720 A.2d 1015 | Pa. | 1997
Dissenting Opinion
dissenting.
For the reasons set forth below, I wish to disassociate myself from the Court’s entry of a stay, granting of review, and listing of this matter for oral argument.
By way of background, as a result of inexplicable tactics by the attorneys purporting to act on petitioner Gary Heidnik’s behalf only two days before Heidnik was scheduled to be executed,
A per curiam order temporarily staying Heidnik’s execution pending further action by this Court was entered by this Court on April 18,1997. The Commonwealth attempted to have this Court’s stay order vacated by the U.S. Supreme Court but its motion was dismissed at approximately 12:40 a.m., April 19,1997.
The entry of a stay to allow further review of this matter under the circumstances of this case is unnecessary. With respect to the “Next Friend” issue, this Court has already stated that it finds the standards of Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) as “persuasive” and allowed the execution of Keith Zettle-moyer based upon its holding that Whitmore v. Arkansas precluded “Next Friend” standing in Zettlemoyer. See Commonwealth v. Zettlemoyer, No. 107 Capital Docket (filed May 2, 1995). Notwithstanding this Court’s adoption of the Whitmore standard in 1995, resulting in an execution, three members of this Court at this time now disregard the standard insofar as it is to be applied to Heidnik’s execution now pending.
Furthermore, in order for a stay to be entered, the moving party must show that it is likely to prevail on the merits. Commonwealth v. Martorano, 535 Pa. 178, 634 A.2d 1063, 1066 (1993). This standard has plainly not been met. In view of the order in Zettle-moyer, it is not likely that Heidnik will prevail on the merits with respect to the “Next Friend” issue, unless of course, this Court chooses to reverse it’s prior holding. Since there is virtually no merit to the “Next Friend” issue, third parties, quite simply, have no standing to seek review or otherwise make any filing on behalf of Heidnik. He has specifically stated that he does not want third parties intervening on his behalf to stop his execution.
Accordingly, the application to stay Heid-nik’s execution should be denied and no further review should be permitted by filings made by third parties against Heidnik’s wishes. I would further note that eleventh hour tactics such as those employed by Mr. Ñolas and his colleagues can unnecessarily jeopardize the interests of a client, and are inexcusable, especially where the interests at stake are literally a matter of life or death.
NEWMAN, J., joins in this dissenting statement.
. The warrant was signed by Governor Ridge on March 20, 1997. Heidnik’s judgment of sentence was affirmed by this Court in 1991. Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687 (1991).
Lead Opinion
ORDER
And now this 19th day of April, 1997, as a result of an equally divided court, the temporary stay of execution entered April 18, 1997 is LIFTED. The Petition for a Stay of Execution is GRANTED. The Petition for Review Pursuant to this Court’s Supervisory and/or King’s Bench Powers is GRANTED. It is further ORDERED that the party seeking to proceed on Gary Heidnik’s behalf as “Next Friend” file a brief by 9:00 a.m., Monday, April 21, 1997, addressing the order of the Court of Common Pleas in addition to the following issues:
1. Whether Pennsylvania recognizes the concept of “Next Friend” standing under state jurisprudence;
2. If so, what are the standards under which “Next Friend” standing is recognized under state jurisprudence;
3. Whether standards for “Next Friend” standing under state jurisprudence differ from the standards under federal jurisprudence; and
4. Whether this Court should adopt the federal standard.
The Commonwealth shall have until 5:00 p.m. Wednesday, April 23, 1997, to file its reply brief- This matter is to be listed for oral argument during the April 1997 session.
