Com. v. Abdul-Salaam

• Decision Date: 13 December 2002
• Citation: 812 A.2d 497,571 Pa. 219
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Seifullah ABDUL-SALAAM, Appellant.
• Court: Pennsylvania Supreme Court

812 A.2d 497

571 Pa. 219

COMMONWEALTH of Pennsylvania, Appellee v. Seifullah ABDUL-SALAAM, Appellant.

Supreme Court of Pennsylvania.

Argued December 3, 2002.

Decided December 13, 2002.

Robert Brett Dunham, Michael Wiseman, Martha Josephine Swan, Philadelphia, for appellant Seifullah Abdul-Salaam.

Jamie Keating, for appellee, Com. of PA.

Before: ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

Justice CAPPY.

Appellant, Seifullah Abdul-Salaam, filed an Emergency Motion for a Stay of Execution or Establishment of Expedited Briefing Schedule. Thereafter, this court scheduled oral argument for December 3, 2002, related to the jurisdiction of this court to entertain one of Appellant's claims. Following oral argument on December 3, 2002, by order dated December 4, 2002, we denied the Stay of Execution noting that an opinion would follow. This opinion is filed in support of that order.

The procedure underlying the instant matter is relatively straightforward. On March 16, 1995, Appellant was convicted of first-degree murder and sentenced to death. This court affirmed the judgment of sentence on June 18, 1996. Commonwealth v. Abdul-Salaam, 544 Pa. 514, 678 A.2d 342 (1996). On May 13, 1997, Appellant filed a first petition for post-conviction relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. The PCRA court denied that petition on November 12, 1998. On December 31, 2001, this court affirmed the PCRA court's order denying Appellant's petition for post-conviction relief. Commonwealth v. Abdul-Salaam, ___ Pa.___, 808 A.2d 558 (2001). Appellant then filed a timely Application for Reconsideration, which was denied on September 20, 2002. Prior to this court's ruling on the Application for Reconsideration, Appellant filed a second petition for Habeas Corpus Relief and Statutory Post-Conviction Relief on February 28, 2002.

On October 22, 2002, the Governor signed a warrant of execution. Appellant's execution was scheduled for December 12, 2002. Having had no disposition of his second petition, on November 6, 2002, Appellant filed with the PCRA court a Praecipe for Entry of Adverse Order Pursuant to Pennsylvania Rule of Appellate Procedure 301(e)(allowing party to file a praecipe "[w]here the exigency of the case is such as to impel an immediate appeal and the party intending to appeal an adverse action is unable to secure the formal entry of an appealable order pursuant to the usual procedures...."). On that same date, Appellant also filed a Notice of Appeal and accompanying documents in the lower court. On November 8, 2002, the PCRA court issued an opinion "Pursuant to Rule 1925." The PCRA court held that the Praecipe for Entry of Adverse Order had the effect of removing jurisdiction from the court.¹

Appellant filed the instant Emergency Motion for a Stay of Execution or Establishment of Expedited Briefing Schedule before this court on November 8, 2002. In his Motion, Appellant argued that this court has jurisdiction over one of his claims, which raised a constitutional question, pursuant to 42 Pa.C.S. § 9545(b)(1)(iii). Specifically, Appellant argued that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), created a new rule of constitutional law, which should be applied retroactively to his case. Appellant also argued that the remaining claims raised in his second petition entitled him to a stay and full appellate review.

On November 20, 2002, we issued an Order holding the Motion for Stay of Execution in abeyance. In order to determine whether Appellant was entitled to relief on this Motion, this court granted limited oral argument to explore the following two questions:

1) Whether the language "has been held" in 42 Pa.C.S. § 9545(b)(1)(iii) requires that a determination of retroactivity be made prior to the petitioner filing his PCRA petition. See, e.g., Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001)

.

2) Whether Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) apply retroactively to collateral matters presented pursuant to 42 Pa.C.S. § 9545(b)(1). See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)

.

For the reasons discussed below, we deny the stay of execution.

The PCRA requires that in order for a court to issue a stay of execution in a collateral matter, "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." 42 Pa.C.S. § 9545(c). In order for a petitioner to show that he meets the requirements of this subchapter, the petition must be timely filed. Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 915 (2000). This time requirement is jurisdictional. See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998)

; see also Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 222 (1999). Pursuant to the PCRA, a petitioner must prove that

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:

(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;

(ii) 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; or

(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1). Thus, pursuant to § 9545(b), the petition must be filed within one year of the date that the judgment became final, or a petitioner must prove one of the exceptions to the time requirement pursuant to subsections (i)-(iii).

In this case, Appellant argues that the constitutional claim raised in his petition meets the exception in subsection (iii). According to Appellant, the language "has been held" in subsection (iii) does not require that the same court that recognized the new constitutional right also determine that the right is retroactive; rather, he claims that this section is satisfied even when the right at issue is held to be retroactive in the case before the court. In other words, accepting Appellant's interpretation, any Pennsylvania court could rule on the retroactivity question first and then, in the same case, decide the merits of the claim.

The Commonwealth responds that the language "has been held" for purposes of subsection (iii) requires that the determination of retroactivity be made prior to a petitioner filing the PCRA petition based upon the exception contained in subsection (iii). In construing subsection (iii), as with any question of statutory construction, we must begin with the Rules of Statutory Construction. A statute's words and phrases are to be construed according to their common and approved usage, and where the words of a statute are clear and free from ambiguity, the letter of the statute may not be disregarded. See 1 Pa.C.S. §§ 1903(a), 1921(b); Commonwealth v. MacPherson, 561 Pa. 571, 752 A.2d 384, 391 (2000).

Subsection (iii) of Section 9545 has two requirements. First, it provides that the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or this court after the time provided in this section. Second, it provides that the right "has been held" by "that court" to apply retroactively. Thus, a petitioner must prove that there is a "new" constitutional right and that the right "has been held" by that court to apply retroactively. The language "has been held" is in the past tense. These words mean that the action has already occurred, i.e., "that court" has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed.

The inquiry does not necessarily end with the plain language of a single section of the PCRA statute, since certain postconviction claims are to be channeled through the statutory post-conviction procedure although they might not otherwise plainly fall within the parameters of the PCRA. See, e.g., Commonwealth v. Lantzy, 558 Pa. 214, 223, 736 A.2d 564, 570 (1999)

(stating that "the PCRA provides the exclusive remedy for post-conviction claims seeking restoration of appellate rights due to counsel's failure to perfect a direct appeal, since such claims also were cognizable on traditional habeas corpus review"). Rather, the question arises whether the salient restriction on serial, state post-conviction review is a reasonable one, since this Court has acknowledged that the General Assembly is authorized, consistent with the Pennsylvania Constitution, to impose reasonable restrictions on the various forms of post-conviction review. See Commonwealth v. Peterkin, 554 Pa. 547, 556-57, 722 A.2d 638, 642 (1998).

Here, we view the relevant limitation on serial state collateral review as a reasonable one, particularly as applied to the circumstances of the present case, in which the claims asserted depend upon an evolving line of United States Supreme Court precedent involving an interpretation of the United States Constitution, and review within the federal judicial system over which that Court presides has not been shown to be foreclosed. Therefore, accepting the...