June 2025 Docket Review
This month, the Court issued 3 precedential opinions and 6 grants of allocatur.
On the opinion side (kind of), I’m actually most interested in the Court’s decision (kind of) in Smith. In that case, two off-duty police officers engaged in what opposing sides might alternatively call overzealous off-duty law enforcement activity or a coordinated attack of a Philadelphia pedestrian. In a rare occurrence, Philadelphia District Attorney Larry Krasner prosecuted the off-duty officers for criminal conspiracy, assault, and recklessly endangering another person, but the Philadelphia Municipal Court and Philadelphia Court of Common Pleas dismissed the prosecution for an alleged lack of evidence of the off-duty officers’ mental state and purpose to cause bodily injury. A three judge panel of the Superior Court affirmed. The Court granted allocatur to consider whether the lower courts had applied too stringent a standard, but, ultimately was unable to come to a majority decision. Because of this, the Court issued a per curiam order indicating that the Court being evenly divided, the lower court’s opinion was affirmed by operation of law. But, strangely, there is no opinion in support of affirmance. Instead, there is simply a per curiam order implying that Justices Dougherty, Mundy, and Brobson would have affirmed. Meanwhile, Justice Wecht, joined by Chief Justice Todd and Justice Donohue, authored a concurring opinion painstakingly explaining how the lower courts strained to dismiss the case by crediting testimony and making inferences favorable to the defendants, which is verboten at the preliminary-hearing stage. And Justice Donohue, in her own concurrence, joined by Chief Justice Todd, puts a finer point on it, describing the panel opinion as a “perversion of our established standards for a preliminary hearing” that “should be viewed by the lower courts as an unfortunate anomaly.” One imagines it will.
There are a couple of lessons for appellate practitioners here. The first is simple: when a court is evenly split, the lower court decision is affirmed by operation of law, but the decision means very little beyond a final adjudication of the parties’ dispute. The second is a little more inside-baseball. Usually, when the Court is evenly divided, it issues at least one opinion in support of affirmance and one in support of reversal. Here, the Justices in support of affirmance didn’t write at all. In this regard, the Court’s order reads more like an order dismissing an appeal as improvidently granted, from which three of the six participating justices dissent. But it is not that. Why not? The answer may be that all three Justices in support of reversal felt so strongly about the legal principles at issue and the importance of identifying the lower courts’ errors that they would not agree to sweep the issue under the rug, and refused to dismis the appeal. The third lesson is practical, then philosophical: bad facts make bad law (or, in this case, no law). One would have to bury one’s head in the sand not to recognize that the particular defendants and/or the particular prosecutor in this case have qualities that tend to upend ordinary views of the machinery of the criminal legal system. When a police officer is a defendant or a victim, the timbre of the adjudicative system changes. Perhaps there are good reasons for that; perhaps there are bad ones. But so long as we do not acknowlege it and attempt to explain them, we cannot evaluate whether they are good or bad. The Court’s disposition of Smith in this regard is less about a legal standard and more about the importance of thoughtful deliberation.
On the allocatur side, I’m most interested in Krzan, which will address whether prearrest silence is admissible as impeachment evidence only where it impeaches a defendant’s testimony or, rather, whenever a defendant testifies at trial. Given that there are a number of the Court’s decisions discussing silence as “insolubly ambiguous” in the first place, and as extracting a burden on a defendant’s right to remain silent on the other hand, one imagines the Court might hew to a narrow conception of impeachment. Time will tell.
Precedential Opinions
Commonwealth v. Hunte, 16 MAP 2024 (Opinion by Wecht, J.) (holding Pennsylvania’s medical implied consent statute violates federal and state constitutional prohibitions on unreasonable searches and seizures)
See also Concurring and Dissenting Opinion by Mundy, J.
Commonwealth v. Hardy, 42 MAP 2024 (Opinion by Wecht, J.) (addressing several issues related to postconviction DNA testing)
Commonwealth v. Linton, 11 WAP 2024 (Opinion by Dougherty, J.) (holding cyclists’ “reasonable efforts” to avoid impeding traffic may in limited circumstance require them to pull off the road)
See also Dissenting Opinion by McCaffery, J.
Allocatur Grants
Kowall v. United States Steel Corp., 298 WAL 2024 (granting review to consider the availability of attorney fees as costs of response under Pennsylvania’s Hazardous Sites Cleanup Act)**
Commonwealth v. Krzan, 661 MAL 2024 (granting review to consider the appropriate use of prearrest silence as impeachment evidence)
PennEnergy Resources, LLC v. MDS Energy Development, LLC, 361 WAL 2024 (granting review to consider whether a party who rescinds its joinder of an agreement including an arbitration agreement can seek arbitration thereunder)
Commonwealth v. Worzel, 17 MEAL 2025 (granting review to consider whether the legislature mandated termination of alternative rehabilitated disposition for a violation of the terms thereof)
Commonwealth v. Bloomer, 4 MAL 2025 (granting review to consider the constitutionality and legality of certain aspects of the Superior Court’s “substantial question” doctrine regarding discretionary aspects of sentencing)
Coynyngham v. Pa. Pub. Util. Commn., 657 MAL 2024 (granting review to consider whether the Public Utilities Commission has jurisdiction over municipal authorities)
Other
Commonwealth v. Smith, 53 EAP 2024 (affirming per curiam as a result of an evenly divided court a lower court decision arguably applying too-stringent standards for a preliminary hearing)
Jackmian v. City of Phila., 266 EAL 2024 (denying allocatur on an issue of statutory interpretation involving the real property exception to sovereign immunity, but including a concurring statement from Justice Dougherty indicating interest in considering aspects of that exception in a proper case)
*This author was counsel for Mr. Linton.
*This author was counsel for an amicus curiae in support of the petition for allowance of appeal.
