Com. v. Morris

Decision Date20 April 2001
Citation771 A.2d 721,565 Pa. 1
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. Kelvin X. MORRIS, Appellee.
CourtPennsylvania Supreme Court

Hugh Burns, Philadelphia, for Commonwealth

Billy H. Nolas, Philadelphia, for Kelvin X. Morris.

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

OPINION

CAPPY, Justice.

This is a direct appeal from an order of the trial court granting appellee's motion for a stay of execution. We granted review of this matter in order to determine whether the trial court had jurisdiction to enter the stay and to set forth the appropriate standard of review this court should employ in reviewing stays of execution. The Commonwealth urges this court to reverse the order of the trial court on the basis that the trial court was without authority to enter the stay of execution outside the parameters set forth in 42 Pa.C.S. § 9545(c). We agree with the Commonwealth and accordingly, vacate the stay of execution.

A brief synopsis of the procedural history of the case is necessary to understand the disposition of this matter.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 appointed2 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 court granted appellee's motion for a stay of execution.

Following the trial court's orders, the Commonwealth filed an Emergency Petition for Expedited Appellate Review of Illegal Stay Order with this court. This court noted probable jurisdiction and scheduled oral arguments on the trial court's order granting the stay of execution. Specifically, we directed that the parties address this court's jurisdiction to review the trial court's order, whether 42 Pa.C.S. § 9545(c) establishes the exclusive means by which a stay of execution can be granted in post-conviction matters, and the validity of the stay entered by the trial court in the instant case. The Commonwealth's primary argument is that section 9545(c) provides the sole means by which a stay can be granted. Appellee responds, inter alia, that section 9545 is unconstitutional, or in the alternative, that section 9545 cannot usurp the court's inherent power to grant a stay.

In reviewing these issues we must first consider whether we have jurisdiction to review the stay of execution. If we do have jurisdiction, we will next address whether section 9545(c) survives the constitutional challenges to its validity. If section 9545(c) is constitutional, we will consider the Commonwealth's claim that section 9545(c) establishes the exclusive means by which a stay can be entered in a case on collateral review. We will then enumerate guidelines for both applicants and courts to follow when requesting and reviewing stay applications. And finally, we will speak to the validity of the stay entered in the case herein.

The threshold question in this case is whether this court has jurisdiction to review the trial court's order granting the stay of execution. The Commonwealth asserts that this court has jurisdiction, since an order staying an execution is a form of injunctive relief and is therefore appealable as of right, even if interlocutory, pursuant to Pa.R.A.P. 311(a)(4). Alternatively, the Commonwealth asserts that this court has jurisdiction to review the stay order as a collateral order pursuant to Pa.R.A.P. 313. Finally, the Commonwealth asserts that even if this court is without jurisdiction pursuant to either Pa. R.A.P. 311 or 313, then we should assume extraordinary jurisdiction of this claim pursuant to 42 Pa.C.S. § 726.

Appellee responds that the order granting the stay of execution is an interlocutory order, and as such, the Commonwealth had no right to appeal the order and this court is without jurisdiction to hear the appeal. Appellee points out that the stay did not grant final relief on the PCRA petition nor did it leave the Commonwealth out of court. Rather, the Commonwealth was not harmed in any way by the entry of the stay order and the regular appeals process should be followed in this case.3,4

The Commonwealth's argument that the stay order should be treated as either an injunction or mandamus action has some appeal since that is how federal courts and other states have opted to treat stays of execution for jurisdictional purposes. In re Moser, 69 F.3d 690 (3rd Cir.1995)(court has jurisdiction to consider stay of execution, since the effect of a stay is injunctive in nature; jurisdiction is also appropriate as an exercise of mandamus authority under the All Writs Act, 28 U.S.C. § 1651(a)); see also Franklin v. Francis, 144 F.3d 429, 432 (6th Cir.1998)

; Zant v. Dick, 249 Ga. 799, 294 S.E.2d 508 (1982). Likewise, Pennsylvania courts have treated stay orders as preliminary injunctions under limited circumstances. Blackwell v. Commonwealth, State Ethics Commission, 523 Pa. 347, 567 A.2d 630 (1989); Chestnut v. Pediatric Homecare of America, 420 Pa.Super. 598, 617 A.2d 347 (1992). In order to determine whether a stay order should be treated as a preliminary injunction, the court must make a determination of whether the stay order has the effect of dismissal of the case or permanent denial of the requested action. Chestnut, 617 A.2d at 349. Notwithstanding the conclusions of our sister jurisdictions and the fact that we have treated stays as injunctions in the past, we do not believe that this is the appropriate manner to consider the instant stay. First, the outcome of the inquiry set forth in Chestnut is discretionary, and thus, can have varying results. Second, and more importantly, the Rules of Appellate Procedure prescribe a mechanism for review of stay orders.5 Thus, we will review the provisions of Chapter 17 of the Rules of Appellate Procedure in order to determine whether jurisdiction is granted pursuant to those rules.

Normally, stay orders, including appellate review of stay orders, are governed by Chapter 17 of the Rules of Appellate Procedure. The first two rules of Chapter 17 set forth the general effect of an appeal and include the right of the trial court "to take such action as may be necessary to preserve the status quo." Pa. R.A.P. 1701(b)(1). Rule 1702 enumerates the procedures for reviewing a stay ancillary to appeal, including an appeal from a stay following the filing of a notice of appeal. Pa.R.A.P. 1702(a). In most instances, a stay of execution would be appealable pursuant to this rule, since the trial court would be consistent in its ruling, i.e., denying both the petition for collateral relief and the stay. Thus, the party filing the notice of appeal would be the same as the party appealing the stay and this court could review the stay order pursuant to Rule 1702(a) once the notice of appeal was filed. However, cases will arise, similar to the case herein, where a stay order is appealed before a notice of appeal is filed.6 For example, in this case, the trial court's rulings were inconsistent—it denied the petition for relief, but granted the stay of execution. Therefore, the party appealing the stay was not the same as the party filing the notice of appeal. This inconsistent ruling resulted in the appeal from the stay order before the notice of appeal was filed from the PCRA order.7 Accordingly, jurisdiction cannot be conferred pursuant to Rule 1702(a).

Similarly, jurisdiction cannot be conferred by the other rules in Chapter 17. Rule 1702(b) provides for review before the filing of a petition for allowance of appeal or permission to appeal from an interlocutory order based upon the recognition that there may be a time lapse between the lower court's order granting or denying the stay and the filing of the petition for allowance of appeal or permission to appeal. Comment to Pa.R.A.P. 1702(b). In this case, the appellee has not filed and will not be filing a petition for allowance of appeal or permission to appeal, since his appeal of the underlying matter is directly to this court pursuant to 42 Pa.C.S. § 9546(d)(suspended August 11, 1997, reinstating subsection (d) from the 1988 Act).

Rule 1702(c) creates the right to directly appeal a stay to this court in conjunction with Rule 3315, giving our court the right to review the grant or denial of a stay order. Commonwealth v. Martorano, 535 Pa. 178, 634 A.2d 1063, 1065 (1993); Reading Anthracite Co. v. Rich, 525 Pa. 118, 577 A.2d 881, 883 (1990). However, that review is limited to stay orders ruled upon by intermediate courts. In this case, there was no involvement by any intermediate court, nor would there ever be any involvement by an intermediate court, since the appeal in capital cases is directly to this court. Similarly, Rule 1761 provides a vehicle for this court to enter a stay in a capital matter, but that Rule is limited to cases on direct appeal from the judgment of sentence pursuant to 42 Pa. C.S. § 9711 and does not apply to petitions for collateral review. Rules 1731-35 provide for stays for ancillary relief in civil matters. However, these rules cover only specific civil matters, i.e. payment of money and domestic matters, and do not encompass...

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