concurring and dissenting.
I commend the Majority for its exhaustive treatment of the claims raised by Appellant, and I join the Majority’s disposition of Appellant’s substantive claims. I cannot, however, join the Majority’s articulation of the procedure for implementing the High Court’s Atkins decision.1 Specifically, I believe that the Majority’s decisions to omit any notice requirements will exacerbate the problem that it attempts to remedy: “the prospect of different standards and manners of implementation” of Atkins. Majority Opinion at 62. Moreover, I disagree with the Majority’s determinations concerning the identity of the fact-finder and the timing of the adjudication.2 Accordingly, I respectfully dissent in these regards.
In Atkins, the United States Supreme Court held that the Federal Constitution “‘places a substantive restriction on the State[s’] power to take the life’ of a mentally retarded offender,” Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (quoting Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)), but left to the states the task of developing the appropriate procedures for enforcing this substantive restriction, id. at 317, 122 S.Ct. 2242 (“[W]e leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” (second and third alterations in original) (citation omitted)). Recognizing that it has been nine years since the Court decided Atkins — and that the legislature has not acted to address the procedural void left in its wake — the Majority undertakes the unenviable task of setting forth a scheme for disposing of a capital defendant’s claim of mental retardation in the trial setting.3 See Majority Opinion at 52-53. Specifically, it adopts the following paradigm: (1) a colorable Atkins issue should be submitted to the *78jury for a penalty phase decision, id. at 61-62; (2) the parties may agree to waive a jury determination and ask the court to decide the Atkins claim at any stage of the trial, id. at 68; and (8) if the parties opt for the latter option, the court’s determination is conclusive, and the Atkins claim cannot be renewed before the jury, id. While I appreciate the Majority’s effort to articulate a workable solution to resolve Ai/cms-related issues, I do not believe this framework is the most pragmatic approach for addressing the problem.
To begin, I perceive several major procedural drawbacks stemming from the Majority’s silence concerning when a capital defendant must provide notice of his intent to raise an Atkins claim. See generally James W. Ellis, Mental Retardation and the Death Penalty: A Guide to State Legislative Issues, 27 Mental & Physical Disability L. Rep. 11, 14-15 (Jan.-Feb.2003) (outlining notice considerations for Atkins claims). Indeed, although the Majority does state that “[i]n cases of requested jury waiver, an agreement must be presented to the court for approval in sufficient advance as not to delay or disrupt the trial proceedings,” Majority Opinion at 64, it does not provide a directive on when a defendant must notify the court or counsel for the Commonwealth that it is raising the claim in the first place. Such an omission, in my view, creates serious problems for litigating Atkins claims before the trial court.
As an initial matter, a trial court presented with an Atkins claim must determine whether the defendant raised the issue in a timely manner. Because the Majority offers no direction as to how this determination should be made, trial courts will likely adopt their own notice procedures, which could result in disparate treatment of capital defendants with respect to waiver issues. For example, a judge in Schuylkill County might say that any capital defendant intending to raise an Atkins claim must do so prior to the beginning of trial, while a judge in Westmore-land County might permit a capital defendant to raise an Atkins claim at any point prior to the beginning of the sentencing phase, and yet another judge in Erie County might permit the defendant to raise the claim at any point prior to the jury charge at sentencing. Although it is uncertain whether this Court would uphold convictions based on such varying procedures — and I do not presume to decide the matter here — it is clear that the result would violate the principle that “all prosecutions should receive application of uniform procedures.” Commonwealth v. Moore, 534 Pa. 527, 633 A.2d 1119, 1130 (1993). Moreover, this scheme will have the opposite effect of that intended by the Majority — namely, providing uniformity in the procedure utilized for addressing Atkins claims. See Majority Opinion at 52 (noting that the legislature’s delay in adopting Atkins procedures “has caused uncertainty in the lower courts, and could lead to different standards and procedures being employed in different courtrooms throughout the Commonwealth”); id. at 62 (“[T]he prospect of different standards and manners of implementation [of Atkins ] in capital cases within a single state is no longer tenable.”). Such a situation, in my opinion, is untenable.
Additionally, assuming arguendo that defendants are permitted to raise Atkins claims after trial has commenced — indeed, there is nothing in the Majority Opinion that would prohibit this from occurring— there remain several procedural determinations that the Majority fails to resolve. First, the trial court will still have to determine whether the claim was raised in a timely fashion. While this determination presumably would turn upon diligence, i.e., when the defendant knew or should have *79known that a viable claim existed, there is nothing in the Majority’s opinion that requires or encourages the defense to investigate the potentiality of such a claim with any sort of expediency. Thus, under the Majority’s procedure, simply happening upon the claim at trial and raising it at that point would be permissible.
Presuming the claim is timely raised, the trial court then will be tasked with determining how to conduct the remainder of the trial proceedings. At this point, the Commonwealth will need some time to have its experts examine the defendant and prepare a report, and the defense will need time to review the report and put together its own evidence on the matter. By the time this process has concluded, it could be well after the parties have rested and the jury has rendered its guilt-phase verdict (assuming the court is to allow the guilt phase of trial to continue). This process raises the additional question of whether the court should keep the jury impaneled until the parties are ready to proceed on the Atkins claim or whether the Court should discharge the jury and impanel a new jury when the parties are ready to proceed with the sentencing phase. Without definitive guidance on the matter, trial courts are again left with the undesirable chore of promulgating their own procedures to address the issue.
Given these concerns, I would adopt a procedure that requires capital defendants to provide notice in advance of trial and by a date certain. In my view, pretrial notice provides concrete guidance to the bench and bar and avoids constitutional infirmity that may arise if varying notice procedures are utilized amongst the trial courts. As for pinpointing the exact time within which an Atkins claim must be raised, it must be based upon the time fixed for rendering an Atkins determination. Since, as explained infra, I believe that the judge should make the Atkins decision pretrial, I would require a capital defendant to raise an Atkins claim at least ninety days prior to trial. In my opinion, this deadline is sufficiently “late enough in the pretrial period to permit the defense to investigate and determine whether the [defendant] may actually have mental retardation” but sufficiently in advance of the date on which the hearing must be held to permit the prosecution to investigate the defendant’s claim. Ellis, supra, at 15; see also Colo.Rev.Stat. § 18-1.3-1102 (“Any defendant may file a motion with the trial court in which the defendant may allege that such defendant is a mentally retarded defendant. Such motion shall be filed at least ninety days prior to trial.”); S.D. Codified Laws § 23A-27A-26.3 (requiring notice ninety days prior to trial).4 Indeed, it does not force defense counsel into the position of raising an Atkins issue without first having the opportunity to fully investigate its viability, see Ellis, supra, at 15, but, at the same time, it affords the Commonwealth the opportunity to investigate the claim without necessarily causing a substantial delay in the proceedings.
As I believe in setting forth a bright line rule requiring an Atkins claim to be raised pretrial, I would, as noted, also require the trial court to dispose of the matter in a pretrial proceeding. In my opinion, this procedure is more in keeping with the nature of the determination and, under *80certain circumstances, could substantially reduce the expenditures of funds and time required for capital cases.
With respect to the nature of the determination, concluding that a defendant has mental retardation is strictly a death-disqualifying decision that does not require the factfinder to consider the specific circumstances under which the crime was committed. See Peggy M. Tobolowsky, Atkins Aftermath: Identifying Mentally Retarded Defenders and Excluding Them From Execution, 30 J. Legis. 77, 105 (“[A]n Atkins proceeding requires an assessment of whether proffered facts satisfy the legal definition of mental retardation adopted which, in turn, automatically determines a capital defendant’s eligibility for the death penalty ... without regard to any individualized assessment of the defendant’s culpability for the underlying crime.”); id. (“Unlike the role that evidence of mental retardation plays as a mitigating factor balanced against aggravating factors in a capital sentencing determination of the requisite individualized culpability necessary for the imposition of a death sentence, the Atkins mental retardation determination simply removes a defendant from the determination.... ”); id. at 105-06 (“[M]ental retardation is not a sentencing issue — it is an eligibility for sentencing issue.” (emphasis in original)). In this sense, determining whether a defendant has mental retardation is akin to determining whether a defendant is competent to stand trial. Indeed, the competency determination is divorced from the circumstances surrounding the underlying crime and instead looks only at the defendant’s mental state at the time of the relevant proceeding. See Commonwealth v. Appel, 547 Pa. 171, 689 A.2d 891 (1997) (noting that competency to stand trial pertains to the time of trial or other legal proceeding, not the time of the commission of the offense). Since competency determinations rest within the sound discretion of the trial court, see Commonwealth v. Banks, 29 A.3d 1129, 1135 (Pa.2011); 50 P.S. § 7402(d), I discern no reason why the court should not also decide the issue of mental retardation prior to trial.5
Additionally, placing the decision in the hands of the trial judge for a pretrial determination is economical in terms of the time and cost that might be saved by avoiding a capital trial. Indeed, it is no secret that capital cases are more time-consuming and expensive than non-capital cases. See Richard C. Dieter, Executive Director, Death Penalty Information Center, Testimony Before the Pennsylvania Senate Government Management and Cost Study Commission (June 7, 2010). “Jury selection takes much longer; more mental health and forensic experts will be needed; two trials will be required — one for guilt and one for sentencing; and the appeals will be far more complex, focusing on both the conviction and the death sentence.” Id.; see also Commonwealth v. Spotz, 18 A.3d 244, 331 (Castille, C.J., concurring) (noting that capital PCRA appeals are time-consuming and complex). Additionally, “two attorneys are usually appointed for the defense, so that issues of guilt and *81sentencing can be separately explored.” Dieter, supra.
In light of this time and cost consuming process, “every effort must be made to avoid a death-penalty trial, as early in the proceedings as possible, where capital punishment is precluded as a matter of law,” State v. Flores, 135 N.M. 759, 93 P.3d 1264, 1269 (2004); see Atkins, 536 U.S. at 320, 122 S.Ct. 2242 (categorically prohibiting the execution of mentally retarded offenders). By placing the mental retardation determination in the hands of the judge for a pretrial decision, “significant resources [could be] saved in terms of trial preparation, motion practice, voir dire, trial time, mitigation research, etc.,” if the defendant is found to have mental retardation. United States v. Nelson, 419 F.Supp.2d 891, 893 (E.D.La.2006): see also Morrow v. State, 928 So.2d 315, 324 (Ala.Crim.App.2004) (stating that pretrial Atkins determination by the court spares the parties from “the onerous burden of a futile bifurcated capital sentencing procedure”) (quoting State v. Williams, 831 So.2d 835, 860 (La.2002), superseded by statute as stated in State v. Turner, 936 So.2d 89 (La.2006)); Ellis, supra, at 14 (“[I]f the defendant has mental retardation, and therefore is ineligible for the death penalty, pretrial resolution of the issue saves the State the cost of an unnecessary capital trial.”); id. at 15 (“Presenting the arguments on this issue to a judge is likely to result in a hearing that is less elaborate and less costly that doing so before a jury.”); Lt. Jessica Hudson et al., Lightning But No Thunder: The Need for Clarity in Military Courts Regarding the Definition of Mental Retardation in Capital Cases and for Procedures in Implementing Atkins v. Virginia, 55 Naval L.Rev. 359 (2008) (noting the economic benefits of having a judge resolve Atkins claims pretrial). Therefore, I see the potential for conserving resources as an added benefit to placing the Atkins determination with the judge prior to trial.
I recognize that implementation of any Atkins procedure must comport with constitutional requirements. See Commonwealth v. Bracey, 604 Pa. 459, 986 A.2d 128, 141 (2009) (observing that procedural rules “cannot trump a Sixth Amendment right to a jury”). To that effect, the Majority expresses concern that “in the context of a preserved Atkins claim at the trial level ..., it is not clear that commanding a bench decision would comport with the constitutional right to a jury.” Majority Opinion at 64. My review of the relevant law, however, compels my conclusion that this concern is unfounded.
With respect to federal constitutional law, in a trilogy of cases decided in recent years, the United States Supreme Court has clarified that a criminal defendant is entitled to a jury determination under the Sixth Amendment when an increase in penalty is dependent upon the finding of a particular fact. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); see also U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a ... trial, by an impartial jury....”). In Apprendi, the Court held that “any fact that increases the penalty for a' crime beyond the proscribed statutory maximum must be submitted to a jury.” 530 U.S. at 490, 120 S.Ct. 2348. In Ring, the Court determined that “[c]apital defendants ... are entitled to a jury determination of any fact on which the legislature conditions an in*82crease in their maximum punishment.” 586 U.S. at 589, 122 S.Ct. 2428. Finally, in Blakely, the Court held that state sentencing guidelines are unconstitutional when they permit a judge to sentence a defendant outside the guidelines based upon the judge’s finding of additional facts such as deliberate cruelty. 542 U.S. at 303-04, 124 S.Ct. 2531.
As applied in the Atkins context, I fail to see how the United States Constitution compels a jury determination on the issue of mental retardation. While findings of fact are required, those factual determinations do not increase a capital defendant’s penalty. If sufficient facts support a finding of mental retardation, then a defendant convicted of first-degree murder is categorically disqualified from having his penalty increased. Conversely, if the facts do not support a finding of mental retardation, the capital defendant’s penalty is not ipso facto increased — the jury will still have to weigh aggravating and mitigating factors before reaching a sentencing conclusion. Thus, regardless of the ultimate disposition of the Atkins claim, no sentencing increase occurs unless it “derives wholly from the jury’s verdict.” Blakely, 542 U.S. at 306, 124 S.Ct. 2531.
As for the Pennsylvania Constitution,6 no case from this Court purports to require a jury to make an Atkins determination. Indeed, although the Constitution “requires that one accused of a ‘serious offense’ be given a jury trial,” Commonwealth v. Mayberry, 459 Pa. 91, 327 A.2d 86, 89 (1974) (citing Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)), there is no authority in the jurisprudence of this Commonwealth indicating that a defendant has a right to have a jury make an Atkins determination.7 In the absence of some compelling argument to the contrary, I can find no reason to prohibit the judge from making an Atkins decision prior to trial.
As a final matter, I want to make it clear that while I believe the better practice is to submit the Atkins adjudication to the judge prior to trial, I nonetheless agree with the Majority’s determination that the trial court did not err in denying Appellant’s request for a pretrial bench adjudication under the facts of this case in the absence of any guidance from the General Assembly or this Court. I further agree with the Majority that the burden of proof in an Atkins claim should be on the defendant by a preponderance of the evidence. Accordingly, while I dissent from the Majority’s implementation of the Atkins procedure with respect to the fact-finder and time of the mental retardation adjudication, I agree with the Majority’s *83disposition of Appellant’s substantive claims.
Justice TODD joins.
.Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
. As explained infra, my disagreement with the Majority on these points does not affect my view that Appellant's judgment of sentence should be affirmed.
. As the Majority notes, this Court has already addressed the standard for assessing mental retardation under Atkins, see Commonwealth v. Miller, 585 Pa. 144, 888 A.2d 624 (2005), as well as the procedural standard for addressing Atkins claims in a post-conviction setting, see Commonwealth v. Bracey, 604 Pa. 459, 986 A.2d 128 (2009). See Majority Opinion at 61-62.
. Cf. Ky.Rev.Stat. § 532.135 (requiring defendant to file a motion thirty days before trial); Nev.Rev.Stat. § 174.098 (requiring defendant to file a notice not less than 10 days before the start of trial and providing that the court must stay the proceedings pending a pretrial judge-made determination on the issue); Utah Code § 77-15a-104 (requiring notice "not fewer than 60 days before trial” and stating that the court may stay the proceedings to address the issue).
. It has been suggested that an Atkins determination is similar to an insanity defense, which in Pennsylvania is a jury question. See Majority Opinion at 55-56. In some ways this is true; however, the insanity defense, unlike an Atkins determination, "focuses upon a defendant’s capacity[] at the time of the offense,” Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d 761, 788 (2004), and serves to negate an element of the crime charged, see Commonwealth v. Jones, 546 Pa. 161, 683 A.2d 1181, 1204 (1996). Thus, factors weighing in favor of a jury determination on insanity are not present with respect to an Atkins claim.
. See Pa. Const, art. I, § 6 (Trial by jury shall be as heretofore, and the right thereof remain inviolate.”); id. art. I, § 9 (stating that "in prosecutions by indictment or information” the accused has the right to a trial "by an impartial jury”).
. The Pennsylvania Constitution states that "in criminal cases the Commonwealth shall have the same right to trial by jury as does the accused.” Pa. Const. art. I, § 6. In Commonwealth v. White, 589 Pa. 642, 910 A.2d 648, 662 (2006), a majority of this Court agreed that when a defendant waives his or her right to have a jury as fact-finder, that waiver does not constitute waiver of the Commonwealth’s corresponding right under Article I, Section 6. The implication of this holding is that because the Commonwealth has the same right to have a jury serve as fact-finder as does the defendant, where the defendant has no right to a jury as fact-finder, neither does the Commonwealth. Accordingly, since the defendant does not have a constitutional right to have a jury find facts necessary to determine whether he has mental retardation, it follows that the Commonwealth can have no such right.