J-S05022-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JAMES PAUL FINNECY :
:
Appellee : No. 998 WDA 2018
Appeal from the PCRA Order Entered June 19, 2018
in the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000498-2013
CP-61-CR-0000688-2009
BEFORE: PANELLA, P.J., NICHOLS, J. and STRASSBURGER, J.*
DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED: April 17, 2019
Because I believe the Majority errs in holding that Appellant has a
“history of present or past violent behavior,” 61 Pa.C.S. § 4503(1), based
upon a single conviction for a non-enumerated crime of violence, I respectfully
dissent.
The PCRA court held, and the Majority affirms, that Appellant is not
eligible for RRRI because he has a “history of present or past violent behavior”
based upon one prior conviction for resisting arrest. I acknowledge that on
Finnecy’s direct appeal, I agreed with the Majority that Appellant’s conviction
for resisting arrest rendered him ineligible for the RRRI program. See
Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016)
*Retired Senior Judge assigned to the Superior Court.
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(Strassburger, J., concurring). However, since then, our Supreme Court
decided Commonwealth v. Cullen-Doyle, 164 A.3d 1239, 1244 (Pa. 2017)
(holding that a “single, present conviction for a violent crime does not
constitute a history of violent behavior”).
I am not convinced that the holding on Finnercy’s direct appeal has the
same vitality after Cullen-Doyle. I still agree that resisting arrest is a crime
of violence within the meaning of the RRRI statute, and nothing in Cullen-
Doyle affects that analysis. See Finnercy, 135 A.3d at 1037 (holding, on
Finnecy’s direct appeal, that the crime of resisting arrest is a crime of
violence). But based upon Cullen-Doyle, I question whether one conviction
for resisting arrest constitutes a history of present or past violent behavior
within the meaning of the RRRI statute.
The specific holding of Cullen-Doyle - that a single present conviction
does not equate to a history of violent behavior - does not govern the outcome
in the instant case. Cullen-Doyle, 164 A.3d at 1244. Unlike Cullen-Doyle,
the crime of violence here is not the present crime for which Appellant is being
sentenced (or more accurately, re-sentenced). But I am persuaded by the
reasoning in Cullen-Doyle that the language of the RRRI statute is
ambiguous; that the word history refers to “an established record of or pattern
of past or present violent behavior;” that the “Legislature sought to offer
greater reform opportunities for first-time offenders than for repeat
offenders;” that construing the statute broadly would disqualify too many
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individuals based upon a mere “single instance of violence;” that all crimes of
violence should not be per se disqualifying; and that the rule of lenity means
the statute should be construed in favor of those seeking admission to the
program. Id. at 1241-44. Accordingly, I would hold that when a defendant
has a single prior conviction for a non-enumerated crime of violence, that
single prior conviction should not, by itself, disqualify the defendant from
participating in the RRRI program. Thus, in the instant case, I would hold that
Appellant’s sentence is illegal, and the PCRA court erred by determining that
Appellant did not qualify for RRRI.
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