[J-114-2020] [MO: Mundy, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 2 WAP 2020
:
Appellee : Appeal from the Order of the
: Superior Court entered April 17,
: 2019 at No. 998 WDA 2018,
v. : affirming the Order of the Court of
: Common Pleas of Venango County
: entered June 19, 2018 at Nos. CP-
JAMES PAUL FINNECY, : 61-CR-0000498-2013 and CP-61-
: CR-0000688-2009.
Appellant :
: SUBMITTED: November 17, 2020
DISSENTING OPINION
JUSTICE WECHT DECIDED: APRIL 29, 2021
The issue presently before the Court is whether a single conviction for a past non-
enumerated violent crime demonstrates a “history of present or past violent behavior,”
rendering a defendant ineligible for a reduced sentence under the Recidivism Risk
Reduction Incentive Act (“Act”).1 See 61 Pa.C.S. § 4503(1) (defining “eligible person” as
one who “[d]oes not demonstrate a history of present or past violent behavior”). The
Court recently examined this statutory language in Commonwealth v. Cullen-Doyle, 164
A.3d 1239 (Pa. 2017), and concluded that a single conviction for a present non-
enumerated violent crime did not demonstrate a “history of present or past violent
behavior.” While today’s learned Majority acknowledges that “the present circumstances
are slightly different than those in Cullen-Doyle,” it still finds Cullen-Doyle’s reasoning
“determinative.” Maj. Op. at 16. Thus, the Majority holds that Finnecy’s criminal history,
1 61 Pa.C.S. §§ 4501-12.
“which reflects several previous convictions, only one of which demonstrates violent
behavior, does not render him ineligible for a sentence” under the Act. Id. at 16-17.
Because I believe that Cullen-Doyle was wrongly decided, and because today’s decision
exacerbates that error, I respectfully dissent.
In Cullen-Doyle, after pleading guilty to several counts of conspiracy and one count
of burglary, the defendant requested that the trial court sentence him under the Act.
Because burglary is a violent crime, and because he had just pleaded guilty to that
offense, the trial court determined that the defendant was ineligible for a reduced
sentenced pursuant to Section 4503(1) of the Act. On appeal to this Court, we considered
whether the defendant’s single burglary conviction demonstrated a “history of present or
past violent behavior” under Section 4503(1). Cullen-Doyle, 164 A.3d at 1240. The Court
found that the phrase “history of present or past violent behavior” was ambiguous
because “history” often involves past, rather than present, events and frequently
contemplates a “pattern of behavior,” not a single instance. Id. at 1242; see also id. n.2
(“[T]o be specific, the statute could be read . . . to allow for the word history to encompass
a single, present offense. Alternatively, it could be read to expressly authorize the
inclusion of the present offense in consideration of whether there is an overall history,
comprised of more than one offense.”). To resolve this purported ambiguity, the Court
examined the Act’s underlying rationale. The Court explained that the purpose of the Act
is to reduce recidivism, especially among first-time offenders who generally are “more
amenable to reform” than repeat offenders. Id. at 1242; see also id. at 1243 (“[I]t can be
fairly inferred that, in aiming to reduce recidivism, the Legislature sought to offer greater
reform opportunities for first-time offenders than for repeat offenders.”).
With this rationale in mind, the Court concluded that the phrase “history of present
or past violent behavior” demonstrated “an intent to render ineligible individuals with ‘an
[J-114-2020] [MO: Mundy, J.] - 2
established record or pattern’ of violent behavior.” Id. at 1243 (quoting W EBSTER’S NEW
COLLEGE DICTIONARY 537 (3d ed. 2008)). The Court found that this definition
“engender[ed] the most cogent and natural interpretation of the statute, since it permits a
sentencing court to assess whether an offender has an established record or pattern of
past or present violent behavior” consistent with the Act’s goals. Id. Therefore, the
defendant’s single present conviction for a non-enumerated violent crime did not
disqualify him from eligibility under the Act.
Justice Todd authored a dissent, which Justice Dougherty and I joined. The
dissent asserted that the phrase “history of present or past violent behavior” was
unambiguous. The dissent conceded that the juxtaposition of “history” and “present” was
“certainly awkward verbiage,” but it nevertheless found “this wording capable of an
interpretation which gives effect to the whole phrase” consistent with the principles of
statutory construction. Id. at 1245 (Todd, J., dissenting). Rather than focus on the
dictionary definition of the word “history,” the dissent emphasized the application of the
word within the context of the statute. In doing so, the dissent construed the word “history”
to mean an “established record,” and this record “may have been created by virtue of a
past conviction of a violent act for which the defendant was already sentenced . . . or by
a violent act for which the defendant was convicted and is presently being sentenced.”
Id. In either case, the phrase “history of present or past violent behavior” barred all violent
offenders––both first-time and repeat offenders––from receiving reduced sentences
under the Act. Id.
I maintain that Cullen-Doyle was wrongly decided for the compelling reasons
outlined by Justice Todd in her dissent in that case. In my view, the phrase “history of
present or past violent behavior” is unambiguous and, construed according to its plain
meaning, refers to an “established record” of violent behavior. This reading logically
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encompasses all instances of violent behavior,2 including a single present conviction for
a non-enumerated violent crime, which should suffice to disqualify a defendant under the
Act. Consequently, I disagree with today’s Majority decision, which goes a significant
step beyond the holding in Cullen-Doyle, extending that rationale from a single present
conviction to a single past conviction for a violent crime. See Maj. Op. at 16-17. This
decision compounds the errors in Cullen-Doyle and goes even further in contravening the
plain language of the Act in pursuit of its alleged spirit. Contra 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.”). Therefore, I respectfully dissent.3
Justices Todd and Dougherty join this dissenting opinion.
2 Notably, the General Assembly chose to use the term “behavior,” rather than
“conviction,” implying that a defendant does not actually need to be convicted of anything
in order to be disqualified under Section 4503(1) of the Act. This broad, catch-all provision
permits sentencing courts to consider an array of present or past violent behavior when
making an eligibility determination. Accord Commonwealth v. Chester, 101 A.3d 56, 63
(Pa. 2014) (“We find that Section 4503’s structure—namely, including specific classes of
offenses in Section 4503(2)-(6) while also including general language in Section 4503(1)
concerning behavior—reflects an express choice by the legislature not to write an
exclusive list of disqualifying offenses, but, instead, to include Section 4503(1) as a broad,
‘catchall’ provision designed to encompass an array of behavior not explicitly provided for
in Section 4503’s other provisions.”).
3 In a footnote, the Majority comments on the fact that Finnecy’s brief repeatedly
cites unpublished, non-precedential memorandum decisions of the Superior Court. Maj.
Op. at 8 n.9. The Majority asserts that because each of the decisions cited by Finnecy
was filed before May 1, 2019, “none of them may be cited for their persuasive value.” Id.
(citing Pa.R.A.P. 126(b)). While both the Superior Court and the Commonwealth Court
have, in accordance with Rule 126, implemented internal operating procedures that
generally prohibit citation of and reliance upon unreported opinions before a certain date,
see 210 PA. CODE § 65.37(B) (“An unpublished memorandum decision filed prior to May
2, 2019, shall not be relied upon or cited by [the Superior] Court or a party in any other
action or proceeding . . . .”); id. § 69.414(a) (“Parties may [] cite an unreported panel
decision of [the Commonwealth] Court issued after January 15, 2008, for its persuasive
value . . . .”), this Court is not in any way affected, much less bound, by those lower court
rules. Quite to the contrary, this Court may be persuaded by anything that serves to
persuade, including unpublished, non-precedential memorandum decisions of either
lower court regardless of the date such decisions were filed.
[J-114-2020] [MO: Mundy, J.] - 4