1. (A) If the parties agree, the issue of the defendant’s mental retardation precluding imposition of a sentence of death shall be determined by the judge after a pretrial evidentiary hearing.
2. (B) The defendant shall appear in person with counsel at the hearing.
3. (C) The defendant shall have the burden of going forward with the evidence.
4. (D) No later than the beginning of the evidentiary hearing, the judge shall advise the defendant that, by agreeing to have the issue of his or her mental retardation decided pretrial, the defendant, if found not mentally retarded and later convicted, will not be permitted to seek a preclusion of the imposition of a sentence of death due to mental retardation with a jury. In these cases, however, the defendant may introduce relevant evidence concerning his or her mental state at the guilt phase and the penalty phase, including evidence in support of statutory mitigation.
5. (E) The attorney for the Commonwealth and the defendant’s attorney may introduce evidence and cross-examine any witness, including the examining mental health experts. The judge may call and interrogate witnesses as provided by law.

6. (F) Within 30 days of the completion of the evidentiary hearing, the judge shall enter an order finding either that the defendant is mentally retarded and therefore is precluded from receiving a sentence of death or that the defendant is not mentally retarded.

   Comment

   In Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (2011), the Pennsylvania Supreme Court held that, pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), the parties may agree to a pretrial determination of the defendant’s ineligibility for the death penalty to be made by the trial judge. The defendant has the burden of proof by a preponderance of the evidence to prove mental retardation. See Commonwealth v. Sanchez, 614 Pa. at 65, 36 A.3d at 62-63. If the trial judge finds the defendant is eligible for the death penalty, the defendant may still introduce relevant evidence concerning his or her mental state during the guilt and penalty phases of trial, including evidence in support of statutory mitigation.

   Official Note

   New Rule 843 adopted July 31, 2013, effective October 1, 2013.

   Committee Explanatory Reports:

   Final Report explaining the July 31, 2013 adoption of the new rule published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).

Source

The provisions of this Rule 843 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.