Commonwealth v. Morris

CASTILLE, Justice,

concurring.

I agree with the majority’s ultimate conclusion that the PCRA court lacked jurisdiction to stay the Governor’s execution warrant once it determined that the serial PCRA petition before it was untimely filed. Accordingly, I join in the mandate vacating the stay of execution. The Court’s mandate follows upon a discussion of several difficult questions, howev*38er, including: the basis for this Court’s jurisdiction; whether the PCRA provides the governing stay standard; if so, what that standard means; whether that standard passes state constitutional muster against challenges based upon the right of appeal and the separation of powers doctrine; and the relevance of federal habeas corpus cases in addressing the meaning and constitutionality of the stay standard. Because I respectfully disagree with the majority’s approach to a number of these important questions, I write separately to address those points of disagreement.

First, although I agree that this Court clearly has jurisdiction to review the order below, I do not believe that the only, or even the most appropriate, jurisdictional predicate is extraordinary jurisdiction under 42 Pa.C.S. § 726. A stay of an execution warrant is not like the typical stay order usually governed by Chapter 17 of our Appellate Rules. In the typical non-capital case, the movant seeks to stay an order of the lower court pending an appeal of that order. The stay here, however, is not a stay of the order of the PCRA court denying appellee’s untimely, serial PCRA petition. Instead, the PCRA court stayed an executive order, i.e., the Governor’s warrant of execution. In my view, the order staying that warrant is itself a final, appealable order under Pa.R.A.P. 341(b).

Rule 341(b) defines a final order as, inter alia, “any order that: (1) disposes of all claims and all parties.” A warrant of execution must specify a day of execution occurring no later than sixty days after the warrant is signed. 61 P.S. § 3002. The warrant here scheduled appellee’s execution for January 27, 2000. The stay entered by the PCRA court on December 21, 1999, rendered that particular warrant unenforceable. As the Commonwealth properly and succinctly notes:

A death sentence must be carried out at a particular time under a particular warrant, or it cannot be carried out at all. A stay that persists beyond the time fixed by the warrant invalidates that warrant — finally, totally, and permanently. Insofar as the warrant of execution is concerned, such an order disposes of all claims and of all parties.

*39Supplemental Bna for Appellant at 7. Once the warrant has expired, the sentence of death can be carried out only upon issuance of a new warrant or by operation of the procedure set forth in 42 Pa.C.S. § 971IC¡) and 61 P.S. § 3002. The stay order, thus, is final and appealable under Rule 341(b). Moreover, the stay of execution granted PCRA relief for all intents and purposes by rendering the existing death warrant unenforceable. The final, appealable nature of such an order is separately recognized in the Rules of Criminal Procedure. See Pa.R.Crim.P. 1510. Jurisdiction over such a final order in a capital case rests exclusively in this Court. 42 Pa.C.S. § 9546(d).1

The stay order is independently appealable to this Court because it amounts to a grant of injunctive relief. See Pa. R.A.P. 311(a)(4).2 The majority rejects this approach for two reasons: (1) because a stay has an injunctive effect only if it has “the effect of dismissal of the case or permanent denial of the requested action,” and the question whether that effect exists is discretionary, which may lead to varying results; and (2) because Chapter 17 of the Rules of Appellate Procedure, rather than Rule 311(a)(4), prescribes the mechanism for review of stay orders. With respect to the first point, the effect of a stay of an execution warrant is decidedly not subject to varying discretionary interpretations. As noted above, since an execution warrant must be acted upon within a specific time or else expire, a stay by the lower court in all instances amounts to an outright denial of the effect of the warrant. With respect to the second point, the existence of Chapter 17 does not prevent this Court from considering the *40unique nature of a stay of execution, as opposed to a stay of a judicial order, which maintains the status quo pending an appeal of that order. Since the ineluctable effect of the stay order is to enjoin the execution, an appeal is proper under Rule 311(a)(4).3

My second concern involves the majority’s interpretation of 42 Pa.C.S. § 9545(c)(2), the provision of the PCRA governing stays of execution. This provision was enacted as part of the same November 1995 legislation that produced the Capital Unitary Review Act (CURA), 42 Pa.C.S. §§ 9570-79. This Court’s August 11, 1997, order suspending CURA and provisions in the PCRA which referred to unitary review or to specific CURA provisions — i.e., §§ 9543(a)(4), 9544(b), 9545(c)(3) & (d)(2) & 9546(d) — did not suspend § 9545(c)(2). Although § 9545(c)(2) does not explicitly refer to CURA, I believe it is properly understood only in light of the overall capital review construct that the November 1995 legislation, of which it was a part, would have established.

Had CURA not been suspended, the PCRA’s stay provision would have applied primarily, and eventually exclusively, to capital cases involving serial petitions for collateral relief. First petitions for collateral relief in capital cases subject to CURA would not have proceeded under the PCRA at all, but instead would have been subject to CURA’s simultaneous post-trial motion/collateral attack and unitary review provisions. Moreover, no stay of execution would issue in a first collateral attack in a CURA case both because the Governor could not sign an execution warrant until after completion of the hybrid procedure and appeal, see 42 Pa.C.S. § 9711(i)-(j), and because, under this Court’s rules, the pendency of the hybrid appeal would operate to stay the execution. See Pa.R.A.P. 1761. CURA made clear that it was only “subsequent petitions” in CURA cases that would be governed by the PCRA. See 42 Pa.C.S. § 9578 (no further review of *41“subsequent petitions” unless petition is filed under Subchapter B (i.e., the PCRA), and alleges one of three extraordinary circumstances [circumstances mirroring the exceptions to the PCRA time-bar found in § 9545(b) ]). Thus, in capital cases which would have been subject to CURA, the PCRA’s stay of execution standard was designed to apply only to serial petitions.

The PCRA stay provision is more complicated, of course, because the General Assembly had to account for the many pre-CURA capital cases that had already proceeded through direct appeal to this Court. These cases could not proceed under CURA’s hybrid unitary review approach and, thus, would be governed by the PCRA. As to that class of potential capital PCRA petitioners, the legislature specifically excluded a single sub-class from operation of the new stay of execution standard: first-time PCRA petitioners whose death sentences had recently been affirmed, i.e., between January 1, 1994, and January 1, 1996. As to this sub-class, the PCRA requires no particular showing to secure a stay. First-time capital PCRA petitioners whose sentences had been affirmed before January 1, 1994, however, as well as capital defendants filing serial collateral attacks under the PCRA, would have to satisfy the statutory stay standard.

This distinction in treatment of first-time capital PCRA petitioners no doubt reflected a legislative judgment that capital defendants whose direct appeals had only recently been decided had not yet had sufficient opportunity to seek collateral review, while defendants in the older cases had such an opportunity. As to the older cases, there was greater reason to conclude that the failure to seek PCRA review was a deliberate delaying tactic, warranting application of a stricter standard for a stay. In this regard, it is worth noting that capital defendants whose sentences were affirmed before 1994 were not subject to the warrant signing statute, 42 Pa.C.S. § 9711(j), which took effect March 15, 1995; those defendants thus had no external prompting, such as the issuance of a death warrant, to cause them to seek PCRA review.

*42The majority notes that its analysis of the PCRA stay standard is confined to cases involving serial PCRA petitions, since that is the posture of this case, and that it expresses no view regarding the availability of a stay of execution in a case involving a first PCRA petition. Majority op. at 733 n. 11. But, in light of the interrelationship between § 9545(c)(2) and CURA, it would be both accurate and useful to make clear that § 9545(c) (2)’s stay standard was intended to apply only to serial petitions for collateral review and to first petitions in cases where the affirmance of sentence pre-dated January 1, 1994. The General Assembly expressed no intention to have the new standard apply to timely-filed first petitions for collateral review. Furthermore, since the 1995 legislation enacting § 9545(c)(2) also included the new one-year PCRA filing deadline (a provision which survived the suspension of CURA), there is a mechanism in place that assures timely PCRA filings now that the suspension of CURA reestablished the PCRA as the repository for first-time collateral attacks in capital cases. Thus, there is simply no reason, as a matter of statutory construction, to subject timely-filed, first capital PCRA petitions to the statutory stay standard.

A separate question, of course, is whether § 9545(c)(2) should retain any force at all given its obvious relationship with the now-suspended CURA. Since the provision explicitly addresses both CURA and non-CURA situations, however, and reflects a rather clear and unimpeded judgment with respect to the substantive standard that should govern the availability of a stay of execution in serial petition cases, such as this one, I see no reason why it should not apply here.4 At a minimum, the standard certainly should inform our consideration. And, for reasons I address more fully below, since the statutory stay standard mirrors the familiar test in our jurisprudence for assessing whether or not to issue a stay, it is an appropriate standard to apply to serial petition cases.

*43My next concern involves the majority’s consideration of the inter-related questions of: (1) the meaning of the requirement that the capital defendant make “a strong showing of likelihood of success on the merits” to obtain a stay under the PCRA; and (2) whether that requirement impairs the defendant’s state constitutional right of appeal from a court of record. The language of the standard is certainly familiar: the General Assembly obviously adopted it from this Court’s existing stay jurisprudence. E.g. Commonwealth, Board of Finance & Revenue v. Rosetta Oil, Inc., 535 Pa. 343, 635 A.2d 139 (1993) (stay applicant must make strong showing that (1) he is likely to prevail on merits; (2) he will suffer irreparable injury without stay; (3) stay will not substantially harm other interested parties; and (4) stay will not adversely affect public interest); Pennsylvania PUC v. Process Gas Consumers, 502 Pa. 545, 467 A.2d 805 (1983). Accord Hilton v. Braunskill, 481 U.S. 770, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987).5

The majority’s discussion of the PCRA stay provision paradoxically does not proceed according to the PCRA’s plain language, nor does it acknowledge the importance of the Process Gas line of cases in explicating the standard. Instead, the majority relies upon the federal habeas corpus statute and federal cases construing that provision. I believe this inappropriate approach introduces confusion into an area where clarity is particularly necessary.

The majority states that the PCRA stay language “closely tracks the language” of 28 U.S.C. § 2253, the federal provision governing state prisoner appeals from the denial of habeas relief. Majority op. at 735. The majority then holds that the federal standard for habeas appealability, a standard explicated in a line of cases beginning with Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), should *44control this Court’s construction of § 9545(c)(2)’s stay provision. Under the federal test that the majority adopts, a stay would issue under the PCRA only if the applicant showed “probable cause to proceed further.” Majority op. at 734. Further construing this phrase in light of the federal cases, the majority states that a stay may issue in cases where the PCRA court has found the petition untimely if “reasonable jurists would find it debatable whether the lower court was correct in its jurisdictional ruling,” while the merits of a petition would warrant a stay if the issue presented is “adequate to deserve encouragement to proceed further.” Id. at 741. These formulations are imported directly from Barefoot’s explication of the federal habeas appeal standard.

The majority also relies on federal habeas cases to resolve appellee’s claim that the stay provision in § 9545(c) burdens his state constitutional right of appeal. The majority notes that constitutional rights are not absolute, but are instead subject to reasonable legislative restriction; therefore, the constitutionality of § 9545(c)(2) depends upon the reasonableness of the limitation it places upon the right of appeal. Majority op. at 732 (citing Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 642 (1998)). In explicating that which may be reasonable for state constitutional purposes, again the majority turns to the federal habeas cases. The majority seems to imply that the federal cases, including the cases discussing the availability of stays of execution, have been assessed for constitutional reasonableness. Majority op. at 732 (citing Lonchar v. Thomas, 517 U.S. 314, 322-23, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996)). For that reason, the majority states, the federal standards should be utilized in assessing the reasonableness of § 9545(c)(2) in the face of the constitutional right of appeal challenge presented here. Majority op. at 732, 734. Construing the PCRA stay standard as the equivalent of the federal Barefoot standard, the majority concludes that the PCRA stay standard is reasonable and, for that reason, passes state constitutional muster.

The majority’s reliance upon the federal habeas cases to explicate the PCRA stay standard and to evaluate whether it *45unreasonably burdens the state constitutional right of appeal is misplaced. Addressing the constitutional question first, federal habeas jurisprudence not only does not control questions of state collateral review, but federal habeas cases do not address the constitutional right of appeal question presented here. Indeed, they cannot address that question: State prisoners in federal habeas cases have no equivalent federal claim because there is no federal constitutional right of appeal. See Martinez v. Court of Appeal of California, 528 U.S. 152, 160, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) (“ ‘[t]he right of appeal, as we presently know it in criminal cases, is purely a creature of statute’ ”)(quoting Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)).

Thus, the federal habeas cases relied upon by the majority involve questions of federal statutory construction, not of constitutionality. Until 1996, the federal habeas appeal statute, 28 U.S.C. § 2253, provided no right of appeal to a habeas petitioner unless a district or circuit court judge issued “a certificate of probable cause” (commonly called a “CPC” in habeas parlance). See Slack v. McDaniel, 529 U.S. 473, 480, 120 S.Ct. 1595, 1602, 146 L.Ed.2d 542 (2000).6 The probable cause standard was not further delineated statutorily. Barefoot addressed that omission and held that a CPC should issue only if the applicant made “a substantial showing of the denial of a federal right.” 463 U.S. at 893, 103 S.Ct. 3383. The Barefoot formulation of the CPC test was alternatively expressed in that opinion as not requiring a showing that the petitioner should prevail on the merits, but instead a showing only that the issues are debatable among reasonable jurists, that a court could resolve the issues differently, or that the issues presented were adequate to deserve encouragement to proceed further. Id. at 892-93 & n. 4, 103 S.Ct. 3383.7 *46The federal cases examining the standard for issuing a stay of execution in a federal habeas case, beginning with Barefoot, have necessarily looked to the statutorily-based CPC requirement since that test determines whether the habeas petitioner will be permitted to appeal at all. Congress’s appealability standard necessarily controls the availability of a stay because a more restrictive rule would undo the statutory right of appeal:

When a [CPC] is issued ..., petitioner must then be afforded an opportunity to address the merits, and the court of appeals is obligated to decide the merits of the appeal. Accordingly, a circuit court, where necessary to prevent the case from becoming moot by the petitioner’s execution, should grant a stay of execution pending disposition of an appeal when a condemned prisoner obtains a certificate of probable cause on his initial habeas appeal.

Id. at 893, 103 S.Ct. 3383. Accord Lonchar v. Thomas, 517 U.S. 314, 319-20, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996).

The majority suggests that the “limited review” and stay procedure available in the federal habeas capital arena has been subjected to evaluation and approval for constitutional “reasonableness,” an evaluation the majority says is measured by whether the limits “exist within constitutional constraints and balance the objectives of maintaining the court’s freedom to issue the writ against a state’s interest in finality.” Majority op. at 732. But the citation following this proposition, Lonchar, 517 U.S. at 322-23, 116 S.Ct. 1293, does not support it. After surveying the history of federal habeas, Lonchar merely noted that habeas review has come to be governed by “complex procedural principles that regularize and thereby narrow the discretion” of individual judges, which are “embodied in statutes, rules, precedents, and practices that control *47the writ’s exercise.” 517 U.S. at 322-23, 116 S.Ct. 1293. “Within constitutional constraints,” the principles “reflect a balancing of objectives (sometimes controversial), which is normally for Congress to make, but which courts will make when Congress has not resolved the question.” Id. at 323,116 S.Ct. 1293.8 Lonchar stands for the rather unexceptional proposition that federal habeas courts are not free to ignore “this body of statutes, rules, and precedents” and apply additional “ad hoc, equitable” grounds to dispose of a habeas petition. The fact that federal habeas principles embodied in statutes, rules and cases strive to balance objectives does not mean that legislative enactments in the federal habeas arena are subject to judicial disapproval on grounds of “unreasonableness,” much less that the federal constitution mandates that evaluation and disapproval.

In short, I do not think that the federal cases cited by the majority stand for the proposition that the habeas statute, including the probable cause standard adopted in the stay cases, has been subject to, and survived, constitutional scrutiny for reasonableness. Instead, the stay standard is dictated by the statute creating the right of appeal in the first place. Thus, the federal habeas cases do not support the proposition that the PCRA’s stay provision, so long as it -is interpreted as being identical to the Barefoot standard, likewise passes constitutional muster. The PCRA stay question this Court faces derives from a state constitutional provision, and its subsequent legislative restriction, having no federal habeas counterpart. The federal habeas cases are simply not relevant to this question.

I also disagree with the majority’s conclusion regarding the non-constitutional question of statutory interpretation — ie., whether the PCRA stay standard is in fact the equivalent of *48the Barefoot standard. The actual language used in the PCRA (“strong showing of likelihood of success on the merits”) far more closely tracks this Court’s stay standard (“strong showing” that stay applicant “is likely to prevail on the merits,” Process Gas, supra) than the federal appealability standard (“substantial showing of the denial of a federal [or after AEDPA, constitutional] right”). Furthermore, certain formulations of the Barefoot probable cause test are squarely at odds with the PGRAJProcess Gas stay language. For example, one formulation of the Barefoot test suggests that “the petitioner need not show that he should prevail on the merits.” 463 U.S. at 893 n. 4, 103 S.Ct. 3383. But the PCRA standard explicitly requires “a strong showing of likelihood of success on the merits.” Also, the Barefoot Court states that its test is the “primary means of separating meritorious from frivolous appeals,” 463 U.S. at 892, 103 S.Ct. 3383, which suggests that stays should issue in all but frivolous cases. In adopting Pennsylvania’s now-familiar stay language, which the PCRA merely echoes, this Court in Process Gas specifically rejected the notion that a stay is warranted if the question presented is merely “not frivolous,” noting that that “is hardly a meaningful standard” as it would be satisfied “in the overwhelming majority of appeals.” 467 A.2d at 808.

Since the PCRA stay standard obviously codifies the first part of the Process Gas test, this Court should interpret it in accordance with its plain language and our case law on stays, rather than employing a strained reliance upon federal habeas cases which involve a different statute and different constitutional and jurisprudential concerns. This interpretation is preferable not only because it is dictated by the plain language of the PCRA, but also because importing an arcane and .ever-changing federal habeas jurisprudence will unnecessarily confuse this narrow, quintessential question of state statutory interpretation.

The relevance of the federal habeas experience to our task is, in my mind, more subtle. A major concern addressed by the 1996 amendment of the federal habeas statute, as well as much of the United States Supreme Court’s recent habeas jurisprudence, is that habeas review not unnecessarily impede *49the finality of state court criminal judgments, particularly in capital cases. See Hohn v. United States, 524 U.S. 236, 118 S.Ct. 1969, 1982, 1984, 141 L.Ed.2d 242 (1998) (Scalia, J., dissenting) (1996 amendment to habeas statute “continues a long tradition of provisions enacted by Congress that limit appellate review of petitions;” purpose of amendment “was to eliminate the interminable delays in the execution of state and federal criminal sentences”). See generally Kent S. Scheidegger, Habeas Coyfpus, Relitigation, and the Legislative Power, 98 Colum.L.Rev. 888 (May 1998). The PCRA stay provision, aimed primarily at serial state collateral attacks upon final criminal judgments, obviously is animated by a similar concern with finality. Other provisions in the 1995 PCRA amendments, most notably the one-year period of limitations, corroborate the concern with finality. The majority rightly stresses the importance and legitimacy of this concern in addressing the state constitutional question of whether the stay provision unreasonably interferes with the right of appeal. The majority properly cites to federal habeas cases as additional support for the proposition that the General Assembly’s concern with finality in criminal cases is legitimate, which in turn suggests that the stay provision here is not an unreasonable burden on the state constitutional right of appeal. Majority op. at 735-36. But I cannot join in the majority’s reliance upon the federal habeas cases for the broader interpretive propositions embraced therein.

Addressing the right of appeal question, I agree with the majority that this stay provision is reasonable and, thus, does not violate appellee’s state constitutional right of appeal.9 I see nothing unreasonable in the General Assembly imposing limitations upon collateral attack, including collateral appellate *50review, as a case progresses farther from the actual trial. Automatic entitlement to a stay, or even an overly permissive stay standard such as the presence of a “non-frivolous” issue, could destroy any prospect of finality in capital cases. See Sayres v. Commonwealth, 88 Pa. 291, 307 (1879) (“If the legislature may fix no limitation whatever upon the issuing of such writs, it is not too much to say that capital punishment cannot be hereafter enforced in Pennsylvania”). The General Assembly, which was not obliged to afford an avenue for serial collateral attacks in the first place, reasonably could require that a condemned prisoner meet the prevailing standard for stay/injunctive relief before a presumptively valid warrant of execution, issued pursuant to a final, affirmed judgment of sentence of death, could be stayed and rendered nugatory. The reasonableness of § 9545(c)(2) is inescapable when it is understood, as it must be in light of its plain language and its interrelationship with CURA, as primarily applying to serial PCRA petitions. Those petitions invariably will be untimely on their face, such as the one dismissed by the PCRA court in this matter, and the relatively simple question will be whether one of the three narrow exceptions to the PCRA time-bar applies. Requiring a showing of likelihood of prevailing on the merits as to one of those exceptions before a stay may issue is not at all unreasonable. As the majority rightly notes, “at some point in the proceedings society’s interest in finality becomes overarching.” Majority op. at 739. A PCRA petitioner whose serial petition was denied on jurisdictional grounds of untimeliness, and who cannot show that he is likely to prevail on the merits of his claim that he qualifies under one of the exceptions, has reached that point.10

My next concern involves the majority’s discussion of the court’s inherent power to grant a stay. In my view, it is *51essential that we bear in mind that the stay at issue here is not of a judicial order, such as the order denying the serial PCRA petition, but that it is of an executive warrant of execution. Whatever “inherent” stay power the courts may possess over such warrants may certainly be restricted by the General Assembly. The restriction, in this case is perfectly lawful. The General Assembly was not required to provide an avenue to entertain serial collateral challenges at all. Having created the right to challenge in certain narrowly prescribed instances, I see no reason why the General Assembly could not adopt this Court’s Process Gas standard, the usual jurisprudential standard employed when injunctive relief is requested, to ensure that the PCRA would not be used, and abused, to render the death penalty unenforceable in Pennsylvania. The General Assembly having spoken, I agree that a PCRA court has the authority to enter a stay of execution in a case involving a serial PCRA petition only under the standard set forth in § 9545(c)(2).

Finally, I do not join in the “general guidelines” the majority promulgates regarding issuance of stays. Once the PCRA court below determined that this serial PCRA petition was time-barred, it had no jurisdiction to stay the warrant of execution. That is enough to decide this case.

. This Court’s order of August 11, 1997, which suspended the Capital Unitary Review Act (CURA), 42 Pa.C.S. §§ 9570-79, and provisions of the PCRA which referred to CURA, specifically suspended the 1995 and 1997 amendments to § 9546(d). The previous, 1988 version of the subsection thus governs, and it provides that a final order in a case involving the death penalty shall be directly appealable “only to the Supreme Court pursuant to its rules.”

. Rule 311(a)(4) states that an appeal may be taken as of right, without reference to Rule 341, from “[a]n order granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.”

. Although the stay order is appealable under our existing rules, I agree with the majority that the matter should be referred to the Appellate Rules Committee to examine the propriety of fashioning more specific rules to govern review of orders staying warrants of execution.

. In light of the new PCRA time bar, which required the filing of first petitions in the older cases by no later than January of 1997, there may not be any first petition cases where the stay issue will arise.

. Section 9545(c)(2)'s adoption of only the first part, of our stay formulation reflects a legislative appreciation of the unique nature of these cases. Where execution is imminent, a petitioner who can show that he is likely to prevail on appeal necessarily would suffer irreparable injury absent a stay, and neither other interested parties nor the public interest could be adversely affected by permitting a stay in that circumstance.

. The CPC requirement was first imposed by Congress in 1908 out of “concernL ] with the increasing number of frivolous habeas corpus petitions challenging capital sentences which delayed execution pending completion of the appellate process...." Barefoot, supra at 892-93 n. 3, 103 S.Ct. 3383.

. The 1996 Antiterrorism and Effective Death Penally Act (AEDPA) amended § 2253, changing both the nomenclature, i.e., it now requires *46that a certificate of appealability (COA) issue for an appeal to proceed, and also stating that a COA can issue only if the applicant makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As the majority notes, Slack v. McDaniel construed the COA standard to be a codification of the CPC/Barefoot standard, albeit with the additional "constitutional right” re > ■■•tion. 120 S.Ct. at 1603-04, 120 S.Ct. 1595.

. The constitutional constraints referred to were no1 identified in Lonchar, but the reference certainly was not to a non-existent righl of appeal. Presumably, the Court was referring to the Suspension Clause, i.e., Article I, § 9, clause 2 of the United States Constitution, which provides that ‘‘[t]he privilege of the Writ of Habeas Corpus shall not be suspended.” See Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996).

. I would note that other legislative limitations on the constitutional right of appellate review in criminal cases have been upheld as reasonable by this Court. See Commonwealth v. McFarlin, 402 Pa.Super. 502, 587 A.2d 732 (1991) (en banc) (42 Pa.C.S. § 9781(b), which provides tha1 discretionary sentencing appeals are reviewable only upon petition by aggrieved party and subsequent discretionary leave of appellate court where it finds substantial question present, held to be reasonable restriction upon right of appeal and thus constitutional), affirmed per curiam, 530 Pa. 167, 607 A.2d 730 (1992); Sayres v. Commonwealth, 88 Pa. 291, 306-08 (1879) (statutory provision requiring tha1 writ of error *50in capital case be sought from Supreme Court no later than twenty days after death sentence held to be reasonable limitation upon constitutional provision establishing right of review in Supreme Court by way of writ of error).

. With respect to the second constitutional question raised by appellee, I agree with the majox'ity that the stay provision is substantive, not procedural, and thus does not violate the separation of power doctrine by intruding on this Court's rulemaking authority.