This month, the Court issued 2 precedential opinions and 7 grants of allocatur.  On the opinion side, the Court issued only two precedential opinions, both in capital cases, and both quietly reaffirming or expanding constitutional protections for criminal defendants.  In Parrish, the court held that a post-conviction petitioner was entitled to a remand to the lower court to pursue a claim that prior post-conviction counsel was ineffective in failing to assert a claim that trial counsel was ineffective in failing to consult with him about filing an appeal.  The court's opinion underlined its commitment not only to its recent decision in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), which allowed petitioners who obtain new counsel on appeal to challenge prior post-conviction counsel's ineffectiveness at the earliest available opportunity, and to a long line of decisions culminating in Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018), which hold that any attorney errors or omissions that forfeit appellate or post-conviction review constitute ineffectiveness per se and require reinstatement of the defendant's appellate or post-conviction rights.  Similarly, in Holt, Justice Donohue, writing for a plurality, and receiving no contrary expressions on the point, evaluated the question of whether the defendant's conviction was supported by constitutionally sufficient evidence pursuant to a standard previously challenged but preserved by the Court in Commonwealth v. Brown, 52 A.3d 1139 (Pa. 2012), that requires a qualitative, holistic assessment of the evidence of record as a whole.  The court's reaffirmance of these doctrines, all of which lead to additional litigation and/or more expansive appellate review, may be something of a missive to the Superior Court, which, in general, given its overloaded docket, is sometimes regarded as too-narrowly interpreting the governing law in this area.

Also, it's worth noting a non-precedential opinion issued this month, which may be a shape of things to come.  In Commonwealth v. Edwards, J-53-2021, the Court attempted to answer the question of whether or under what circumstances a prosecutor's racially discriminatory use of peremptory juror strikes constitutes misconduct sufficient to bar the defendant's retrial pursuant to constitutional protections against double jeopardy.  Unfortunately, the court was unable to reach a majority expression.  Chief Justice Baer, joined by Justice Todd, advocated against adopting a per se rule and for a totality-of-the-circumstances test bearing in mind the countervailing interest in prosecuting crime, and that the prosecutor's conduct therein, a single racially discriminatory strike, did not amount to overreaching warranting dismissal.  Justice Mundy, joined by Justice Dougherty, argued that such a use of juror strikes, in view of the fact that jury selection occurs before double jeopardy attaches at trial, never warrants dismissal.  Justice Donohue, joined by Justice Wecht, advocated that racial discrimination by prosecutors is always overreaching warranting dismissal. Chief Justice Emeritus Saylor, who retired prior to the opinion's issuance, and Justice Brobson, who joined the court after it was submitted, did not participate in the decision.

But what is the rule here?  On one hand, it's clear that a majority of the Justices held that, at least under certain circumstances, dismissal is the appropriate remedy.  On the other hand, adopting that rule was not necessary to the decision.  Doctrinally, splintered decisions are typically interpreted as standing for their "narrowest ground," but here, the narrowest ground seems to be nothing more than the defendant not being entitled to dismissal.  Predictively, by the time Edwards is reinterpreted or revisited, it is likely that Chief Justice Baer will have retired, and that Justice Brobson, as well as a Justice-to-be-elected in late 2023 will be added to the mix.  Presuming that Justices Todd, Donohue, Wecht, Mundy, and Dougherty remain committed to their positions, and Justice Brobson is persuaded that retrial is never warranted, it will be up to the newly elected Justice to break the tie.  All of which is to say that although the Court is often regarded as brazenly and uniformly liberal, and that the Justices elected as Democrats, and particularly those elected as Democrats in 2015 are the engine of that liberalism, the next few years will show a lot of nuance in that regard.  

On the allocatur side, I'm interested in Shaffer, which addresses whether a post-conviction petitioner raising a claim of ineffectiveness in connection with the trial judge's recusal must prove actual prejudice, and which thereby seems poised to give the Court an opportunity to expand on its nascent jurisprudence of structural error affecting the machinery of deliberation itself.  Additionally, at the risk of seeming self-indulgent, the grant of this author's appeal in McGee, which considers whether a trial court retains its inherent authority to correct mistakes in its orders survives the time-bar provisions of the PCRA, may give the Court the opportunity to limit, or perhaps even reconsider, what many have argued are too-strict interpretations of the time-bar.

Precedential Opinions

Commonwealth v. Parrish, 791 CAP (Opinion by Donohue, J.) (remanding for proceedings on a capital post-conviction petitioner's claim that post-conviction counsel was ineffective in failing to raise a claim that trial counsel was ineffective in failing to consult with him regarding his right to file an appeal)

• See also Dissenting Opinion by Dougherty, J.

Commonwealth v. Holt, 789 CAP (Opinion by Donohue, J.) (adjudicating numerous claims in a capital direct appeal)

• See also Concurring Opinion by Dougherty, J.

Allocatur Grants

Commonwealth v. Koger, 270 WAL 2021 (granting review to consider whether the Superior Court improperly expanded precedent requiring that non-criminal probation violations implicate a specific condition of probation to the context of parole)

Commonwealth v. Green, 360 WAL 2021 (granting review to consider whether juvenile transfer orders are subject to a strict twenty-day limitation or subject to equitable exceptions like other procedural requirements)

In re: Chester Water Authority Trust, et al., 519 MAL 2021, et al. (granting review to consider several issues in connection with the governance of the Chester Water Authority)

Commonwealth v. Shaffer, 593 MAL 2021 (granting review to consider whether a post-conviction petitioner asserting a claim that trial counsel was ineffective in failing to request the trial judge's recusal on the basis of an appearance of impropriety must prove prejudice)

Commonwealth v. McGee, 297 WAL 2021* (granting review to consider whether a trial court's inherent authority to correct patent and obvious mistakes persists notwithstanding the time-bar provisions of the PCRA)

Mimi Investors, LLC v. Tufano, 641 MAL 2021 (granting review to consider whether a plaintiff in an action for securities fraud must plead and prove scienter by clear and convincing evidence)

Note: This author is Petitioner's counsel in McGee.