This month, the Court issued 4 precedential opinions and 5 grants of allocatur.
On the opinion side, the far-and-away headline-grabbing case is Cosby, in which the Court held that convicted sexual offender Bill Cosby was entitled to enforcement of former Montgomery County District Attorney Bruce Castor's assurance that he would not prosecute Cosby criminally, which Cosby relied on in giving testimony in a related civil action, only to have DA Castor's successors change their minds, prosecuting him and using his testimony in that civil action in the process. (Particularly informed citizens may recall former DA Castor from his less than cogent presentation in last year's second set of Presidential impeachment proceedings.)
A couple of takeaways. First, although the Court was divided, it was certainly not divided on political lines. The majority opinion was authored by Justice Wecht, and joined by Justice Donohue (they, the two most reliably liberal Justices), Justice Todd (perhaps the "middle Justice" in criminal cases at the moment), and Justice Mundy (certainly the most conservative in criminal cases).
Second, Cosby rests on a long line of decisions holding that defendants are entitled to the benefits of their plea bargains, but seems to increase the scope of those decisions from those narrow circumstances to impose a more general contract overlay to defendants' waivers of rights. Depending on just how general, Cosby could create some amount of uncertainty in the criminal process. Prosecutors in Pennsylvania routinely make assurances and indications as to their conduct going forward to induce defendants to take some action or another. Suppose a prosecutor tells defense counsel that if his client waives his preliminary hearing, he'll attempt to obtain his admission into treatment court, but the prosecutor later gives less than his full effort to do so. Is the defendant now entitled to litigate whether the prosecutor has acted in good faith and fair dealing? Suppose a prosecutor indicates he will leave a plea on the proverbial table for 30 days, but later learns information that would suggest it is no longer appropriate. Is he bound? Suppose a prosecutor orally agrees to "consolidate" a defendant's plea? Is the defendant now entitled to formal consolidation of all of his cases or concurrent sentences because he has reasonably interpreted that ambiguous term to have that meaning?
As always, in a perfect world the best practice for conscientious practitioners would be to reduce any agreement formally to include their negotiated terms and exclude any others. But given the heft of criminal dockets and the practicalities of criminal practice, such written, negotiated agreements are extremely rare. There is little time for dickering and contractual revision in a proceeding among 50 others at a magisterial district court. Going forward, expect a fair amount of litigation as we determine just how much criminal law is now contract law.
On the allocatur side, one item of note is the frequency with which the Court is now considering whether the intermediate appellate courts "violate the applicable standard of review" by misapplying it. Indeed, 2 (possibly 3) of the 5 grants of allocatur this month fit this mold. Such an issue used to be regarded as error review, which is anathema to the Court, but is now routinely the basis for appeal. Is that change wise? Granting review to reiterate and apply the applicable standard of review and do justice in individual cases has some facial appeal, but it necessarily takes attention and resources from the Court's other cases addressing complex issues of law and policy. And, at least in this author's opinion, the Court's new practice appears to transgress to some degree into the intermediate courts' institutional bailiwick. Nevertheless, appellate practitioners who think the Court may have a difference of opinion on the facts would do well to frame their claims in this manner.
Commonwealth v. Cosby, 39 MAP 2020 (Opinion by Wecht, J.) (enforcing district attorney's indication he would not prosecute relied upon by defendant in testifying in a collateral civil matter)
- See also Concurring and Dissenting Opinion by Dougherty, J.
- See also Dissenting Opinion by Saylor, J.
DeGliomini v. ESM Productions, Inc., 5 EAP 2020 (Opinion by Dougherty, J.) (holding a bike-race participant's waiver of liability arising from the City of Philadelphia's failure to maintain and repair its streets violates public policy)
- See also Dissenting Opinion by Baer, J.
Domus, Inc. v. Signature Bldg. Sys. of Pa., 54 MAP 2020 (Opinion by Dougherty, J.) (holding a party's failure to authenticate a foreign judgment under the Uniform Enforcement of Foreign Judgments Act does not deprive the Court of Common Pleas of subject matter jurisdiction)
Commonwealth v. Harth, 13 EAP 2020 (Opinion by Todd, J.) (holding that judicial delay is only excludable for purposes of criminal-procedural speedy-trial rights where the Commonwealth has simultaneously exercised due diligence)
- See also Dissenting Opinion by Dougherty, J.
In re: Adoption of L.A.K., 132-33 WAL 2021 (granting review to consider whether the Superior Court violated the applicable standard of review and erred in determining that a parent's entrance into alcohol recovery cannot be viewed as overcoming a barrier to reunification)
Kneebone v. Zoning Hearing Bd. (Twp. of Plainfield), 498 MAL 2020 (granting review to consider whether the Commonwealth Court violated the applicable standard of review in reversing a granted dimensional zoning variance)
Naginey v. PennDOT, 72 MAL 2019 (granting review to consider whether a prior decision foreclosing driver's license suspensions concerning which the Commonwealth unduly delayed notification applies in the context of foreign-state-caused undue delays)
Hughes v. UGI Storage Co., 686 MAL 2020 (granting review to consider whether the Commonwealth Court erred in determining that the elements of a de facto taking include elements of a de jure itaking)
In re: Estate of Jabbour, 24 WAL 2011 (granting review to consider the validity of a revocation of a long-ago spousal-share election)