Commonwealth v. Morris

JUSTICE CASTILLE

CONCURRING.

I join in the Majority Opinion, with the exception of certain minor points of disagreement addressed below. I also write to address further: (1) this Court’s inherent power to issue a stay of execution; (2) the validity of this Court’s prior stay order; and (3) the reasons why I believe 42 Pa.C.S. § 9545(c) properly controls the stay issue.

From the moment this Court issued the stay of execution in this case on June 21, 2001, over my dissent, the question of our “inherent power” to do so became moot at best. Since the Majority does not suggest that our stay order was authorized under Section 9545(c)—i.e., appellant did not “make a strong showing of likelihood of success on the merits” of his appeal *183from the dismissal of his time-barred, second petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.—it can only have resulted from our “inherent powers.” Thus, the Commonwealth correctly notes: “It would be an appeal to fantasy to suggest that this Court did not have the power to grant a stay that was not authorized by § 9545(c), because it has already exercised that power in this case.” Brief for Appellee, 6. That assessment is beyond cavil.

In my view, this Court has the inherent power to grant a stay in any case in order to properly perform our constitutional duty. But, the contours of the power cannot be divorced from the case in which it is requested to be exercised. In this case, the General Assembly has specifically spoken to the availability of a stay in one narrow context: litigation of a serial PCRA petition. As the Majority notes, we held in Commonwealth v. Morris, 565 Pa. 1, 771 A.2d 721 (2001) (Morris I), that Section 9545(c) is “substantive in nature, not procedural, and thus, was a valid exercise” of legislative authority, and that the statute was constitutional. Op. at 167, 822 A.2d at 690. Since there is valid legislation controlling the matter, resort to this Court’s inherent power is both unnecessary and inappropriate. The diluted standards offered up by appellant in place of those embodied in the legislative enactment wrongly assume that this Court may simply ignore valid legislation. In any event, the standard provided in the PCRA and explicated in Morris I is more than adequate to ensure the orderly consideration of serial PCRA appeals, and to identify those rare cases where a particular death warrant must be enjoined to permit review of the denial of a serial PCRA petition. This standard is also, in my judgment, more than adequate to vindicate this Court’s inherent stay power in this context.

It is not an attack upon the independence of the judiciary for the General Assembly, which created a limited right to collateral review via the PCRA, and an even more limited right to pursue a serial PCRA petition such as this one, to pass substantive legislation which has the collateral effect of placing reasonable limitations upon this Court’s inherent stay *184power, in a case where a stay is requested to entertain an appeal from the denial of a serial PCRA petition. This modest and sensible restriction—if it can be said to be a restriction of this Court’s inherent power at all rather than legislation effectuating that power—merely creates a theoretical possibility that a lawful sentence of death will be carried out in Pennsylvania. 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 PCRA stay standard is particularly appropriate since it was “obviously adopted ... from this Court’s existing stay jurisprudence.” Morris I, 771 A.2d at 746 (Castille, J. concurring). Thus, in fashioning the standard, the Assembly showed a measure of deference to this Court which we did not reciprocate when we issued our stay order.

The important preliminary question in the aftermath of our stay order is whether, in a system of separated powers such as that which undergirds our governing scheme, we should have entered the stay order on June 21, 2001. The Majority clearly recognizes this question, see op. at 174, 822 A.2d at 694 (“we must now consider whether the stay of execution was warranted”), but never answers it directly. Instead, the Majority decides the merits of the underlying appeal (ie., whether the PCRA court was correct in concluding that the serial PCRA petition was time-barred), and only then states “we cannot continue the stay in this matter” and vacates it. Op. at 182, 822 A.2d at 699. I would confront the predicate question directly and acknowledge that our previous order was erroneously entered, since Section 9545(c) controls and appellant never made the showing required by it to obtain the stay. This Court should not give the impression that years of reflection, and a full-blown opinion addressing the merits of the time-barred- appeal, are required before this Court will rule upon a request for a stay of execution pending an appeal from the denial of a serial PCRA petition.

The bottom line here is that appellant was never entitled to a stay of execution—just as we held in Morris I that the *185PCRA court lacked jurisdiction to negate the previous warrant of execution in December of 1999. Monis I, 771 A.2d at 742. And yet, Pennsylvania courts have stayed petitioner’s execution for three and a half years, thereby delaying the prospect of this ancient judgment actually being carried out any time soon. I trust that this Court having now rejected the notion that we may grant a stay of execution upon some lesser, unprincipled standard, our decisions on Section 9545(c) stays in serial PCRA appeals will be more timely issued.

Turning from the question of the propriety of our previous stay order to the substance of the statutory stay standard, I do not join in the Court’s dicta concerning possible exceptions to the statute arising from “inherent powers,” as no such circumstance is presented here and the dicta inevitably will invite abuse in future cases. Op. at 165, 822 A.2d at 691. I do agree with the Majority that, in order to secure a stay of execution in connection with an appeal from the dismissal of a serial PCRA petition, the petitioner must make “a strong showing of likelihood of success on the merits.” I note that the Majority’s plain language approach is consistent with that set forth in my concurring opinion -in Monis I: ie., the Majority applies the actual PCRA stay language, rather than invoking the test employed by federal courts construing federal habeas corpus appeal standards. See Moms I, 771 A.2d at 746-750 (Castille, J., concurring) (discussing distinction in purpose and meaning of standards). The Majority’s decision in this regard is wise. A case recently decided by the U.S. Supreme Court demonstrates just how changeable and unpredictable the federal habeas appeal standard is. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). As I noted in Morris I, it is preferable to follow the plain language of Section 9545(c), both because that is what the statute actually says, and because the language merely tracks this Court’s Process Gas standard for the issuance of stays. See Pennsylvania PUC v. Process Gas Consumers, 502 Pa. 545, 467 A.2d 805 (1983). See also Morris I, 771 A.2d at 746 (Castille, J., concurring) (discussing Process Gas standard).

*186I also do not agree with the Majority in simply accepting appellant’s characterization of Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). Op. at 171, 822 A.2d at 692. Tyler involved the federal habeas statute’s restriction upon the filing of successive federal habeas petitions—a restriction that requires the petitioner to secure approval of the federal court of appeals before he may pursue a successive petition and which requires the federal appellate court to determine, within thirty days of the application, whether one of the two narrow exceptions to the ban on successive federal petitions has been met. 28 U.S.C. § 2244(b). Tyler’s federal statutory interpretation does not involve any principle of federal law that binds this Court, nor does Tyler even speak to the distinct statutory interpretation issue before us. Certainly, appellant may forward to the General Assembly his rather simplistic equation that “(allegedly) complex issues should lead to a stay of execution as a matter of right” and seek to have the PCRA stay legislation amended accordingly. But nothing in Tyler’s discussion of the federal habeas statute remotely supports the notion that this Court is obliged as a matter of federal law, or even as a matter of inherent power, to ignore the stay statute in favor of the proffered equation. Indeed, since Tyler upheld the federal construct requiring a serial federal habeas petitioner to make his showing in the stringent thirty-day statutory limit or be denied authority to pursue a successive petition, even as academic authority, the decision undercuts appellant’s position.

Finally, on the question of whether appellant has satisfied any of- the exceptions to the PCRA time-bar, I join the Majority Opinion, which holds that he has not and, accordingly, neither the PCRA court nor this Court has jurisdiction to entertain this serial PCRA petition.

Subject to the foregoing qualifications, I join the Majority Opinion.