[J-18-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 755 CAP
:
Appellee : Appeal from the Orders entered on
: January 29, 2003, March 25, 2003
: and August 26, 2011 in the Court of
v. : Common Pleas, Philadelphia County,
: Criminal Division at CP-51-CR-
: 1031752-1988, denying in part post
KEVIN PELZER, : conviction relief. (Nunc pro tunc
: appeal rights reinstated on June 1,
Appellant : 2017.)
:
: SUBMITTED: February 4, 2019
CONCURRING STATEMENT
JUSTICE WECHT FILED: November 26, 2019
Because Kevin Pelzer has not yet been sentenced, let alone sentenced to death,
this Court necessarily lacks subject matter jurisdiction to dispose of this appeal on the
merits. See 42 Pa.C.S. § 9546(d) (providing this Court with exclusive appellate
jurisdiction over “a final order” in a “case in which the death penalty has been imposed”).
Thus, I join today’s order dismissing the appeal and remanding the matter for sentencing.
As a matter of law, today’s order issues without prejudice to Pelzer’s right to pursue
relief on the merits of the procedural and substantive claims that he raises in this appeal
in the appropriate venue after he is sentenced. I do not share Justice Dougherty’s view
that, after Pelzer is sentenced, the trial court “must” limit Pelzer’s pursuit of relief. See
Conc. Statement (Dougherty, J.), at 1 (repeating rationale of Opinion in Support of
Affirmance in Commonwealth v. Taylor, ___ A.3d ___, 2019 WL 5782165 (Pa. filed Nov.
6, 2019)). With all due respect to my learned colleague, such an anticipatory restriction
on future claims is jurisprudentially incorrect and unsound.
In Taylor, the lower court’s order was affirmed by default solely because the votes
of the participating members of this Court ended in a 2-2 tie. There was no majority.
Such a tie requires this Court automatically to affirm the appealed order by default in a
per curiam order. Like any order, the order constitutes a binding, final order. However,
it is “indisputable” that the opinions offered by the deadlocked Justices in such cases
have “no precedential value.” Sprague v. Cortes, 150 A.3d 17, 22 (Pa. 2016) (Opinion in
Support of Affirmance) (quoting Commonwealth v. Bomar, 826 A.2d 831, 843 n.13 (Pa.
2003) (“While the ultimate order of a plurality opinion, i.e. an affirmance or reversal, is
binding on the parties in that particular case, legal conclusions and/or reasoning
employed by a plurality certainly do not constitute binding authority.”)). Thus, neither
Justice Dougherty’s opinion in support of affirmance (2019 WL 5783911)—even though
it corresponds with the ultimate default result—nor my opinion offered in support of the
contrary result (2019 WL 5782165) bind the trial court in the case sub judice in any way.
For these reasons, the procedural issue that deadlocked Taylor—whether a lower
court can compel a new appellate proceeding before this Court—remains an open
question. The trial court here should approach the question as such, and must indeed
address it anew. That court is not bound by either of the non-precedential opinions
offered in Taylor.
Justice Donohue joins this concurring statement.
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