Rule 902. Content of Petition for Post-Conviction Collateral Relief; Request for Discovery.

 (A)  A petition for post-conviction collateral relief shall bear the caption, number, and court term of the case or cases in which relief is requested and shall contain substantially the following information:

   (1)  the name of the defendant;

   (2)  the place where the defendant is confined, or if not confined, the defendant’s current address;

   (3)  the offenses for which the defendant was convicted and sentenced;

   (4)  the date on which the defendant was sentenced;

   (5)  whether the defendant was convicted by a jury, by a judge without jury, on a plea of guilty, or on a plea of nolo contendere;

   (6)  the sentence imposed and whether the defendant is now serving or waiting to serve that sentence;

   (7)  the name of the judge who presided at trial or plea and imposed sentence;

   (8)  the court, caption, term, and number of any proceeding (including appeals, prior post-conviction collateral proceedings, and federal court proceedings) instituted by the defendant to obtain relief from conviction or sentence, specifying whether a proceeding is pending or has been completed;

   (9)  the name of each lawyer who represented the defendant at any time after arrest, and the stage of the case at which each represented the defendant;

   (10)  the relief requested;

   (11)  the grounds for the relief requested;

   (12)  the facts supporting each such ground that:

     (a)   appear in the record, and the place in the record where they appear; and

     (b)   do not appear in the record, and an identification of any affidavits, documents, and other evidence showing such facts;

   (13)  whether any of the grounds for the relief requested were raised before, and if so, at what stage of the case;

   (14)  a verification by the defendant that:

     (a)   the facts set forth in the petition are true and correct to the best of the defendant’s personal knowledge or information and belief and that any false statements therein are made subject to the penalties of the Crimes Code, 18 Pa.C.S. §  4904, relating to unsworn falsification to authorities; and

     (b)   the attorney filing the petition is authorized by the defendant to file the petition on the defendant’s behalf;

   (15)  if applicable, any request for an evidentiary hearing. The request for an evidentiary hearing shall include a signed certification as to each intended witness, stating the witness’s name, address, and date of birth, and the substance of the witness’s testimony. Any documents material to the witness’s testimony shall also be included in the petition; and

   (16)  if applicable, any request for discovery.

   The petition may, but need not, include concise argument or citation and discussion of authorities.

 (B)  Each ground relied upon in support of the relief requested shall be stated in the petition. Failure to state such a ground in the petition shall preclude the defendant from raising that ground in any proceeding for post-conviction collateral relief.

 (C)  The defendant shall state in the petition the name and address of the attorney who will represent the defendant in the post-conviction collateral proceeding. If the defendant is unable to afford or otherwise procure counsel, and wants counsel appointed, the defendant shall so state in the petition and shall request the appointment of counsel.

 (D)  The defendant shall attach to the petition any affidavits, records, documents, or other evidence which show the facts stated in support of the grounds for relief, or the petition shall state why they are not attached.

 (E)  Requests for Discovery

   (1)  Except as provided in paragraph (E)(2), no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of exceptional circumstances.

   (2)  On the first counseled petition in a death penalty case, no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of good cause.

Comment

   All privately retained counsel must enter an appearance as provided in Rule 904.

   Paragraph (A)(14) was amended in 2002 to require the defendant to include verification that the attorney is authorized to file the petition.

   Pursuant to paragraph (A)(6), the petition should include specific information about the sentence imposed, including whether the defendant is currently serving a sentence of imprisonment or probation for the crime; awaiting execution of a sentence of death for the crime; or serving a sentence which must expire before the defendant may commence serving the disputed sentence; the minimum and maximum terms of the sentence; the amount of fine or restitution, if any; and whether the defendant is released on parole. See 42 Pa.C.S. §  9543(a).

   Sections 9543(a)(2), (3), and (4) of the Post Conviction Relief Act, 42 Pa.C.S. §  9543(a)(2), (3), and (4), require that to be eligible for relief, the defendant must plead and prove by a preponderance of the evidence all of the following:

     ‘‘(2) That the conviction or sentence resulted from one or more of the following:

      (i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

      (ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

      (iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.

      (iv) The improper obstruction by government officials of the petitioner’s right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.’’

   Deleted by statute.

      ‘‘(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.

      (vii) The imposition of a sentence greater than the lawful maximum.

      (viii) A proceeding in a tribunal without jurisdiction.’’

     ‘‘(3) That the allegation of error has not been previously litigated or waived.’’

     ‘‘(4) That the failure to litigate the issue prior to or during trial . . . , or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.’’ See 42 Pa.C.S. §  9543(a)(2), (3), and (4). (Note: the statutory reference to unitary review in this paragraph is not shown in view of the Court’s 1997 suspension of the Capital Unitary Review Act.)

   By statute, a court may not entertain a request for any form of relief in anticipation of the filing of a petition for post-conviction relief. See 42 Pa.C.S. §  9545(a). For stays of execution, see 42 Pa.C.S. §  9545(c) and Rule 909(A).

   Paragraphs (A)(16) and (E) were added in 1997 to address requests for discovery. Paragraph (A)(16) requires that a request for discovery be included in the petition, if applicable. Paragraph (E) sets forth the standards for permitting discovery. Under paragraph (E)(1), which applies in all cases except on the first counseled petition in a death penalty case, no discovery is permitted at any stage of the proceedings, except upon leave of the court with a showing of exceptional circumstances. See 42 Pa.C.S. §  9545(d)(2). Under paragraph (E)(2), which applies to first counseled petitions in death penalty cases, discovery is permitted only upon leave of court for good cause shown. For purposes of paragraph (E)(2), ‘‘first counseled petition’’ includes petitions on which defendants have elected to proceed pro se pursuant to Rule 904(F)(1)(a).

   Second or subsequent petitions will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. See Commonwealth v. Szuchon, 633 A.2d 1098, 1099 (Pa. 1993) (citing Commonwealth v. Lawson, 549 A.2d 107 (Pa. 1988)). This standard is met if the petitioner can demonstrate either: (1) that the proceedings resulting in the petitioner’s conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate; or (2) that the petitioner is innocent of the crimes charged. See Commonwealth v. Szuchon, 633 A.2d 1098, 1100 (Pa. 1993).

   It is expected that a form petition will be prepared incorporating the required contents set forth herein which will be available for distribution to uncounseled defendants. This rule is not intended to require an attorney to use a printed form or any other particular format in preparing a petition or an amended petition for post-conviction collateral relief, provided, of course, that the attorney must include in a petition or amended petition substantially all of the information set forth in this rule.

   The petition should be typewritten or legibly handwritten.

   Official Note

   Previous Rule 1502 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by present Rules 1503 and 1505. Present Rule 1502 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; amended July 23, 1999, effective September 1, 1999; Comment revised January 21, 2000, effective July 1, 2000; renumbered Rule 902 and Comment revised March 1, 2000, effective April 1, 2001; amended February 26, 2002, effective July 1, 2002; Comment revised April 28, 2005, effective August 1, 2005, 35 Pa.B. 2855.

   Committee Explanatory Reports:

   Final Report explaining the August 11, 1997 amendments published with the Court’s Order at 27 Pa.B. 4305 (August 23, 1997).

   Final Report explaining the July 23, 1999 amendments concerning stays published with the Court’s Order at 29 Pa.B. 4167 (August 7, 1999).

   Final Report explaining the January 21, 2000 Comment revision cross-referencing Rule 1504(F)(1)(a) published with the Court’s Order at 30 Pa.B. 624 (February 5, 2000).

   Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

   Final Report explaining the February 26, 2002 amendments concerning entry of appearance by counsel published with the Court’s Order at 32 Pa.B. 1393 (March 16, 2002).

   Final Report explaining the April 28, 2005 Comment revision published with the Court’s Order at 35 Pa.B. 2859 (May 14, 2005).

Source

   The provisions of this Rule 902 amended February 26, 2002, effective July 1, 2002, 32 Pa.B. 1391; amended April 28, 2005, effective August 1, 2005, 35 Pa.B. 2855. Immediately preceding text appears at serial pages (304143) to (304144) and (303709) to (303710).



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