude that we are without jurisdiction to review the instant petition. Accordingly, we cannot continue the stay in this matter, as there is no “petition for postconviction relief which meets all the requirements of this subchapter” currently pending before us. The stay of execution is hereby vacated. Furthermore, we affirm the order of the PCRA court denying Appellant‘s second Petition for Post Conviction Relief at this time.
Former Chief Justice FLAHERTY did not participate in the consideration or decision of this case.
Former Chief Justice ZAPPALA did not participate in the decision of this case.
Justice CASTILLE files a concurring opinion.
Justice SAYLOR files a concurring opinion.
JUSTICE CASTILLE CONCURRING.
I join in the Majority Opinion, with the exception of certain minor points of disagreement addressed below. I also write to address further: (1) this Court‘s inherent power to issue a stay of execution; (2) the validity of this Court‘s prior stay order; and (3) the reasons why I believe
From the moment this Court issued the stay of execution in this case on June 21, 2001, over my dissent, the question of our “inherent power” to do so became moot at best. Since the Majority does not suggest that our stay order was authorized under
In my view, this Court has the inherent power to grant a stay in any case in order to properly perform our constitutional duty. But, the contours of the power cannot be divorced from the case in which it is requested to be exercised. In this case, the General Assembly has specifically spoken to the availability of a stay in one narrow context: litigation of a serial PCRA petition. As the Majority notes, we held in Commonwealth v. Morris, 565 Pa. 1, 771 A.2d 721 (2001) (Morris I), that
It is not an attack upon the independence of the judiciary for the General Assembly, which created a limited right to collateral review via the PCRA, and an even more limited right to pursue a serial PCRA petition such as this one, to pass substantive legislation which has the collateral effect of placing reasonable limitations upon this Court‘s inherent stay
The important preliminary question in the aftermath of our stay order is whether, in a system of separated powers such as that which undergirds our governing scheme, we should have entered the stay order on June 21, 2001. The Majority clearly recognizes this question, see op. at 174, 822 A.2d at 694 (“we must now consider whether the stay of execution was warranted“), but never answers it directly. Instead, the Majority decides the merits of the underlying appeal (i.e., whether the PCRA court was correct in concluding that the serial PCRA petition was time-barred), and only then states “we cannot continue the stay in this matter” and vacates it. Op. at 182, 822 A.2d at 699. I would confront the predicate question directly and acknowledge that our previous order was erroneously entered, since
The bottom line here is that appellant was never entitled to a stay of execution—just as we held in Morris I that the
Turning from the question of the propriety of our previous stay order to the substance of the statutory stay standard, I do not join in the Court‘s dicta concerning possible exceptions to the statute arising from “inherent powers,” as no such circumstance is presented here and the dicta inevitably will invite abuse in future cases. Op. at 165, 822 A.2d at 691. I do agree with the Majority that, in order to secure a stay of execution in connection with an appeal from the dismissal of a serial PCRA petition, the petitioner must make “a strong showing of likelihood of success on the merits.” I note that the Majority‘s plain language approach is consistent with that set forth in my concurring opinion in Morris I: i.e., the Majority applies the actual PCRA stay language, rather than invoking the test employed by federal courts construing federal habeas corpus appeal standards. See Morris I, 771 A.2d at 746-750 (Castille, J., concurring) (discussing distinction in purpose and meaning of standards). The Majority‘s decision in this regard is wise. A case recently decided by the U.S. Supreme Court demonstrates just how changeable and unpredictable the federal habeas appeal standard is. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). As I noted in Morris I, it is preferable to follow the plain language of
Finally, on the question of whether appellant has satisfied any of the exceptions to the PCRA time-bar, I join the Majority Opinion, which holds that he has not and, accordingly, neither the PCRA court nor this Court has jurisdiction to entertain this serial PCRA petition.
Subject to the foregoing qualifications, I join the Majority Opinion.
JUSTICE SAYLOR CONCURRING.
I concur in the result, as I did in Morris I. My most substantial point of difference with these decisions is with the
Nevertheless, I am able to join the majority in approving