Opinion
No. 755 CAP
11-26-2019
COMMONWEALTH of Pennsylvania, Appellee v. Kevin PELZER, Appellant
ORDER
PER CURIAM
AND NOW , this 26th day of November, 2019, the appeal is DISMISSED . Presently, because Pelzer is not currently sentenced to death, this Court lacks jurisdiction over the appeal. See 42 Pa.C.S. § 9546(d) (providing this Court with exclusive appellate jurisdiction over "a final order" in a "case in which the death penalty has been imposed").
The case is REMANDED to the Philadelphia Court of Common Pleas for sentencing pursuant to our previous mandate in Commonwealth v. Daniels and Pelzer , 628 Pa. 193, 104 A.3d 267, 319 (2014).
Justice Dougherty files a concurring statement joined by Justice Mundy.
Justice Wecht files a concurring statement joined by Justice Donohue.
Chief Justice Saylor and Justices Baer and Todd did not participate in the consideration or decision of this matter.
JUSTICE DOUGHERTY, CONCURRING
I join the Court's decision to dismiss the instant appeal and remand to the Philadelphia Court of Common Pleas for sentencing pursuant to our previous mandate in Commonwealth v. Daniels and Pelzer , 628 Pa. 193, 104 A.3d 267, 319 (2014). However, it is my position that, should Pelzer seek future relief in connection with his recusal-based due process claim that led to the instant nunc pro tunc appeal before this Court, the remedy, if deemed warranted by the trial court, must be limited in the manner described in my Opinion in Support of Affirmance in Commonwealth v. Taylor , ––– Pa. ––––, 218 A.3d 1275 (2019) (Dougherty, J., Opinion in Support of Affirmance) (the only constitutionally available remedy where a petitioner successfully pleads and proves in a timely PCRA petition that a constitutional violation occurred during the appellate process is reinstatement of the nunc pro tunc right to seek reargument of the original appellate decision pursuant to Pa.R.A.P. 2543 ).
Justice Mundy joins this concurring statement.
JUSTICE WECHT, CONCURRING
Because Kevin Pelzer has not yet been sentenced, let alone sentenced to death, this Court necessarily lacks subject matter jurisdiction to dispose of this appeal on the merits. See 42 Pa.C.S. § 9546(d) (providing this Court with exclusive appellate jurisdiction over "a final order" in a "case in which the death penalty has been imposed"). Thus, I join today's order dismissing the appeal and remanding the matter for sentencing.
As a matter of law, today's order issues without prejudice to Pelzer's right to pursue relief on the merits of the procedural and substantive claims that he raises in this appeal in the appropriate venue after he is sentenced. I do not share Justice Dougherty's view that, after Pelzer is sentenced, the trial court "must" limit Pelzer's pursuit of relief. See Conc. Statement (Dougherty, J.), at –––– (repeating rationale of Opinion in Support of Affirmance in Commonwealth v. Taylor , ––– Pa. ––––, 218 A.3d 1275 (2019) ). With all due respect to my learned colleague, such an anticipatory restriction on future claims is jurisprudentially incorrect and unsound.
In Taylor , the lower court's order was affirmed by default solely because the votes of the participating members of this Court ended in a 2-2 tie. There was no majority. Such a tie requires this Court automatically to affirm the appealed order by default in a per curiam order. Like any order, the order constitutes a binding, final order. However, it is "indisputable" that the opinions offered by the deadlocked Justices in such cases have "no precedential value." Sprague v. Cortes , 637 Pa. 399, 150 A.3d 17, 22 (2016) (Opinion in Support of Affirmance) (quoting Commonwealth v. Bomar , 573 Pa. 426, 826 A.2d 831, 843 n.13 (2003) ("While the ultimate order of a plurality opinion, i.e. an affirmance or reversal, is binding on the parties in that particular case, legal conclusions and/or reasoning employed by a plurality certainly do not constitute binding authority.")). Thus, neither Justice Dougherty's opinion in support of affirmance ( 218 A.3d 1275 )—even though it corresponds with the ultimate default result—nor my opinion offered in support of the contrary result ( 218 A.3d 1275 ) bind the trial court in the case sub judice in any way.
For these reasons, the procedural issue that deadlocked Taylor — whether a lower court can compel a new appellate proceeding before this Court—remains an open question. The trial court here should approach the question as such, and must indeed address it anew. That court is not bound by either of the non-precedential opinions offered in Taylor .
Justice Donohue joins this concurring statement.