PRINTER'S NO. 2493
No. 1906 Session of 2003
INTRODUCED BY FAIRCHILD, ADOLPH, BEBKO-JONES, BISHOP, CAPPELLI,
CRAHALLA, DENLINGER, FRANKEL, FREEMAN, GEIST, GORDNER,
HORSEY, JOSEPHS, KOTIK, LAUGHLIN, MANDERINO, R. MILLER,
NAILOR, NICKOL, OLIVER, O'NEILL, PHILLIPS, RUBLEY, SCRIMENTI,
R. STEVENSON, T. STEVENSON, STURLA, E. Z. TAYLOR, THOMAS,
TIGUE, WATSON AND S. MILLER, AUGUST 5, 2003
REFERRED TO COMMITTEE ON JUDICIARY, AUGUST 5, 2003
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, further providing for
3 postconviction relief eligibility, jurisdiction and relief
4 and for sentencing in capital cases.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Section 9543(a)(2) of Title 42 of the
8 Pennsylvania Consolidated Statutes is amended by adding a
9 subparagraph to read:
10 § 9543. Eligibility for relief.
11 (a) General rule.--To be eligible for relief under this
12 subchapter, the petitioner must plead and prove by a
13 preponderance of the evidence all of the following:
14 * * *
15 (2) That the conviction or sentence resulted from one or
16 more of the following:
17 * * *
1 (ix) The existence of mental retardation as defined
2 in section 9711(p) (relating to sentencing procedure for
3 murder of the first degree).
4 * * *
5 Section 2. Section 9545(b)(1) of Title 42 is amended to
6 read:
7 § 9545. Jurisdiction and proceedings.
8 * * *
9 (b) Time for filing petition.--
10 (1) Any petition under this subchapter, including a
11 second or subsequent petition, shall be filed within one year
12 of the date the judgment becomes final, unless the petition
13 alleges and the petitioner proves [that] any of the
14 following:
15 (i) [the] The failure to raise the claim previously
16 was the result of interference by government officials
17 with the presentation of the claim in violation of the
18 Constitution or laws of this Commonwealth or the
19 Constitution or laws of the United States[;].
20 (ii) [the] The facts upon which the claim is
21 predicated were unknown to the petitioner and could not
22 have been ascertained by the exercise of due diligence[;
23 or].
24 (iii) [the] The right asserted is a constitutional
25 right that was recognized by the Supreme Court of the
26 United States or the Supreme Court of Pennsylvania after
27 the time period provided in this section and has been
28 held by that court to apply retroactively.
29 (iv) The petitioner claims to be a person with
30 mental retardation as defined in section 9711(p)
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1 (relating to sentencing procedure for murder of the first
2 degree) and the time for raising that claim has expired
3 as of the effective date of this subparagraph. Any
4 petition invoking this exception must be filed within 365
5 days of:
6 (A) the effective date of this subparagraph; or
7 (B) the conclusion of any appeal pending on the
8 effective date of this subparagraph from the judgment
9 of sentence or from the denial of a previous petition
10 under this chapter.
11 * * *
12 Section 3. Sections 9546 and 9711 of Title 42 are amended by
13 adding subsections to read:
14 § 9546. Relief and order.
15 * * *
16 (a.1) Mental retardation.--Upon a finding that evidence has
17 been presented that is sufficient to establish, by a
18 preponderance of the evidence, that the petitioner is a person
19 with mental retardation as defined in section 9711(p) (relating
20 to sentencing procedure for murder of the first degree), the
21 court shall direct that the sentence of death be vacated and
22 that the defendant be sentenced to life imprisonment.
23 * * *
24 § 9711. Sentencing procedure for murder of the first degree.
25 * * *
26 (e.1) Mental retardation.--
27 (1) No person with mental retardation shall be eligible
28 for the death penalty.
29 (2) The following is the procedure under this
30 subsection:
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1 (i) At least 90 days before the commencement of
2 trial or later upon just cause shown to the court,
3 counsel for the defendant must, in written motion
4 alleging reasonable cause to believe that the defendant
5 is a person with mental retardation, apply for an order
6 directing that a hearing to determine if the defendant is
7 not eligible for the death penalty because the defendant
8 is a person with mental retardation be conducted prior to
9 trial. The written motion must set forth in particular
10 the reasons and grounds to support the reasonable cause
11 to believe that the defendant is a person with mental
12 retardation.
13 (ii) Upon receipt of a motion under subparagraph
14 (i), the trial court shall conduct a hearing for the
15 presentation of evidence regarding the defendant's mental
16 retardation. Both the Commonwealth and the defendant
17 shall have the opportunity to present evidence, including
18 expert testimony. The court shall order an expert
19 psychiatric or psychological examination of the defendant
20 to be performed by a licensed psychiatrist or licensed
21 psychologist who is an expert in the diagnosis and
22 evaluation of mental retardation.
23 (iii) Prior to the time set for the hearing under
24 subparagraph (ii), the Commonwealth shall have the same
25 rights of discovery as exist under the Pennsylvania Rules
26 of Criminal Procedure, including the production of
27 reports from experts and production of information which
28 will further a full, fair and expeditious resolution of
29 the determination of whether the defendant is a person
30 with mental retardation.
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1 (iv) At the hearing under subparagraph (ii), the
2 defendant must prove by a preponderance of the evidence
3 that the defendant is a person with mental retardation.
4 The court shall consider the existence or absence of
5 documentation, and any reasons for the existence or
6 absence of documentation, of the manifestation of mental
7 retardation before the defendant reached 18 years of age.
8 (v) After the hearing under subparagraph (ii), the
9 court shall do one of the following:
10 (A) If the court finds that the defendant is not
11 eligible for the death penalty because the defendant
12 is a person with mental retardation, the court shall
13 order the trial to proceed as a noncapital trial.
14 (B) If the court finds that the defendant is
15 eligible for the death penalty, the court shall order
16 the trial to proceed as a capital case.
17 (vi) If the court enters an order under subparagraph
18 (v)(A), the Commonwealth may appeal as of right from the
19 order under Pa.R.A.P. 311 (a)(8) (relating to
20 interlocutory appeals as of right). The taking of an
21 appeal by the Commonwealth under this subparagraph shall
22 stay the effectiveness of the court's order and any order
23 fixing a date for trial for purposes of Pa.R.Crim.P. 600
24 (relating to prompt trial) and speedy trial rights under
25 the Constitution of Pennsylvania.
26 (vii) The pretrial determination of the court under
27 subparagraph (v) shall not preclude the defendant from
28 raising any legal defense or factual evidence, including
29 the existence of mental retardation, during the trial or
30 the sentencing phase of a capital trial under this
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1 section.
2 (viii) The jury shall not be informed of the prior
3 proceedings or the court's findings concerning the
4 defendant's motion with respect to the issue of mental
5 retardation.
6 * * *
7 (p) Definition.--As used in this section, the term "person
8 with mental retardation" means an individual who has
9 significantly subaverage intellectual functioning existing
10 concurrently with substantial related deficits in adaptive
11 behavior in two or more of the following adaptive skill areas:
12 communication, self-care, home living, social/interpersonal
13 skills, use of community resources, self-direction, health and
14 safety, functional academic skills, leisure and work.
15 Significantly subaverage intellectual functioning may be
16 demonstrated by a full-scale intelligence quotient of 70 or
17 below on an individually administered intelligence quotient test
18 accounting for all possible margins of error. The mental
19 retardation must manifest itself during the development period
20 before the individual attains 18 years of age.
21 Section 4. The following apply:
22 (1) Except as provided in paragraph (2) or (3), this act
23 shall apply to individuals who are sentenced on or after the
24 effective date of this section.
25 (2) If a defendant who has already been sentenced to
26 death as of the effective date of this section wishes to
27 raise the issue of mental retardation and postsentence
28 motions are still pending, the defendant must, pursuant to
29 court rule, amend the postsentence motions to raise the claim
30 that imposition of the death penalty would have been barred
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1 under 42 Pa.C.S. § 9711(e.1) if it had been in effect at the
2 time of the sentencing hearing. The trial court that imposed
3 the sentence on the defendant shall conduct an evidentiary
4 hearing on the motion. Upon a finding that evidence has been
5 presented sufficient to establish that the defendant is a
6 person with mental retardation as provided under 42 Pa.C.S. §
7 9711(e.1), the court shall vacate the sentence of death and
8 shall sentence the defendant to life imprisonment.
9 (3) If a defendant who has already been sentenced to
10 death as of the effective date of this section wishes to
11 raise the issue of mental retardation and direct appeal is
12 still pending, the defendant must, pursuant to court rule,
13 after disposition of the appeal, raise the issue in a Post
14 Conviction Relief Act petition under 42 Pa.C.S. § 9545(b)
15 after the disposition of the appeal.
16 Section 5. This act shall take effect immediately.
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