This month the Court issued 9 precedential opinions and 2 grants of allocatur.

On the opinion side, two cases this month, Reid and Flor, demonstrate an important feature/bug of the Court's jurisprudence.  In Pennsylvania, appeals in criminal cases generally are taken first to the Superior Court, then, if necessary, taken by the Supreme Court in its discretion.  If advocacy is particularly poor, or if the courts cannot resolve the issues in a clear and cogent way, this process provides several mechanisms to avoid these problems from spilling over into other cases.  At the Superior Court, judges faced with poor advocacy frequently issue non-precedential "memorandum" opinions.  At the Supreme Court, the court can simply decide that the advocacy below or in the petition for allowance of appeal is simply too poor to allow the appeal, or that the briefing is too poor or the issue too splintered to issue an opinion, and dismiss the appeal as improvidently granted.

In capital cases, however, appeal is taken directly to the Supreme Court, depriving it of the ability to use its discretion to protect the law going forward: the Court must take the case and must issue a decision which, if garnering the votes of a majority, is binding on future cases.  Making matters worse, capital criminal defense was once plagued by obvious incompetence (as Justice Saylor's Reid concurrence/dissent alludes to), and, although the Court has since required additional training, it is far from clear that the requirement has been effective in remedying the situation.  And where advocacy is better, because the stakes are so high, capital cases typically involve decades of litigation and serial petitions for collateral relief, and it often the case that advocates in capital cases take the unwise (if understandable) approach of raising a litany of arguably frivolous claims in the hope that one or the other of them will succeed.  This leads to increased complexity, confusion, and bulk before the lower courts, which compounds on appeal, which compounds on collateral attack, and so on, ad infinitum. Moreover, while the Superior Court is generally in the business of applying established law to the facts of particular cases in something of an assembly-line fashion, the Supreme Court is generally in the business of providing exegesis of a few discrete legal issues, so institutional core competencies are at play as well.  All of which is to say that capital appeals and capital PCRA appeals often lead to confusing, or just outright bad, law.  Indeed, an attorney attempting to figure out Flor will need some time to piece together the patchwork of opinions, could certainly be forgiven for coming to the conclusion that it doesn't say much, and would likely agree with several of the Justices that the case was not an adequate vehicle for the announcement of the new rules it provides.

Ostensibly, this special mechanism owes to the fact that capital cases have high stakes, and so warrant certain consideration of the Commonwealth's highest court.  Yet, one could reasonably argue that review by the Superior Court in the first instance and by the Supreme Court at the allocatur stage is more rigorous.  A more cynical view would be that the mechanism is a shortcut designed to speed up capital cases and reach finality.  Yet, it rarely does: indeed, the Court's consideration of capital cases may well take longer than the Superior Court's would, in part due to the fact that the Court must think ahead in terms of precedent.  And in any event, most capital cases, particularly in Pennsylvania, do not reach finality before the defendant dies in prison.

For my part, failing the legislature's decision to dispense with this mechanism entirely, I think the Court would be well-advised to adopt a formal rule or otherwise hold that capital cases are less precedentially valuable than those subject to the Court's other criminal cases.  Such a rule would ensure thorough consideration by the Court, but would allow it to avoid the shortcomings that consideration leads to in future cases.  In the meantime, we beat on, boats against the current, borne back ceaselessly into the past.

On the allocatur side, I'm most interested in Brown.  Several years ago, in Commonwealth v. Walker, 92 A.3d 753 (Pa. 2014), the Court decided a similar issue, holding expert testimony about certain psychological effects on eyewitness perception and memory was generally admissible.  Since then, prosecutors in some areas have attempted to introduce their own expert testimony about certain alcohol and drug-related effects on eyewitness perception and memory, which the Court will address in Brown.  Although the comparison seems 1 to 1 at a superficial level, there are certainly grounds to distinguish them.  In Walker, for example, psychologists testified to the fact that cross-racial identifications are inherently weaker, which is certainly counterintuitive and not within common knowledge.  Here, on the other hand, the experts would ostensibly be testifying that intoxicated people are less reliable in their perception or memory, which is not exactly a groundbreaking scientific discovery and could likely be attested to by anyone who has ever attended a raucous enough party. Additionally, Walker was decided alongside Commonwealth v. Alicia, 92 A.3d 753 (Pa. 2014), which involved expert testimony about psychological effects on confessions, which the Court paradoxically held was generally inadmissible.  In my humble opinion, the cases were intractably irreconcilable from the start, and Brown may provide the Court an opportunity to provide some guidance as to which of the two should prevail.

Precedential Opinions

Commonwealth v. Reid, 784 CAP (Opinion by Baer, C.J.) (rejecting numerous factual claims in a capital PCRA case but remanding for a supplemental opinion as to one such claim)

• See also Concurring and Dissenting Opinion by Saylor, J.

United Blower, Inc. v. Lycoming Cnty. Water and Sewer Auth., 3 MAP 2021 (Opinion by Wecht, J.) (clarifying the appropriate calculation of costs under the Steel Act's provisions regarding use of American-manufactured steel)

• See also Concurring and Dissenting Opinion by Baer, J.
• See also Concurring and Dissenting Opinion by Dougherty, J.

Mohn v. Bucks Cnty. Republican Cmte., 74 MAP 2020 (Opinion by Saylor, J.) (holding that litigants must demonstrate discrete state action to vest trial courts with jurisdiction over intra-political-party disputes and suggesting even that may not be enough)

• See also Concurring Opinion by Wecht, J.Concurring Opinion by Wecht, J.

Commonwealth v. Purnell, 71 MAP 2020 (Opinion by Baer, C.J.) (holding that the provision of a "comfort dog" to a witness is permissible if the degree to which it aids the witness in testifying is greater than the likelihood of prejudice to the defendant's right to a fair trial)

• See also Concurring Opinion by Donohue, J.

Brooks v. Ewing Cole, Inc., 4 EAP 2021 (Opinion by Mundy, J.) (holding that a trial court's order denying summary judgment on the basis of sovereign immunity is a collateral order appealable as of right pursuant to Pa.R.A.P. 313)

Commonwealth v. Flor, 771 CAP (affirming denial of relief in a capital PCRA case)

• See Opinion of Mundy, J.Opinion of Mundy, J. (holding insofar as it is precedential that the petitioner's claims of intellectual disability, being subject to an unconstitutional aggravating sentencing factor, and jury taint lacked merit)
• See Opinion of Wecht, J. (holding that a claim of intellectual disability is a claim sounding in the legality of sentencing and thus nonwaivable, that it is cognizable pursuant to the PCRA, and holding that petitioner's claimed prosecutorial misconduct was cured by the trial court's instructions on the law)
• See also Opinion of Saylor, J. (indicating a preference to remand for an adequate opinion, but concurring in the above-detailed parts of the other opinions and concurring in the result)
• See also Opinion of Dougherty, J. (indicating a preference not to answer whether a claim of intellectual disability sounds in the legality of sentence and/or is cognizable under the PCRA in the absence of better advocacy)\

K.N.B. v. M.D., 20 WAP 2020 (Opinion by Wecht, J.) (holding that a petition for a protective order under the Protection of Victims of Sexual Violence or Intimidation Act is subject to the catchall six-year statute of limitations)

• See also Concurring Opinion by Saylor, J.
• See also Concurring and Dissenting Opinion by Mundy, J.

Pascal v. City of Pgh. Zoning Bd. of Adjustment, 22 WAP 2020 (Opinion by Dougherty, J.) (holding that zoning-board decision was timely filed by virtue of the parties' agreements to keep the record open for an extended period of time, but vacating decision and remanding for a new hearing due to a board member's conflict of interest)

• See also Concurring and Dissenting Opinion by Wecht, J.

Commonwealth v. Raboin, 9 WAP 2020 (Opinion by Mundy, J.) (holding the introduction of nearly all of a child witness's recorded interview pursuant to the rule of completeness was improper and remanding for a determination of whether it was admissible as a prior, consistent statement)

• See also Concurring and Dissenting Opinion by Donohue, J.
• See also Concurring and Dissenting Opinion by Wecht, J.

Allocatur Grants

Goodwin v. Goodwin, 130 MAL 2021 (granting review to consider whether the payment of life-insurance and individual-retirement-account proceeds to a beneficiary is a "gift" and therefore not marital property subject to equitable distribution)

Commonwealth v. Brown, 183 EAL 2021 (granting review to consider whether an expert witness may opine as to blood alcohol content's effect upon memory and perception despite the jury's role as the sole arbiter of credibility)