Commonwealth v. Yard

Full title: COMMONWEALTH OF PENNSYLVANIA, Petitioner v. MICHAEL NOEL YARD, Respondent

Court: Supreme Court of Pennsylvania

Date published: Sep 26, 2024

11 MM 2023 (Pa. Sep. 26, 2024)

Opinion

11 MM 2023

09-26-2024

COMMONWEALTH OF PENNSYLVANIA, Petitioner v. MICHAEL NOEL YARD, Respondent

MUNDY, JUSTICE. WECHT, JUSTICE. DONOHUE, JUSTICE.

SUBMITTED: October 11, 2023.

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

OPINION

MUNDY, JUSTICE.

We exercised plenary jurisdiction to address the evidentiary requirements for the denial of bail under the Pennsylvania Constitution's asserted right-to-bail exception relating to charges for which the maximum sentence is life imprisonment.

This matter arises from the August 2021 death of Respondent Michael Yard's infant son, who is alleged to have died from blunt-force trauma to the head. From the evidence adduced at the preliminary hearing, it appeared the decedent was the victim of homicide, and that his injuries occurred at a time when Respondent was the sole person caring for him. It also appeared the decedent had suffered broken ribs two or three weeks before his death, but the cause and circumstances of those injuries were unclear.

In April 2022, Respondent was charged with several offenses including first-degree murder and was detained in the Monroe County jail. At that juncture the Magisterial District Judge denied bail on the grounds that Respondent was charged with first-degree murder. A preliminary hearing was held on May 9, 2022. At the hearing, the autopsy report and a recording of the 911 call made by Respondent were admitted into evidence. The Commonwealth presented the testimony of several witnesses, including two forensic pathologists, agents of the Monroe County Coroner's Office, and a Pennsylvania State Police Trooper. After the hearing, all charges were bound over to the Monroe County Court of Common Pleas. These included an open count of criminal homicide to include first-degree murder, endangering the welfare of children, and aggravated assault - victim less than six years of age. See 18 Pa.C.S. §§ 2501(a), 4303(a)(1), 2702(a)(8).

The following day Respondent petitioned the county court to set bail, citing Commonwealth v. Talley, 265 A.3d 485 (Pa. 2021), which held that under the right-to-bail clause of the state Constitution, see Pa. Const. art. I, § 14, the phrase "proof is evident or presumption great" constitutes a unique standard of proof between probable-cause and beyond-a-reasonable-doubt. Section 14 states, in relevant part:

All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great[.]

Pa. Const. art. I, § 14.¹ In his bail motion, Respondent conceded that the Commonwealth established a prima facie case for involuntary manslaughter, but not for murder.²

1 Section 14 originally contained only the capital-offense exception to the bail right. The life-offense and the dangerousness exceptions were added in 1998. This development is discussed below.

2 Murder is distinguished from manslaughter in that murder is a killing with malice. See Commonwealth v. Ludwig, 874 A.2d 623, 630-31 (Pa. 2005); see also infra note 4.

A bail hearing was held on May 24, 2022, before Judge Sibum. At that time the parties orally agreed upon such facts as were reflected in the testimony and exhibits presented by the Commonwealth at the preliminary hearing. The Commonwealth argued Talley was inapposite given that the defendant in that matter had been held under Section 14's dangerousness exception, whereas here, Respondent was charged with first-degree murder and was being held per Section 14's life-imprisonment exception. In support of that position, the Commonwealth relied on the sole-caretaker presumption, see Commonwealth v. Meredith, 416 A.2d 481 (Pa. 1980),³ as well as evidence that deadly force was applied to a vital area of the body. See N.T. May 24, 2022, at 22, reprinted in RR. 55a. Respondent allowed that the evidence suggested involuntary manslaughter, or even malice for purposes of third-degree murder, see id. at 20-23, RR. 53a-56a, but he denied that it supported a specific intent to kill as needed for first-degree murder and, thus, a life sentence.⁴ He characterized such conclusion as speculative, as he viewed the preliminary hearing testimony as failing to indicate how the injury occurred or to reveal any external injury to the victim's head. See id. at 5, 28, reprinted in RR. 38a, 61a.

3 "In this jurisdiction we have held that where an adult is given sole custody of a child of tender years for a period of time, and, during that time the child sustains injuries which may have been caused by a criminal agency, the finder of fact may examine any explanation offered and, if they find that explanation to be wanting, they may reject it and find the person having custody of the child responsible for the wounds." Id. at 482-83. (citing Commonwealth v. Paquette, 301 A.2d 837 (Pa. 1973)).

4 First-degree murder is an intentional killing. Third-degree murder is a killing with malice that is not intentional and does not qualify as second-degree murder (a criminal homicide committed while engaged as a principal or accomplice in the commission of a felony). 18 Pa.C.S. § 2502. With third-degree murder, malice is inferred from the recklessness of the defendant's conduct. See Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005). Where, as here, the Commonwealth does not seek the death penalty, a first-degree murder conviction carries a mandatory sentence of life imprisonment. See 18 Pa.C.S. § 1102(a). Third degree murder is not punishable by life imprisonment, see id. § 1102(d), unless the defendant had previously been convicted of murder or voluntary manslaughter. See 42 Pa.C.S. § 9715(a); Commonwealth v. Coleman, 285 A.3d 599 (Pa. 2022). There is no suggestion in the present case that Respondent had such a criminal record.

The court took the matter under advisement and scheduled a hearing for three days later to announce its decision. At the May 27 hearing, the court highlighted that Respondent had no prior criminal record, and it set bail at $200,000 secured with non-monetary conditions, including that Respondent was prohibited from living in the marital home, i.e., his wife's grandmother's house. The court denied the Commonwealth's request to stay its order pending an appeal to the Superior Court.

The Commonwealth filed an emergency motion for a stay and a petition for review in the Superior Court. The stay was immediately granted, and the Superior Court directed the bail court to file a statement of its reasons for granting bail. Complying with that directive, on June 23, 2022, the bail court filed its statement of reasons, characterizing the parties' agreement concerning facts derived from the preliminary hearing evidence as a stipulation, but expressing that it had erred by basing its decision on that stipulation, as it now construed this Court's Talley decision to prohibit courts from denying bail based on a "cold record." The court also stated that if the stipulation were to be supplemented by live testimony, it might find the Talley standard to be satisfied for first-degree murder. The court therefore requested that its order be vacated and the matter remanded for a new bail hearing. The Superior Court responded with an order vacating the bail court's order granting bail and remanding for further proceedings. However, the Superior Court did not issue an opinion or otherwise provide guidance to the bail court. The bail court ultimately scheduled a new bail hearing for October 25, 2022.

Sometime before that hearing, Respondent filed a motion for nominal bail pursuant to Rule 600, see Pa.R.Crim.P 600(B)(1) (providing, except in cases where the defendant is not entitled to release on bail, that no defendant may be held in pretrial incarceration more than 180 days from the date the criminal complaint is filed), as interpreted in Commonwealth v. Dixon, 907 A.2d 468 (Pa. 2006), which held that Rule 600 does not allow an extension of pretrial detention in excess of 180 days attributable to interlocutory appeals taken by the Commonwealth. See id. at 477; see also Pa.R.Crim.P. 600(D)(2) (governing release on nominal bail when the defendant has been held in pretrial detention beyond the period allowed by paragraph (B)). The court scheduled a hearing for October 31, 2022, on the motion for nominal bail.

Thereafter, the previously-scheduled bail hearing was held on October 25, 2022, at which time the Commonwealth did not present live testimony but sought to supplement the record from the May 2022 bail hearing with exhibits, which included an audio recording and transcript of the preliminary hearing, the affidavit of probable cause, and a copy of the victim's autopsy report. The Commonwealth also drew the court's attention to the prior factual stipulation received by the court. See N.T., Oct. 25, 2022, at 5, reprinted in RR. 312a. For his part, Respondent appeared to accept that the parties had stipulated to certain facts back in May, see id. at 7, reprinted in RR. 314a, but he opposed the court's consideration of the Commonwealth's exhibits as hearsay. See id. at 4-5, reprinted in RR. 311a-312a. The court interpreted that opposition to additionally encompass a withdrawal of Respondent's earlier factual stipulation. See id. at 11, reprinted in 318a.⁵

5 The court allowed the Commonwealth's exhibits to be placed in the record while reserving judgment on whether it could consider them. See id. at 18, 22, reprinted in RR. 325a, 329a.

The matter was then taken under advisement and over the next few months, pretrial conferences were scheduled and the matter proceeded despite the unresolved bail issue. In the interim, on October 31, 2022, the court held a hearing on Respondent's motion for nominal bail. At the hearing, the parties advised the court such motion could only be resolved after the court determined whether the first-degree-murder charge was substantiated. Thereafter, on January 25, 2023, the bail court issued an order granting Respondent's motion for nominal bail and setting bail at $1.00 with non-monetary conditions. These included, again, that Respondent was prohibited from living in the marital home, or any other home where minors resided.

The following day, the Commonwealth filed an emergency motion for a stay and a petition for review in the Superior Court. That court granted the stay and directed Judge Sibum to submit a statement of reasons for granting bail. The judge filed an opinion indicating her basis was the prosecution's failure to present live testimony at the October 25 bail hearing. She again asserted that this Court's decision in Talley precluded her from denying bail on a "cold record" - a term she used to encompass the transcript and audio recording of the preliminary hearing, the victim's autopsy report, and the criminal complaint. Thus, she repeated her view as expressed in her June 23, 2022, statement that she could not deny bail absent the ability to view and listen to live witness testimony. See Commonwealth v. Yard, No. CP-45-CR-1222-2022, Opinion at 5-6 (C.P. Monroe Jan. 25, 2023), reprinted in RR. 335a-336a.⁶ Thereafter, the Superior Court denied the Commonwealth's petition for review and lifted the temporary stay, although again, it did not issue an opinion explaining its reasoning.

6 The Opinion is dated January 25, 2023, even though the Superior Court filed its order two days after that date. The Commonwealth explains this apparent discrepancy by observing that the bail court issued an opinion in conjunction with its January 25 order and then supplied the same opinion on January 30 in response to the Superior Court's directive. See Brief for Commonwealth at xxiii.

The Commonwealth immediately applied for an emergency stay in this Court, indicating it would shortly be filing a petition for review or for allowance of appeal, requesting full merits review of the issues raised therein. This Court granted a temporary stay by single-Justice order pending referral to the full Court.

Instead of filing a petition for review or a petition for allocatur, the Commonwealth filed papers styled as an Application for Relief, alleging the bail court erred in several material respects by granting release on bail; positing that the issues involved here are likely to be repeated in other cases; and requesting that this Court resolve them on the merits. Respondent subsequently filed papers styled as an Application to Expedite Review and Lift Temporary Stay, asking this Court to expedite our review, deny the Commonwealth's Application for Relief, and lift the temporary stay.

By order of the full Court, we granted Respondent's request to expedite review but denied his request to lift the temporary stay. We also granted the Commonwealth's application for relief in part. Specifically, we assumed jurisdiction pursuant to 42 Pa.C.S. § 726 (relating to extraordinary jurisdiction),⁷ directed the parties to brief the following issues, and denied the Application for Relief in all other respects:

7 "Notwithstanding any other provision of law, the Supreme Court may, on its own motion or upon petition of any party, in any matter pending before any court or magisterial district judge of this Commonwealth involving an issue of immediate public importance, assume plenary jurisdiction of such matter at any stage thereof and enter a final order or otherwise cause right and justice to be done." Id.

1. To what extent do the holdings in Commonwealth v. Talley, 265 A.3d 485 (Pa. 2021), apply where the Commonwealth opposes bail on the basis that the defendant has been accused of a crime for which the maximum sentence is life imprisonment?

2. What types of evidence may a bail court consider in resolving whether the Commonwealth has met its burden under Article I, Section 14 of the Pennsylvania Constitution? A subsidiary issue is whether a stipulation of facts may be so considered, and whether Respondent's alleged withdrawal of the stipulation in this matter precluded such consideration.

Commonwealth v. Yard, No. 11 MM 2023, Order at 1-2 (Pa. July 24, 2023) (per curiam).

The parties have now filed their briefs. Additionally, the Attorney General of Pennsylvania and the Pennsylvania District Attorneys Association have filed a joint amicus brief supporting the Commonwealth, while the Defender Association of Philadelphia and the Public Defenders Association of Pennsylvania have filed a joint amicus brief supporting Respondent. The matter is now ready for disposition.

In Talley we acknowledged that Article I, Section 14 of our organic law, quoted above, establishes a right to bail except in relation to (1) a defendant accused of committing a capital offense (the capital-offense exception), (2) a defendant accused of committing an offense that carries a maximum sentence of life imprisonment (the life-offense exception), and (3) a defendant who presents a danger to any person and the community that cannot be abated with available bail conditions (the dangerousness exception). See Talley, 265 A.3d at 513. Talley dealt only with the dangerousness exception. We held that the phrase "proof is evident or presumption great" - an evidentiary limitation that clearly applies to the dangerousness exception as it is the last exception in the list - requires courts to undertake a qualitative and quantitative assessment of the evidence at the bail hearing, and that the Commonwealth bears a burden of production and persuasion that falls somewhere between a prima facie case and proof beyond a reasonable doubt. See id. at 520, 522.

Some of Talley's language reflects that this Court assumed the proof/presumption limitation applies to all three exceptions. See id. at 513. Other passages limit the actual holding of that decision to the dangerousness exception. See id. at 525 ("Accordingly, we hold that when the Commonwealth seeks to deny bail due to the alleged safety risk the accused poses," the Commonwealth must demonstrate "that it is substantially more likely than not that (1) the accused will harm someone if he is released and that (2) there is no condition of bail within the court's power that reasonably can prevent the defendant from inflicting that harm.") (emphasis omitted). In any event, and as noted, only the dangerousness exception was before the Court in Talley. The issue of whether the proof/presumption limitation also applies to the first two exceptions was not before us and, as such, we did not conduct an analysis of that aspect of the constitutional text. In light of the issues we accepted for review, we must do so now.

As quoted above, the language qualifying the constitutional right to bail consists of disjunctive language containing three elements, followed by an evidentiary limitation:

unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great[.]

Pa. Const. art. I, § 14 (emphasis added). The question is whether the evidentiary limitation reflected in the emphasized text above applies only to the last element of the disjunctive list, i.e., the dangerousness exception, or to all three exceptions.

The "polestar" of this Court's constitutional interpretation is the language of the provision at issue. In re Bruno, 101 A.3d 635, 659 (Pa. 2014). The general rules governing the interpretation and construction of statutes also apply to the interpretation of constitutional provisions. See Smith v. City of Phila., 516 A.2d 306, 309 n.3 (Pa. 1986) (citing Montgomery v. Martin, 143 A. 505, 507 (Pa. 1928)); Perry Cty. Tel. & Tel. v. Pub. Svc. Comm'n, 108 A. 659, 660 (Pa. 1919). Under those rules, when the constitutional text is unambiguous, its plain meaning is given effect. See Walsh v. Tate, 282 A.2d 284, 288 (Pa. 1971). Where the text is ambiguous, however, its meaning may be ascertained by reference to principles of statutory construction as well as evidence probative of the connotation intended by those who drafted the provision and by the voters who approved it. See Bruno, 101 A.3d at 659-60.

It is often true, when the text under review consists of a list of items followed by a qualifier, that the text is ambiguous. This is because it is reasonably possible for the qualifier to apply to all members of the list, or only to the last one. To take a simple example, consider the phrase, "judges and law clerks who play chess." It is not readily apparent from the text alone whether the restrictive clause, "who play chess," is meant to apply only to law clerks, or to judges and law clerks. The qualified list is therefore ambiguous. See generally Trizechahn Gateway LLC v. Titus, 976 A.2d 474, 483 (Pa. 2009) (explaining an ambiguity exists when there are at least two reasonable interpretations of the text).

The text in this matter, however, is not of that character. The disjunctive list consisting of the capital-offense exception, the life-offense exception, and the dangerousness exception is different from a list of the form "unless a or b or c where some condition holds true." There is another "unless" interposed between 'b' and 'c'. Thus, to re-quote Section 14's text with a different emphasis, it reads:

All prisoners shall be bailable by sufficient sureties unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great[.]

Pa. Const. art. I, § 14 (emphasis added). The second "unless," bolded above, breaks the disjunction into two parts: the first two items, which are separated only by the word "or," followed by the third item which is preceded by "or unless." See generally Brief for Amici Pennsylvania Attorney General and Pennsylvania District Attorneys Association, at 5-6 (highlighting this feature of the text). Under the ordinary rules of English grammar,⁸ the presence of this second "unless" clarifies that the evidentiary limitation appearing at the end ("when the proof is evident or presumption great") only modifies the immediately preceding phrase. It does not reach back to modify other phrases that appear before the words, "or unless." If that were the intended meaning, it would be difficult to explain why the first two items in the list are separated only by the word "or," whereas the second and third items are separated by "or unless."⁹

8 "[A] widely accepted method of statutory construction is to read and examine the text of the statute and draw inferences concerning its meaning from its composition and structure." State v. Flynn, 464 A.2d 268, 271 (N.H. 1983) (citing 2A Sutherland, Statutes & Statutory Construction § 47.01 (Sands ed. 1973)).

9 To put this in technical terms, "unless" is a subordinating conjunction, the purpose of which is to clarify, limit, or otherwise modify the independent clause to which it is attached, see Morton S. Freeman, The Grammatical Lawyer, 303 (ALI-ABA Committee on Continuing Prof'l Educ. 1979), which in this matter states that all prisoners shall be bailable. The crucial point is that this portion of Section 14 in fact contains two separate dependent clauses. The second dependent clause, which is preceded by "or unless," is the only one containing an evidentiary limitation. As such, that limitation only applies to the subject of that dependent clause - the dangerousness exception.

There was, perhaps, one other way the General Assembly could have signaled that the proof/presumption constraint was intended to apply to all three exceptions: if it had placed a comma before the constraint as in: "unless a or b, or unless c, where the condition holds true." While this phrasing would have been a bit awkward, it at least could have suggested the conditional limitation applied to all three preceding items. As the Supreme Court has explained, a "qualifying phrase separated from antecedents by a comma is evidence that the qualifier is supposed to apply to all the antecedents instead of only to the immediately preceding one." Facebook, Inc., v. Duguid, 592 U.S. 395, 403-04 (2021) (quoting William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution 67-68 (2016)). The Second Circuit recently highlighted this principle when interpreting a federal bail statute with a structure analogous to Section 14. See United States v. Dai, 99 F.4th 136 (2d Cir. 2024). The enactment at issue in Dai permitted the Government to seek pretrial detention of a defendant charged with

a crime of violence, a violation of [18 U.S.C. §] 1591, or an offense listed in [18 U.S.C. §] 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed.

18 U.S.C. § 3142(f)(1)(A). Dai had allegedly threatened violence against Jewish students at Cornell University, and he was charged under 18 U.S.C. § 875(c) (relating to interstate communications), which the Government argued was a "crime of violence" for Section 3142(f)(1)(A) purposes. The Government accordingly sought to detain Dai pretrial. Dai did not dispute he had been charged with a crime of violence. His argument was that he could not be detained because the crime did not carry a prescribed maximum term of at least 10 years. The sole issue before the court was whether the maximum-sentence limitation appearing in the statute applied only to the last element in the list, or to all three. The court determined it only applied to the last element, i.e., offenses listed in 18 U.S.C. § 2332b(g)(5)(B). The court explained:

Reading "10 years or more" to apply only to the phrase to which it is attached is consistent with the statute's punctuation. No comma separates the phrase from the third category of offenses, which suggests that the two are directly connected.

Id. at 139 (citing Facebook, 592 U.S. at 403-04).

We must assume that in drafting the constitutional amendment, the Legislature carefully considered the precise wording and its meaning under standard English usage. If that body had intended a meaning whereby the evidentiary limitation would apply to all three exceptions, it would not have used the specific wording reflected above; instead, it would have separated each pair of items in the list by the exact same disjunction. In this respect, the reading favored by Respondent would require us to delete the second "unless," which we are not permitted to do. The Legislature could alternatively have added a comma between the list and the limiting clause, but it chose not to.¹⁰

10 We also observe that 11 years after Section 14 was amended, the General Assembly construed the text in accordance with our present interpretation. See Act of Aug. 27, 2009, P.L. 376, No. 39. Act 2009-376 amended the statutory right-to-bail provision to read as follows: "All prisoners shall be bailable by sufficient sureties, unless: (1) for capital offenses or for offenses for which the maximum sentence is life imprisonment; or (2) no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great." 42 Pa.C.S. § 5701. We do not suggest we are bound by such interpretation; we only note that the same branch of our government that drafted the constitutional amendment ultimately interpreted its own work in the same way we do today.

Still, Respondent argues that the plain English statement drafted by the Attorney General in connection with the ballot question for the 1998 amendment, see 25 P.S. § 2621.1, reflected that the proof/presumption constraint would apply to all three exceptions to the bail right. See Brief for Respondent at 9-10. He contends the statement should take precedence over a strict grammatical construction of the provision because "the emphasis in constitutional construction is upon the intent of the ratifying citizenry." Id. at 8 (quoting Bruno, 101 A.3d at 660). Amici Defender Association of Philadelphia and the Defender Association of Pennsylvania also highlight the plain English statement, and they add that in Grimaud v. Commonwealth, 865 A.2d 835 (Pa. 2005), this Court rejected a challenge to the sufficiency of the statement's explanation of the amendment's purposes. See Brief at 9 (citing Grimaud, 865 A.2d at 843-44).

While a review of the Attorney General's plain English statement does give us pause,¹¹ the passage in Bruno on which Respondent relies does not indicate the unambiguous text of a constitutional provision should be subordinated to the statement drafted by the Attorney General. It suggests, rather, that there are limits on the value of the debates and other legislative history leading up to the final wording of the amendment. See Bruno, 101 A.3d at 660 (explaining that "reliance upon legislative history, especially those statements memorializing the intent of individual framers, is particularly suspect in a constitutional context because the emphasis in constitutional construction is upon the intent of the ratifying citizenry"); cf. Commonwealth v. Lynn, 114 A.3d 796, 827 (Pa. 2015) (acknowledging that when the words of a statute are explicit, legislative history is of no moment).

11 That statement indicated: "The proposed amendment would have two effects. First, it would require a court to deny bail when the proof is evident or presumption great that the accused committed a crime punishable by death or life imprisonment. Second, it would require a court deciding whether or not to allow bail in a case in which the accused is charged with a crime not punishable by death or life imprisonment to consider not only the risk that the accused will fail to appear for trial, but also the danger that release of the accused would pose to any person and the community." Statement of the Attorney General Regarding Joint Resolution 1998-1, reprinted in 28 Pa. Bull. No. 33, at 3925 (Aug. 15, 1998). The Ballot Question drafted by the Secretary of the Commonwealth (with the Attorney General's approval), see 25 P.S. § 2755, was similar. It asked: "Shall the Pennsylvania Constitution be amended to disallow bail when the proof is evident or presumption great that the accused committed an offense for which the maximum penalty is life imprisonment or that no condition or combination of conditions other than imprisonment of the accused will reasonably assure the safety of any person and the community?" Ballot Question Regarding Joint Resolution 1998-1, reprinted in 28 Pa. Bull. No. 33, at 3925 (Aug. 15, 1998).

As for Amici's reliance on Grimaud, the analysis in that matter dealing with the Attorney General's statement centered on whether it was sufficient to explain the purpose and effect of the amendment. The challengers in Grimaud claimed it left out information concerning potential impacts upon other aspects of the state Charter, and additionally, that the electorate should have been told that flight risk constitutes the most important reason for preventative detention. This Court rejected those arguments, noting the statement need not provide an in-depth or comprehensive treatment of how a proposed amendment would affect the public. See Grimaud, 865 A.2d at 843 ("The Attorney General is to present a 'statement,' not a treatise."). Because the specific interpretive question presently before this Court was not raised in Grimaud, that decision's description concerning the statement's sufficiency has no impact on the instant controversy. In all events, it bears noting that in 1998, after both houses of the legislative branch had agreed to the amending language during two consecutive Assemblies as required by the amendment process, see Pa. Const. art. XI, § 1, the Secretary of the Commonwealth published that language in at least two newspapers in every county, as also required by that process. See 28 Pa. Bull. No. 33, at 3925 (Aug. 15, 1998) (reflecting such publication). These notices clearly informed the voters what the final wording of Section 14 would be should they approve the amendment.

Ultimately, then, we are left with a state of affairs in which the text of the amendment, the ballot question, and the plain English statement were all publicized to the voting public, and the matter proceeded to a public vote notwithstanding that some tension subsisted between the amendment's actual text as approved by the Legislature and the descriptions formulated by Executive branch officials. A majority of the voters approved the amendment and there is simply no way to know what materials each of them had read or what exactly was in their minds when they made their decision. But none of that detracts from the fact that the text of the amendment unambiguously limits the proof/presumption qualifier to the dangerousness exception, as developed above. Under these circumstances, we are not at liberty to contradict the evident meaning of the constitutional text on the grounds that some (but not all) of the information put before the voters suggested a different meaning. Ultimately, when the text of the constitutional provision under review is unambiguous, as it is here, it is the plain language itself which functions as our "polestar." Zauflik v. Pennsbury Sch. Dist., 104 A.3d 1096, 1124 (Pa. 2014) (quoting Bruno, 101 A.3d at 659).

Accordingly, we hold that the proof/presumption limitation does not apply to the life-offense exception to the right to bail as reflected in Article I, Section 14 of the Pennsylvania Constitution. As a consequence, in the wake of the 1998 amendment, when a defendant is charged with an offense for which the maximum sentence is life imprisonment the Constitution categorically precludes release on bail.¹² The common pleas court's January 25, 2023, order granting Respondent's motion for release on nominal bail is vacated and the matter is remanded to that court for further proceedings consistent with this opinion.¹³

12 This holding moots out the second question framed for our consideration. We add, as well, that nothing herein speaks to any means a defendant might have to challenge the validity of the charge - for example, via a petition for a writ of habeas corpus. See Commonwealth v. Hock, 728 A.2d 943, 945 n.2 (Pa. 1999); accord Brief for Amici Office of Attorney General of Pennsylvania and Pennsylvania District Attorneys Ass'n, at 9. The only task we have undertaken is a textual analysis of Article I, Section 14 of the Pennsylvania Constitution, as that provision was amended in 1998.

13 Respondent's Application to Expedite Review and Lift Temporary Stay is dismissed as moot.

Dougherty, Wecht, Brobson and McCaffery, Justices join the opinion.

Wecht, Justice files a concurring opinion.

Todd, Chief Justice files a dissenting opinion in which Donohue, Justice joins.

Donohue, Justice files a dissenting opinion in which Todd, Chief Justice joins.

CONCURRING OPINION

WECHT, JUSTICE.

Article 1, Section 14 guarantees every criminal defendant the right to bail, except when that defendant is: (1) charged with a capital offense; (2) charged with an offense that carries the possibility of life imprisonment; or (3) sufficiently dangerous such that "no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community" (hereinafter, the "dangerousness exception").¹The phrase "when the proof is evident or presumption great"² appears immediately after this list of the three exceptions. In Commonwealth v. Talley,³ we held that the "proof is evident or presumption great" standard is sui generis in the law, constituting a burden of proof that "lies in the interstice between probable cause and proof beyond a reasonable doubt."⁴ This peculiar standard, we said, requires "both a qualitative and quantitative assessment,"⁵ and "calls for a substantial quantity of legally competent evidence, meaning evidence that is admissible under either the evidentiary rules, or that is encompassed in the criminal rules addressing release criteria."⁶ Talley did not consider whether this evidentiary standard applies to the entire list of exceptions, or whether it applies only to the immediately preceding exception, the dangerousness exception. In dicta, we suggested that the standard might apply to all aspects of Article I, Section 14.⁷That suggestion notwithstanding, the question remained an open one, until today.

1 Pa. Const. art. I, § 14.

2 Id.

3 265 A.3d 485 (Pa. 2021).

4 Id. at 522.

5 Id.

6 Id. at 524 (footnote omitted).

7 Id. at 525-56.

The Majority finds no ambiguity in Article I, Section 14, and holds that the constitutional text and basic rules of grammar compel the conclusion that the "proof evident or presumption great" standard of proof applies only to the exception that immediately precedes it-the dangerousness exception. The Majority's analysis is compelling, and, ultimately, unavoidable. There is no other reasonable interpretation of our Constitution's bail provision that does not strain the plain meaning of the text or import to those terms a meaning that they cannot bear. Thus, I join the Majority in full.

"As an interpretive matter, the polestar of constitutional analysis undertaken by the Court must be the plain language of the constitutional provision[] at issue."⁸ We avoid reading the contested language in a "strained or technical manner,"⁹ and instead must "favor a natural reading."¹⁰ When the constitutional language at issue is "clear and explicit,"¹¹ we cannot "delimit the meaning of the words used by reference to a supposed intent."¹² By contrast, "if, in the process of undertaking explication of a provision of the Pennsylvania Constitution, any ambiguity becomes apparent in the plain language of the provision, we follow the rules of interpretation similar to those generally applicable when construing statutes."¹³

8 In re Bruno, 101 A.3d 635, 659 (Pa. 2014); see also League of Women Voters v. Commonwealth, 178 A.3d 737, 802 (Pa. 2018) ("The touchstone of interpretation of a constitutional provision is the actual language of the Constitution itself.").

9 Jubelirer v. Rendell, 953 A.2d 514, 528 (Pa. 2008).

10 Commonwealth ex rel. Paulinski v. Isaac, 397 A.2d 760, 766 (Pa. 1979).

11 League of Women Voters, 178 A.3d at 802.

12 Robinson Twp. v. Commonwealth, 83 A.3d 901, 945 (Pa. 2013) (quoting Commonwealth ex rel. MacCallum v. Acker, 162 A. 159, 160 (Pa. 1932)).

13 League of Women Voters, 178 A.3d at 802 (citing Robinson Twp., 83 A.3d at 945 and Commonwealth v. Omar, 981 A.2d 179, 185 (Pa. 2009)). An ambiguity arises when a provision is susceptible to two reasonable interpretations. A.S. v. Pa. State Police, 143 A.3d 896, 905-06 (Pa. 2016).

And so we must ask, is the language at issue ambiguous? Interpretation of a constitutional provision necessarily begins with an examination of the language chosen by the General Assembly when drafting the provision and ratified by the electorate; we inquire whether that language is "clear and explicit."¹⁴ In this case, our interpretation both begins and ends with an examination of the Constitution's language. As amended in 1998, Article I, Section 14 of the Pennsylvania Constitution states:

14 League of Women Voters, 178 A.3d at 802.

All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great[.]¹⁵

15 Pa. Const. art. I, § 14.

The structure of this sentence-a three-part list that ends with a qualifier- implicates the common tool of grammar known as the "last antecedent rule." In the context of legal interpretation, this rule holds that courts "should generally apply qualifying words or phrases to the words immediately preceding them."¹⁶ This means that qualifying words "do not extend to or include other words, phrases, or clauses more remote, unless such extension or inclusion is clearly required by the intent or meaning of the context or disclosed by an examination of the entire [constitutional provision]."¹⁷ Although the "last antecedent rule" is a necessary consideration in ascertaining the plain meaning of a term or phrase,¹⁸ it is not an inexorable command. The rule is stated in permissive terms-a court "should generally" apply it-rather than in mandatory language.¹⁹ Hence, mere invocation of the rule would not automatically preclude a finding of ambiguity where a term, phrase, or clause defies clear explication. The "last antecedent rule" itself recognizes that there are circumstances in which the context and meaning of the challenged provision preclude application of the general rule.²⁰

16 Commonwealth v. Packer, 798 A.2d 192, 198 (Pa. 2002) (citing 1 Pa.C.S. § 1903) (emphasis added).

17 Id. (quoting John Hancock Prop. & Cas. Ins. Co. v. Pa. Ins. Dept., 554 A.2d 618, 621-22 (Pa. Cmwlth. 1989)).

18 See 1 Pa.C.S. § 1903(a) ("Words and phrases shall be construed according to rules of grammar and according to their common and approved usage[.]").

19 Packer, 798 A.2d at 198.

20 See id. (precluding application of the "last antecedent rule" when "extension or inclusion [of more remote terms] is clearly required by the intent or meaning of the context or disclosed by an examination of the entire [constitutional provision]"); Omar, 981 A.2d at 187 (explaining that "the 'last antecedent rule' is not absolute").

Here, the Majority compellingly demonstrates why, in this instance, application of the "last antecedent rule" provides a plain and natural reading of Article I, Section 14. The text reveals no ambiguity. Nothing in that text suggests that the "proof evident or presumption great" standard applies to the more remote terms in the list. As the Majority aptly explains, any other reading would render unintelligible the drafters' second use of the word "unless" in the constitutional text.²¹ The textual disjunction of the three categories (capital, life, dangerousness) is the "natural reading"²² of the "clear and explicit" ²³ terms of Article I, Section 14.

21 See Maj. Op. at 10.

22 Isaac, 397 A.2d 760 at 766.

23 League of Women Voters, 178 A.3d at 802.

That reasonable people can and do disagree on the correct interpretation of this provision is due principally to a series of misinterpretations made by this Court, the Attorney General, and the Secretary of the Commonwealth at and after the time of the amendment's birth. Article I, Section 14 originally stated that "[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or presumption great[.]²⁴ In 1995, the General Assembly proposed to amend this provision by inserting the language "or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community" immediately after "capital offenses" and immediately before "when the proof is evident or presumption great."²⁵ Once the amendment was approved by the General Assembly, it was published for review and duly placed on the ballot for ratification (or rejection) by the Pennsylvania electorate.

24 Pa. Const. art I, § 14 (1997).

25 Grimaud v. Commonwealth, 865 A.2d 835, 839 (Pa. 2005).

As required by law, the Secretary of the Commonwealth prepared the ballot question. Unaccountably, here is what the Secretary supplied to Pennsylvania's voters:

Shall the Pennsylvania Constitution be amended to disallow bail when the proof is evident or presumption great that the accused committed an offense for which the maximum penalty is life imprisonment or that no condition or

combination of conditions other than imprisonment of the accused will reasonably assure the safety of any person and the community?²⁶

26 Id. at 841.

The reader will of course notice that the Secretary's placement of the phrase "proof is evident or presumption great" differed significantly from the location of that phrase in the actual constitutional amendment that the voters were being asked to ratify. This was sloppy and misleading. It told voters that the "proof is evident and presumption great" standard would apply to the life imprisonment exception as well as the dangerousness exception, a statement that conflicted directly with the plain language of the constitutional amendment.

The Attorney General compounded the error, bungling the "statement in plain English"²⁷ that he was required to issue at the time of the amendment's presentation to the electorate.²⁸ In that "plain English" statement, the Attorney General wrote that:

27 Id. at 842 (citing 25 P.S. 2621.1).

28 Id.

[t]he purpose of the ballot question is to amend the Pennsylvania Constitution to add two additional categories of criminal cases in which a person accused of a crime must be denied bail. Presently, the Constitution allows any person accused of a crime to be released on bail unless the proof is evident or presumption great that the person committed a capital offense. A capital offense is an offense punishable by death. The Pennsylvania Supreme Court has ruled that a person accused of a crime that is not a capital offense may be denied bail only if no amount or condition of bail will assure the accused's presence at trial.

The ballot question would amend the Constitution to disallow bail also in cases in which the accused is charged with an offense punishable by life imprisonment or in which no condition or combination of conditions other than imprisonment of the accused will reasonably assure the safety of any person and the community. The ballot question would extend to these two new categories of cases in which bail must be denied the same limitation that the Constitution currently applies to capital cases. It would require that the proof be evident or presumption great that the accused committed the

crime or that imprisonment of the accused is necessary to assure the safety of any person and the community.

The proposed amendment would have two effects. First, it would require a court to deny bail when the proof is evident or presumption great that the accused committed a crime punishable by death or life imprisonment. Second, it would require a court deciding whether or not to allow bail in a case in which the accused is charged with a crime not punishable by death or life imprisonment to consider not only the risk that the accused will fail to appear for trial, but also the danger that release of the accused would pose to any person and the community.²⁹

29 Id. at 842-43 (emphasis added).

For reasons ably described by today's Majority, the language italicized above was wrong, reflecting an unfortunate inattention to textual detail. Under the actual words of the amended provision, a court would be required to deny bail in any life or death charged case, regardless of the evidentiary showing. Like the Secretary, the Attorney General failed to closely read and correctly summarize the plain language that the General Assembly actually adopted and placed before the voters.

To make matters worse, in Grimaud, this Court implicitly approved these misleading descriptions of the amendment to Article I, Section 14. Although the Court was not called upon to interpret Article I, Section 14-as we are today-we were asked to evaluate the Attorney General's "statement in plain English" in order to determine whether it adequately set forth the "purpose, limitations, and effects" of the amendment on the ballot.³⁰ Not only did this Court fail to repudiate the Attorney General's statement as proffering an incorrect interpretation of the proposed amendment; it also failed even to subject the statement to close inspection. Instead, this Court gave the statement only a passing glance, opining that the Attorney General was not required to provide an "in depth illustration of how a proposed amendment to the constitution may affect the public,"³¹explaining that the Attorney General was not bound to provide a "comprehensive recitation of all ramifications of a constitutional amendment," and emphasizing that the Attorney General's obligation is to "present a 'statement' not a treatise."³² This Court offered no criticism of the Attorney General's description of the amended language. In failing to do so, this Court, like the Secretary of the Commonwealth and the Attorney General, shares responsibility for the confusion that now renders plausible (albeit unsuccessful) the arguments advanced here by Yard and by Chief Justice Todd and Justice Donohue in their learned and erudite dissents.³³ This is a discussion worth having.

30 Id. at 840; see also 25 P.S. § 2621.1 ("Whenever a proposed constitutional amendment or other State-wide ballot question shall be submitted to the electors of the Commonwealth in referendum, the Attorney General shall prepare a statement in plain English which indicates the purpose, limitations and effects of the ballot question on the people of the Commonwealth.").

31 Grimaud, 865 A.2d at 843 (quoting Lincoln Party v. General Assembly, 682 A.2d 1326, 1332 (Pa. Cmwlth. 1996)).

32 Id.

33 See Diss. Op. at 14-18 (Donohue, J., dissenting).

Regardless of how we got here, nothing can change the fact that the bail portion of Article I, Section 14 today bears only one grammatically reasonable interpretation. In such circumstances, judicial interpretation is at an end. Textual interpretation is not a boundlessly discretionary process. We cannot pick and choose an atextual path that we prefer because we are presented with compelling equities or objectionable consequences. Justice Donohue eschews this well-settled methodology. Instead, Justice Donohue would elevate to primacy over the text the intent she perceives to underly the constitutional provision at issue. Justice Donohue would "take into account the ballot question put to the voters" when construing "the meaning of an amendment."³⁴The desire to give effect to the will of the voters is understandable. I do not disagree that, for all practical purposes, the voters were misled. The constitutional provision that they were told they were approving is not the one that they got. That is unfortunate, and it reflects poorly on those responsible for the error. But here we are. There is no "ballot question exception" to our obligation to apply the words that actually appear in our Constitution. It is not a "bait and switch"³⁵ to enforce unambiguous constitutional language. It is our duty. Justice Donohue does not get to write an alternative Constitution.

34 Id. at 2.

35 Id. at 2.

The precedents cited by Justice Donohue do not permit us to reimagine constitutional interpretation in the manner that she proposes. Justice Donohue cites a litany of cases in which this Court has approved of references to, or consideration of, the history and structure of a constitutional provision, the will of the voters that ratified it, the interpretations of other similar provisions from other states, and the policy considerations underlying the provision.³⁶ None of these cases allows what Justice Donohue proposes: leapfrogging the plain language that appears in the text of our Constitution in favor of the presumptive will of those who voted on a ballot question. Our precedents do not permit this, and our standard rules of interpretation prohibit it.³⁷ We are never permitted to disregard clear and unambiguous language in the constitutional text, not even when that language differs from that presented in a ballot question.

36 Id. at 3-6 (listing cases).

37 See, e.g., 1 Pa.C.S. § 1921(b) ("When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.").

Justice Donohue concedes, but nonetheless violates, the principle that we do not allow "'the supposed intent' of voters to cloud clear and explicit constitutional language."³⁸This case is different, Justice Donohue insists, because here we deal not with "supposed intent"; instead, we "know precisely the actual intent of the electorate."³⁹ Justice Donohue offers no support in our cases for this novel and swashbuckling sliding-scale intent test. Nor does Justice Donohue explain how a court is supposed to assess whether the presumptive intent of a provision is imbued with sufficient clarity to circumvent our otherwise mandatory fidelity to the "clear and explicit constitutional language."⁴⁰ I agree with Justice Donohue that this case presents a "unique scenario."⁴¹ It is cause for consternation and dismay. When tears subside, the text of the Constitution reads the same. Justice Donohue's angst over the flouted will of the voters aside, Pennsylvanians live under their Constitution. Justice Donohue disagrees with the Court today as to whether the Constitution's text is ambiguous. Were it ambiguous, I readily would agree with Justice Donohue that the history of the provision and the intent of the voters compels a result entirely different from the one that the Majority and I reach today. But wishing will not make it so. I do not ignore the voters' intent by choice; I am not permitted to consider it here by law.

38 Diss. Op. at 11 n.7 (Donohue, J., dissenting) (citation omitted).

39 Id. (emphasis in original).

40 Id.

41 Id.

Unlike Justice Donohue, I also would not resort to (and have long since disavowed) reliance on floor statements by individual legislators in the course of attempting to discern the meaning of the General Assembly's collective enactments.⁴² Yet, while the unambiguous constitutional text drives the result in this case regardless,⁴³ I note that even Justice Donohue concedes that sundry legislators offered "various views," a circumstance that can provide no reliable support for an alternative interpretation of the provision in question.⁴⁴ Justice Donohue insists that this opaque record of floor debates contains no evidence that the legislature intended the "proof is evidence or presumption great" standard to apply only to the dangerousness exception. Yet, Justice Donohue cites no evidence that the General Assembly intended the opposite, either. The best that Justice Donohue can proffer is the absence of any express statements by those legislators who rose to speak to the effect that the amendment aimed to limit the evidentiary requirement to the dangerousness exception.⁴⁵ In order to make this argument, Justice Donohue necessarily is forced to ascribe beliefs and statements of a few to the collective will of the whole, a jurisprudential methodology that is profoundly flawed. "Our goal is not to ascertain and effectuate the intent of [a few legislators;]"⁴⁶ it is to ascertain the expressed will of the entire General Assembly that approved the amendment and of the voters who ratified it.⁴⁷ When we read the text that was ultimately inserted into Article 1, Section 14, we are required to take them at their word.

42 See, e.g., Harmon v. Unemployment Comp. Bd. Of Rev., 207 A.3d 292, 311-12 n.6&7 (Pa. 2019) (Wecht, J., concurring); Snyder Bros., Inc. v. Pa. Pub. Util. Comm'n, 198 A.3d 1056, 1081-84 (Pa. 2018) (Wecht, J., concurring).

43 See In re Bruno, 101 A.3d at 659 ("As an interpretive matter, the polestar of constitutional analysis undertaken by the Court must be the plain language of the constitutional provision[] at issue.").

44 Diss. Op. at 7 & n.5 (Donohue, J., dissenting).

45 Id.

46 Harmon, 207 A.3d at 312 (Wecht, J., concurring).

47 In any event, even Justice Donohue cannot (and does not) maintain that those legislators that she chooses to cite had anything to say about the particular issue that we decide today. Rather, Justice Donohue invokes the statements for the proposition that no lawmaker appears to have stated that the amendment aimed to (or did) limit the evidentiary requirement to the dangerousness exception. Such commentary was apparently absent. No doubt many other things were absent as well, including any cogent recognition or demonstration by lawmakers of how confusing and antiquated the relevant textual language is (and was).

For her part, Chief Justice Todd refuses to be constrained by the words of the constitutional text. She takes us to task for "sacrific[ing] a constitutional provision on the altar of plain language interpretation."⁴⁸ To the charge of feeling bound by the text of our Constitution I must plead guilty. However "blithe[]" and "myopic" this might seem to the Chief Justice,⁴⁹ she offers no account of how and when this Court is free to manufacture an alternative text. Such an imaginary text might be more to the dissents' liking (and, indeed, more to ours), and more consistent with the bungled readings offered by an Attorney General and Secretary of State of yesteryear, but it disappears like fairy dust when we hold it up against the actual words of the actual text in the light of day.

48 Diss. Op. at 1 (Todd, C.J., dissenting).

49 Id. at 2.

The Chief Justice maintains that, as we are interpreting our Constitution, "we have a special duty, our highest duty, to get it right." While a parent fighting for custody or an inmate seeking postconviction relief might think his or her claim just as "special," I freely acknowledge the weightiness of the issue here. All the more reason for unswerving fidelity to the words of the Constitution, not to our own view of what the Constitution should say. And here is where the Chief Justice's dissent really takes flight, asserting that "[R]ules [such as plain language] have their exceptions. Rules are powerful only to the degree they do justice. Rules can be sacrosanct, until they must not be."⁵⁰ That is not law; it is license. Self-license. It is a view that judges apply rules only when, and to the extent that, they choose to do so. Of course, this is not a serious approach to interpretation of a Constitution. It is a frank avowal of power to "do justice" according to judicial whim, regardless of what the text actually instructs. That is not how this business works.⁵¹

50 Id. (emphasis added).

51 I am again reminded here of the famous encounter between Justice Oliver Wendell Holmes, Jr., and Judge Learned Hand. Judge Hand recalled it as follows:

I remember once I was with [Justice Holmes]; it was a Saturday when the Court was to confer. It was before we had a motor car, and we jogged along in an old coupé. When we got down to the Capitol, I wanted to provoke a response, so as he walked off, I said to him: "Well, sir, goodbye. Do justice!" He turned quite sharply and he said: "Come here. Come here." I answered: "Oh, I know, I know." He replied: "That is not my job. My job is to play the game according to the rules."

Learned Hand, A Personal Confession, in The Spirit of Liberty 302, 306-07 (Irving Dilliard ed., 3d ed. 1960).

Chief Justice Todd would treat this case as "a very special" one, a case that she "suspect[s] . . . is one of a kind."⁵² I can take no comfort in this "one of a kind" approach. Who knows what compelling case tomorrow might bring? All manner of cases that come before us cry out for "justice". I suspect that there is not just "one of a kind," or even two or three of a kind; there are thousands. This is not a yardstick. It is an unending enterprise in judicial lawmaking. Fortunately, notwithstanding the eloquence and fervor of my dissenting colleagues, the majority elects to hew to the text. Messy and unfortunate as the process that got us here, this is where we are. Once we unmoor ourselves from the text of the Constitution and decide that it really means what it should have said rather than what it does say, we have embarked on a voyage that knows no boundaries, or only the boundaries that may happen to exist in the minds or hearts of a court's majority on a given day. To "get the Constitution right" in the way that she thinks it should rightly be written, Chief Justice Todd would "bend" "the rules".⁵³ With the idea that we can "bend" the words of the constitutional text to suit our preference, I respectfully disagree.

52 Diss. Op. at 2 (Todd, C.J., dissenting).

53 Id.

In a perfect world, one that has proven consistently elusive, the framers of the amendment to Article I, Section 14 would have seen fit to modernize the archaic language of this bail section, clarifying or revising the "proof is evident or presumption great" verbiage, which traces back to the powdered wig days of our 1790 Constitution. But they failed to do so. Instead, the framers of the 1990's chose simply to drop into the provision the new language concerning life imprisonment and dangerousness, without any apparent regard to the impact of this word dump upon the meaning of the sentence as a whole. This sowed confusion and disagreement over constitutional meaning that has bedeviled this Court and burdened all Pennsylvanians for decades past and decades foreseeable. This supplies an object lesson in why citizens, legislators, and jurists should give careful and scrupulous attention to the specific words, phrases, and punctuations of amendments that are proposed for our foundational charter. This is serious business, and it requires serious thought and attention. As Chief Justice John Marshall reminded us long ago, "it is a [C]onstitution that we are expounding."⁵⁴

54 McCulloch v. Maryland, 17 U.S. 316, 407 (1819) (emphasis omitted).

Today's decision undoubtedly creates an anomalous and unfortunate result.⁵⁵ The constitutional provision that the voters ratified is not the same one for which they were led to believe they were voting. But, the intent of voters is a relevant consideration only when the chosen language is unclear. That is not the case here. The text is the text. We are duty-bound to give effect to its plain, unambiguous language.

55 The obvious solution to such anomalies is not to judicially rewrite our Constitution, but rather to amend it. Pennsylvanians know how to amend their Constitution. They have done it almost fifty times since we adopted our Commonwealth's first Constitution in 1776.

DISSENTING OPINION

DONOHUE, JUSTICE.

In this appeal, we are asked to decide whether the evidentiary requirement of Article 1, Section 14 of our charter, "when the proof is evident or presumption great," applies to prisoners for whom the maximum penalty is life imprisonment. This case presents a question of constitutional interpretation of an amendment to our charter that was adopted based on a majority vote on a ballot question put to the voters of our Commonwealth during the general election in 1998. Citizens of Pennsylvania cast their votes on constitutional amendments by answering ballot questions drafted by the Secretary of the Commonwealth.¹ The ballot question is designed to "fairly, accurately, and clearly apprise the voter of the question or issue on which the electorate must vote."² In the 1998 general election, voters cast their votes in response to the ballot question- not the language of the amendment.³ In deference to this process, it is my view that when we are asked to construe the meaning of an amendment, we must take into account the ballot question put to the voters where it directly and clearly addresses the issue at hand.

1 See infra pp. 8-9.

2 Sprague v. Cortes, 145 A.3d 1136, 1142 (Pa. 2016) (opinion in support of denying plaintiffs' relief) (Baer, J.); id. at 1151-52 (opinion in support of granting plaintiffs' relief) (Todd, J.); Stander v. Kelley, 250 A.2d 474, 480 (Pa. 1969).

3 The language of the amendment itself was not on the ballot but instead, the amendment was published in two newspapers in every county, as pointed out by the Majority. Pa. Const. art. XI, § 1; Majority Op. at 14 (citing 28 Pa. Bull. 33, at 3925 (Aug. 15, 1998)). The Concurring Justice's reference to "the text" that the entire General Assembly and voters "actually chose," is misleading: the voters only had the option of responding to the ballot question; voters did not have the text of the amendment before them when casting their ballots. Concurring Op. at 9 (Wecht, J.).

Here, the ballot question relevant to the amendment to Section 14 asked only:

Shall the Pennsylvania Constitution be amended to disallow bail when the proof is evident or presumption great that the accused committed an offense for which the maximum penalty is life imprisonment or that no condition or combination of conditions other than imprisonment of the accused will reasonably assure the safety of any person and the community?

By answering this question affirmatively, the voters unequivocally intended that bail will not be allowed when the proof is evident or presumption great that an accused committed an offense for which the maximum penalty is life imprisonment. And yet, the Majority concludes that the intent of the voters was to deny bail, without regard to the proof or presumption. The Majority accomplishes this bait and switch by misemploying rules of constitutional construction and, in so doing, effectively nullifies the vote on the ballot question put to the voters in 1998.

Though prisoners are generally entitled to bail, Article I, Section 14 of the Pennsylvania Constitution ("Section 14") establishes three exceptions to that rule. Section 14, as amended in 1998, provides:

All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great; and the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion and the public safety may require it.

Pa. Const., art. I, section 14. As noted, this case requires us to determine whether the evidentiary requirement in Section 14, "when the proof is evident or presumption great[,]" applies to prisoners for whom the maximum sentence is life imprisonment. Id. If the evidentiary requirement applies, Section 14 requires the Commonwealth to demonstrate that the proof is evident and the presumption great that the defendant committed an offense subject to a life imprisonment sentence before the court may deny bail. Without the evidentiary requirement, once the Commonwealth files a charge subject to life imprisonment, Section 14 would categorically preclude bail. See Majority Op. at 15.

My analysis of the constitutional text leads me to the conclusion that, consistent with the language of the ballot question, the evidentiary requirement applies to the life imprisonment exception. When interpreting constitutional language, we are mindful that the language of the Constitution controls and that it must be interpreted "in its popular sense, as understood by the people when they voted on its adoption." Pa. Env't Def. Found. v. Commonwealth, 161 A.3d 911, 929 (Pa. 2017). The touchstone of our analysis is the plain language, In re Bruno, 101 A.3d 635, 659 (Pa. 2014), and we regard the language of our Constitution "as the embodiment of the will of the voters who adopted it[.]" Washington v. Dep't of Pub. Welfare, 188 A.3d 1135, 1144 (Pa. 2018) (citing Stilp v. Commonwealth, 905 A.2d 918, 939 (Pa. 2006)).

Certainly, we always begin with a text-driven analysis of constitutional provisions, but we ultimately "look not only to the letter of the words but also the spirit behind them." Pennsylvania Prison Socy. v. Commonwealth, 776 A.2d 971, 978 (Pa. 2001) (citing Commonwealth ex rel. Schnader v. Beamish, 164 A. 615, 616 (Pa. 1932)). In fact, we have said that

where multitudes are to be affected by the construction of an instrument, great regard should be paid to the spirit and intention. And the reason for it is an obvious one. A constitution is made, not particularly for the inspection of lawyers, but for the inspection of the million, that they may read and discern in it their rights and their duties; and it is consequently expressed in the terms that are most familiar to them.

Id. (citing Beamish, 164 A. at 616). In this effort, we routinely look to the history of constitutional provisions without regard to identifying an ambiguity in the text.

For instance, when interpreting Article III of the Constitution, we explained that, "[s]ince our Court regards the language of our Constitution as the embodiment of the will of the voters who adopted it, Stilp, 905 A.2d at 939, it is instructive to begin our consideration … with a brief history of the circumstances which caused the people to include [the constitutional provisions at issue] in our organic charter of governance, as well as the fundamental purposes which the people intended these amendments to serve." Washington, 188 A.3d at 1144-45. Similarly, in interpreting Article 5, Section 10(e) of the Constitution of 1968, we rejected a well-made textual argument as "unpersuasive in the context of the legislative history of the Constitution of 1968 and the clear public policy[.]" In re Determination of Priority of Comm'n Among Certain Judges, 427 A.2d 153, 156 (Pa. 1981). See also Scarnati v. Wolf, 173 A.3d 1110, 1118 (Pa. 2017) (stating that the constitutional language controls and that we consider the circumstances attending the formation of the constitutional provision at issue "'and the construction probably placed upon it by the people'" as well as existing decisional law, policy considerations and extrajurisdictional caselaw) (citing Commonwealth v. Harmon, 366 A.2d 895, 897 (Pa. 1976)); accord Sprague v. Cortes, 145 A.3d 1142, 1154 (Pa. 2016) (opinion in support of granting plaintiffs' relief) (Wecht, J.) (explaining that in determining the intent of the voters we may consider, inter alia, the text, history, structure, underlying values and interpretations of other states) (citing Thomas G. Saylor, Prophylaxis in Modern State Constitutionalism: New Judicial Federalism and the Acknowledged Prophylactic Rule, 59 N.Y.U. Annual Survey of Am. L. 283, 290-91 (2003)).

Many of our cases reveal an effort to temper the dogmatic plain language approach adhered to in statutory construction cases when we are faced with questions of constitutional construction. We do so with consideration of the history and context in which the constitutional provision was adopted. For instance, in our interpretation of the Environmental Rights Amendment, we stated that "in addition to our explicatory analysis of the plain language, we may address, as necessary, any relevant decisional law and policy considerations argued by the parties" as well as extrajurisdictional caselaw. Robinson Twp. v. Commonwealth, 83 A.3d 901, 943-44 (Pa. 2013) (citing Saylor, supra, at 290-91). We considered the legislative history of the amendment and determined that it supported our plain interpretation of the Environmental Rights Amendment. Id. at 955.⁴Similarly, in League of Women Voters v. Commonwealth, 178 A.3d 737, 802 (Pa. 2018), we determined that the language of the provision under review, Article I, Section 5 of the Pennsylvania Constitution "clearly and unambiguously" mandated "that all voters have equal opportunity to translate their votes into representation[,]" and then we undertook consideration of the history, caselaw and other matters related to the provision and determined that the plain language interpretation was "consistent" with the history of the provision as well as the meaning ascribed to it through our case law. Id. at 804. In other words, we did not blindly adhere to sometimes archaic textual language without consideration of the context within which it was adopted and had been interpreted. Likewise, here, it is imperative to consider the clearest representation of the voters' intent: the ballot question put to the voters. Thus, in the construction of constitutional amendments that have been presented to the voters by way of a ballot question, it is obvious to me that we must look to the actual ballot question to inform our discernment of the intent of the voters.

4 In that and other cases, we have stated that the plain language controls, but we have nonetheless undertaken analysis of other factors notwithstanding that we reached a conclusion initially based on the plain language of the provision. Robinson Twp., 83 A.3d at 944-45; League of Women Voters, 178 A.3d at 802.

The history of Section 14 leading to its amendment in 1998 illustrates that the expansion of the evidentiary requirement was foundational to the bail exception. The evidentiary requirement applied to the bail exception for capital offenses, which was the only exception for over 200 years. From the original Pennsylvania Constitution of 1790 until 1998, all Pennsylvania prisoners were entitled to bail except those held for capital offenses when the proof was evident or presumption great that they committed the offense. Pre-amendment, the provision read: "All prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident or presumption great; and the privilege of the writ of habeas corpus shall not be suspended, unless when, in case of rebellion or invasion, the public safety may require it." Pa. Const., art. IX, § XIV (1790 & 1838). In the 1874 Pennsylvania Constitution, the provision was moved to Article I, where it has remained since. Pa. Const., art. I, § XIV (1874); Pa. Const. art. I, section 14 (1968). Thus, Section 14 established the capital offense exception to the right to bail, and it entrenched the requirement that the right to bail for capital offenses may be denied only when the proof is evident or presumption great that the defendant committed the capital offense.

In 1995, members of the General Assembly sought to amend the provision to add two other exceptions to the unqualified right to bail, one for persons charged with offenses subject to a maximum sentence of life imprisonment and another for dangerousness. After a majority of voters voted in the affirmative to the ballot question presented in 1998, Article I, Section 14 was amended to read:

All prisoners shall be bailable by sufficient sureties, unless for capital offenses or offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great; and the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion and the public safety may require it.

Pa. Const., art. I, section 14 (emphasis added to illustrate added text).

The amendment added text and did not delete any text. The 1998 amendment was clearly designed to add exceptions for life offenses and dangerousness without modifying application of the proof is evident or presumption great qualifier to capital offenses. In the General Assembly debates regarding the provision, legislators stood to express various views.⁵ Not one intimated that they were reconsidering application of the "proof is evident or presumption great" language to capital offenses. In the pages of debate, there is no evidence that an additional purpose of this amendment was to alter the capital offense exception so as to remove its evidentiary requirement. There is no support for the Majority's contention that the General Assembly or voters intended the evidentiary requirement to be attached to the dangerousness exception but no longer apply to the capital offense exception. Not only do legislative debates support my view of the provision, but so do publicized expressions of the Secretary of the Commonwealth and the Attorney General, contemporaneous to the passage of the language of the amendment by the General Assembly, which demonstrate that they also understood the evidentiary requirement as applying all three exceptions.

5 While some legislators voiced support for the amendment because it would bring Pennsylvania in line with other jurisdictions, Senate Legis. J. 30 (Feb. 6, 1995) (Senator Fisher), others expressed concern that the addition of the dangerousness exception would undermine the presumption of innocence or that it was poorly drafted. Senate Legis. J. 30-32 (Feb. 6, 1995) (Senator Fumo); id. at 32-33 (Senator Williams); House Legis. J. 246 (April 18, 1995) (Mr. Veon); House Legis. J. 1126 (May 4, 1998) (Mr. Armstrong).

Proposed constitutional amendments must be agreed upon by a majority of the members elected to each House, then published three months before the next general election in at least two newspapers in every county, then agreed upon by a majority of the members elected to each House in the next elected General Assembly. Pa. Const. art. XI, § 1. Next, the Secretary of the Commonwealth publishes the amendment again, then it is "submitted to the qualified electors of the State in such manner, and at such time at least three months after being so agreed to by the two Houses, as the General Assembly shall prescribe;" and, if approved by a majority of voters, the amendment becomes part of the constitution. Id. The Election Code, Act of June 3, 1937, P.L. 1333, as amended 25 P.S. §§ 2601-3556, designates the Secretary of the Commonwealth with the duty to determine the form of the ballot question. 25 P.S. § 2755 (providing that "proposed constitutional amendments shall be printed on the ballots or ballot labels in brief form to be determined by the Secretary of the Commonwealth with the approval of the Attorney General").

The Secretary is tasked with the duty "[t]o certify to county boards of elections … the form and wording of constitutional amendments or other questions to be submitted to the electors of the State at large." 25 P.S. § 2621(c). The ballot question "shall appear on the ballot labels, in brief form, of not more than seventy-five words, to be determined by the Secretary of the Commonwealth in the case of constitutional amendments[.]" 25 P.S. § 3010(b).

The General Assembly has also prescribed the following:

Whenever a proposed constitutional amendment or other Statewide ballot question shall be submitted to the electors of the Commonwealth in referendum, the Attorney General shall prepare a statement in plain English which indicates the purpose, limitations and effects of the ballot question on the people of the Commonwealth. The Secretary of the Commonwealth shall include such statement in his publication of a proposed constitutional amendment as required by Article XI of the Constitution of Pennsylvania. The Secretary of the Commonwealth shall certify such statement to the county boards of elections who shall publish such statement as a part of the notice of elections required by section 1201 or any other provision of this act. The county board of elections shall also require that at least three copies of such statement be posted in or about the voting room outside the enclosed space with the specimen ballots and other instructions and notices of penalties. In election questions which affect only one county or portion thereof, the county board of elections shall fulfill these requirements in the place of the Attorney General and the Secretary of the Commonwealth.

Act of February 19, 1986, P.L. 29, No. 11, 25 P.S. § 2621.1 (emphasis added). Section 1201 requires that each county board give published notice of an election in the ten days prior to the election. 25 P.S. § 3041. The notice shall set forth, inter alia, "the text of all constitutional amendments and other questions to be submitted at such election." Id. The notice "may include a portion of the form of ballot or diagram of the face of the voting machine in reduced size." Id.

Critically, in 1998, the Secretary of the Commonwealth drafted the ballot question that went before the voters as follows:

Ballot Question Regarding Joint Resolution 1998-1

Shall the Pennsylvania Constitution be amended to disallow bail when the proof is evident or presumption great that the

accused committed an offense for which the maximum penalty is life imprisonment or that no condition or combination of conditions other than imprisonment of the accused will reasonably assure the safety of any person and the community?

Ballot Question Regarding Joint Resolution 1998-1, reprinted in 28 Pa. Bull. 33, at 3925 (Aug. 15, 1998).⁶ An affirmative vote thus indicated that the Pennsylvania Constitution would be amended "to disallow bail when the proof is evident or presumption great that the accused committed an offense for which the maximum penalty is life imprisonment[.]" Id. It is indisputable that the voters' understanding and intention was that the evidentiary requirement would apply to the newly added exceptions.

6 It is notable that the General Assembly, through its leadership, did not attempt to enjoin the use of the ballot question as one might expect if it so blatantly misstated the actual amendment as determined by the Majority.

Given that our constitutional interpretation aims to understand the language "as the embodiment of the will of the voters who adopted it[,]" my colleagues' willingness to completely disregard the ballot question is disturbing. Washington, 188 A.3d at 1144; see also Commonwealth v. Williams, 129 A.3d 1199, 1213-14 (Pa. 2015). We have often said that we interpret the Constitution "in its popular sense, as understood by the people when they voted on its adoption." Robinson Twp., 83 A.3d at 943 (citing Ieropoli v. AC & S Corp., 842 A.2d 919, 925 (Pa. 2004)). "Towards this end, we avoid reading the provisions of the Constitution in any 'strained or technical manner.'" Id. (citing Jubelirer v. Rendell, 953 A.2d 514, 528 (Pa. 2008)). Further, we favor a natural reading of the constitution, "which completely conforms to the intent of the framers and which reflects the views of the ratifying voter." Id. at 943-44 (citing Commonwealth ex rel. Paulinski v. Isaac, 397 A.2d 760, 766 (Pa. 1979)).

Yet today, the Majority and Concurrence engage in a strained and technical exercise to interpret Section 14 in a manner that conflicts directly with the ballot question voters answered in the affirmative. Despite the obviousness of the conflict, the Majority and Concurrence decide that the best course is to disregard the intent of the voters. See Concurring Op. at 6, 10 (Wecht, J.) (recognizing that the ballot question told voters that the standard applied to the three exceptions, "a statement that conflicted directly with the plain language of the constitutional amendment" and that "[t]he constitutional provision that the voters ratified is not the same one that they were led to believe they were voting for"). By willfully disregarding the voters' affirmative answer to the ballot question, my colleagues have not only lost sight of our well-established interpretative focus on the intention of the voters but also the meaning of counting votes in a democracy.⁷

7 We have stated that we do not allow the "supposed intent" of voters to cloud clear and explicit constitutional language. Com. ex rel. Mac Callum v. Acker, 162 A. 159, 160 (Pa. 1932); League of Women Voters v. Commonwealth, 178 A.3d 737, 802 (Pa. 2018); Robinson Twp. 83 A.3d at 944. But in this case, we are dealing with neither the supposed intent of the voters nor "clear and explicit" constitutional language. We know precisely the actual intent of the electorate based on the specific language of the ballot question. This is a unique scenario where we know that every vote represents an affirmative answer to the ballot question that clearly answers the exact question before this Court. It is a fiction to suggest otherwise. See Majority Op. at 15 ("there is simply no way to know what materials each of [the voters] had read or what exactly was in their minds when they made their decision"). The archaic language and sentence structure of Section 14 is anything but clear or explicit. A definitive meaning cannot be discerned even if one were to take heed of the Concurring Justice's suggestion for voters to "give careful and scrupulous attention to the specific words, phrases, and punctuations[.]" Concurring Op. at 9. This begs the question-even if a voter located the proposed amendment in the newspaper and engaged in a "careful and scrupulous" interpretation of it, how does she vote when her interpretation of the text of the amendment directly conflicts with the ballot question? If a no vote was cast in response to the ballot question, the result would also not comport with the Majority's interpretation.

Aside from the ballot question, the Attorney General issued a plain English statement at the time of the adoption of the Section 14 which was placed before the voters. In Commonwealth v. Grimaud, 865 A.2d 835 (Pa. 2005), this Court reproduced the plain English statement presented to voters:

The purpose of the ballot question is to amend the Pennsylvania Constitution to add two additional categories of criminal cases in which a person accused of a crime must be denied bail. Presently, the Constitution allows any person accused of a crime to be released on bail unless the proof is evident or presumption great that the person committed a capital offense. A capital offense is an offense punishable by death. The Pennsylvania Supreme Court has ruled that a person accused of a crime that is not a capital offense may be denied bail only if no amount or condition of bail will assure the accused's presence at trial.

The ballot question would amend the Constitution to disallow bail also in cases in which the accused is charged with an offense punishable by life imprisonment or in which no condition or combination of conditions other than imprisonment of the accused will reasonably assure the safety of any person and the community. The ballot question would extend to these two new categories of cases in which bail must be denied the same limitation that the Constitution currently applies to capital cases. It would require that the proof be evident or presumption great that the accused committed the crime or that imprisonment of the accused is necessary to assure the safety of any person and the community.

The proposed amendment would have two effects. First, it would require a court to deny bail when the proof is evident or presumption great that the accused committed a crime punishable by death or life imprisonment. Second, it would require a court deciding whether or not to allow bail in a case in which the accused is charged with a crime not punishable by death or life imprisonment to consider not only the risk that the accused will fail to appear for trial, but also the danger that release of the accused would pose to any person and the community.

Grimaud, 865 A.2d at 842-43 (quoting plain English statement, Joint Resolution 1998-1, reprinted in 28 Pa. Bull. 33, at 3925 (Aug. 15, 1998)) (emphasis added). As Yard points out, in Grimaud, this Court rejected a challenge to the adequacy of the plain English statement, and we characterized it as a "sufficient explanation of the purpose, limitations, and effects of the bail amendment[.]" Id. at 843-44. Thus, the Attorney General's stated interpretation, held by this Court to be a sufficient explanation of the amendment's purpose, limitations and effects, mirrored that of the Secretary of the Commonwealth- the evidentiary requirement applied to each of the three exceptions listed. Given the clarity of the ballot question and the plain English statement, it is impossible to conceive that the voters did not intend that the evidentiary qualification would apply to individuals charged with offenses subject to sentences of life imprisonment.

As in Grimaud, in Commonwealth v. Talley, 265 A.3d 485 (Pa. 2021), we interpreted the evidentiary requirement as applying to the life sentence exception. See Talley, 265 A.3d at 513 ("To satisfy one of these exceptions, the Commonwealth must offer 'evident' proof or establish a 'great' presumption that the accused: (1) committed a capital offense, (2) committed an offense that carries a maximum sentence of life imprisonment, or (3) presents a danger to any person and the community, which cannot be abated using any available bail conditions."). These cases prove that thoughtful jurists believed Section 14 applied the evidentiary requirement to each of the exceptions listed. Because those cases were not as pointedly focused on the question before us in this appeal, I do not rest on them alone in reaching my interpretation of Section 14. However, it is notable that all of these sources - the plain English statement, the ballot question, and both of this Court's pronouncements - follow the same current to the same end. The evidentiary requirement always applied to the capital offense exception, and when the General Assembly drafted the amendment, and when the voters voted to approve the amendment guided by the interpretation drafted by the Attorney General, and each time this Court reviewed the provision in the past thirty years, there was a universal understanding that the evidentiary requirement continued to apply to the capital offense limitation and applied to each of the other new exceptions added in 1998 as well. The Majority has identified no source cutting against Yard's interpretation, let alone a source authorizing the Pennsylvania Constitution to be amended other than as understood by the ratifying voters.

The clear intent of the voters outweighs the mechanical application of obscure rules of grammar, as 'the emphasis in constitutional construction is upon the intent of the ratifying citizenry.'" Bruno, 101 A.3d at 660. Ultimately, because the Majority is entrenched in its conclusion that "the text of the amendment unambiguously limits the proof/presumption qualifier to the dangerousness exception[,]" it is blind to the ballot question put to the voters, the plain English statement, Grimaud, the history of the amendment and contrary grammatical considerations. Majority Op. at 14-15.

Instead, in its analysis, the Majority engages in a strained grammatical exercise to explain that the language of Section 14 unambiguously provides that the evidentiary requirement only applies to the dangerousness exception. It does so while willfully ignoring that an affirmative vote at the General Election of 1998 indicated the exact opposite. Even if I agreed with the Majority that the plain language of Section 14 limited application of the evidentiary standard to the dangerousness exception only, which I do not, its result is at tension with the integrity of our election process. The vote of the people is binding, and it did not authorize the amendment to Section 14 as interpreted by the Majority. Assuming that the interpretation of Section 14 expounded by the Majority and Concurrence is correct, my learned colleagues have all but ensured a future request for a declaration that the 1998 amendment to Section 14 was a nullity given that the ballot question failed to "fairly, accurately, and clearly apprise the voter of the question or issue on which the electorate" was voting. Sprague, 145 A.3d at 1142 (opinion in support of denying plaintiffs' relief) (Baer, J.); id. at 1151-52 (opinion in support of granting plaintiffs' relief) (Todd, J.); Stander, 250 A.2d at 480. In fact, if the Majority's interpretation is correct, the ballot question was an outright misstatement of the issue on which the electorate was voting.

Most relevant for our purposes, even employing the rules of statutory construction as the Majority does, common sense and case law illustrate that the language of Section 14 is anything but plain. Reasonable arguments can be made for two different interpretations of Section 14, and for that reason, the text is ambiguous. Warrantech Consumer Products Services, Inc. v. Reliance Ins. Co., 96 A.3d 346, 354 (Pa. 2014) ("A statute is ambiguous when there are at least two reasonable interpretations of the text under review."). This Court, the Secretary of the Commonwealth, and the Office of the Attorney General ("OAG") read the evidentiary requirement to apply to all three exceptions. The Majority, on the other hand, announces that it would interpret the evidentiary requirement to apply to the dangerousness exception only. A finding of ambiguity in this provision is unavoidable: the voters approved one interpretation in the ballot question, and the Majority reaches another.

Despite the existence of two reasonable interpretations, the Majority insists that the plain language interpretation requires only a straightforward application of "the ordinary rules of English grammar" to reach its conclusion that the second "'unless' clarifies that the evidentiary limitation at the end … only modifies the immediately preceding phrase." Majority Op. at 10.⁸ The Majority's reading is not natural. Its application of the rules of English grammar, explicated in a perplexing footnote detailing subordinating conjunctions and separate dependent clauses, id. at 10-11 n. 9, requires a proficiency of grammar that is simply not characteristic of the average voter. See Pa. Env't Def. Found., 161 A.3d at 929 (stating that text must be interpreted "in its popular sense, as understood by the people when they voted on its adoption"). Canons such as the "series-qualifier canon" may be "useful tools, but it is important to keep their limitations in mind." Facebook, Inc. v. Duguid, 592 U.S. 395, 410 (2021) (Alito, J., concurring). For instance, one could apply the "series-qualifier canon" or the "last antecedent rule," and depending on which rule is employed, reach opposite results. Id. at 412 (Alito, J., concurring) (surmising that if the series-qualifier canon were evaluated empirically, "we would find that the series qualifiers sometimes modify all the nouns or verbs in a list and sometimes modify just the last noun or verb").

8 The Commonwealth also urges that this interpretation is supported by "the rules of grammar," which, according to the Commonwealth, provide that the three uses of the disjunctive "or" in Section 14 create "three separate and distinct clauses." Commonwealth's Brief at 5. The Commonwealth cites the canon of construction "'that courts should generally apply qualifying words or phrases to the words immediately preceding them.'" Id. at 6 (citing Commonwealth v. Packer, 798 A.2d 192, 197-98 (Pa. 2002)).

Unphased by its use of dense grammatical principles to explain "plain language," the Majority suggests that if an alternative reading were intended, it would have been signaled either by omitting the second "unless" or by setting off the text with commas. Majority Op. at 11. In support, it cites to two cases in which federal courts have considered the series-qualifier rule, Facebook, Inc., 592 U.S. at 403-04 (applying series-qualifier rule), and United States v. Dai, 99 F. 4th 136, 139 (2d Cir. 2024) (distinguishing Facebook, Inc., and refusing to apply series-qualifier rule). In Dai, the Second Circuit read the phrase "a crime of violence, a violation of section 1591,⁹ or an offense listed in section 2332b(g)(5)(B) ¹⁰ for which a maximum term of imprisonment of [ten] years or more is prescribed[,]" and determined that the maximum-sentence limitation applied only to the last element of the list. Dai, 99 F.4th at 139 (citing 18 U.S.C. § 3142(f)(1)(A)). Focusing on one of the reasons given by the Second Circuit panel in Dai, the Majority emphasizes that the series-qualifier canon did not apply there because no comma separated the maximum-sentence phrase from the last item in the list. Majority Op. at 12 (citing Dai, 99 F. 4th at 139). Likewise, here, the Majority points out, no comma separates the qualifier from the last item in the list. The Majority thus maintains that Section 14 is plain.

9 18 U.S.C. § 1591.

10 18 U.S.C. § 2332b(g)(5)(B).

However, Dai supports my conclusion that Section 14 requires us to resort to the rules of constitutional construction which includes consideration of the history of the provision to ascertain the intention of the voters. The Second Circuit panel in fact gave three reasons why it read the qualifier in the list to modify only the final item in the list. First, it explained that applying the maximum-sentence limitation to Section 1591 (i.e., the second item in the list) would be surplusage given that a violation of Section 1591 is always punishable by imprisonment of ten years or more. Dai, 99 F.4th at 139. Second, it found that the government's reading made grammatical sense because "[n]o comma separates the phrase from the third category of offenses, which suggests that the two are directly connected." Id. Most relevantly, the Dai Court considered legislative history, which showed that the original statute included the first of its three categories (crime of violence) without the qualifier, then was amended to include additional categories with the qualifier. Id. at 140 (indicating that the "statutory history show[ed] that Congress added one category of offenses in 2004 and another in 2008, but did not on either occasion alter the scope of the original category of offenses-crimes of violence[]"). In other words, faced with a list including a qualifier at the end (that the Majority compared to the list in the present provision), the Dai court looked beyond the plain language of the statute and considered its history.

Facebook, Inc. also illustrates the ambiguity of Section 14. As identified by the United States Supreme Court in that case, the "series-qualifier canon" provides that "'[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series,' a modifier at the end of the list 'normally applies to the entire series.'" Facebook, Inc., 592 U.S. at 402-03 (citing A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012)). If this rule applied here, it could justify a plain reading of the statute. However, Section 14 is not a model of a straightforward list using parallel construction. The first two objective items are of a different type than the third subjective item, which makes a parallel construction all but impossible. The application of the series-qualifier canon thus immediately reveals ambiguity in the text.

Before today, there was no doubt that Article 1, Section 14, as amended by a majority vote of the electorate in 1998, established that bail will not be allowed when the proof is evident and the presumption great that an accused committed an offense for which the maximum penalty is life imprisonment. This Court said so (twice), as did the Secretary of State and the Attorney General. The Majority espouses a different interpretation today by resorting to rules of grammatical construction that are open to contrary application. If an ambiguity in the text is necessary to look beyond the language itself to interpret the amendment, we have it here in spades. But the stilted constitutional interpretation principles employed by the Majority allow it to ignore the elephant in the room-the intent of the voters who approved the amendment is crystal clear and contrary to its interpretation. This case may present an anomaly-the ballot question answered by the electorate set forth the exact question this Court is asked to answer in this appeal. I, for one, cannot explain or justify reaching a conclusion different from the answer given by the voters in 1998. The Majority disregards the clear expressed intent of the voters. The amendment, as interpreted by the Majority, is not the amendment ratified by the voters by their affirmative vote on the ballot question. Our democracy cannot tolerate this type of bait and switch.

I dissent.

Todd, Chief Justice joins this dissenting opinion.