J-S82027-18

                                2019 PA Super 188

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 KENNETH MILLER                            :
                                           :
                    Appellant              :   No. 338 EDA 2017

                Appeal from the PCRA Order January 12, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0902382-1998


BEFORE:    LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

DISSENTING OPINION BY OLSON, J.:                        FILED JUNE 11, 2019

      In this case, Appellant, Kenneth Miller, appeals from the January 12,

2017 order granting in part and denying in part his first petition filed pursuant

to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.          I

believe that a timely appeal taken from a PCRA order granting penalty phase

relief in a capital case, but denying guilt phase relief, constitutes an appeal

from “a final order under [the PCRA] in a case in which the death penalty has

been imposed” for purposes of 42 Pa.C.S.A. § 9546(d). Hence, in my view,

such an appeal falls within the exclusive appellate jurisdiction of the Supreme

Court of Pennsylvania. See 42 Pa.C.S.A. § 722(4). Because this Court lacks

jurisdiction in such cases, I believe that we may not consider the merits of the

appeal and, instead, must transfer this appeal to our Supreme Court.

Accordingly, I respectfully dissent.




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        As noted by the learned Majority, in September 1999, Appellant was

convicted of two counts of first-degree murder,1 robbery,2 and criminal

conspiracy.3 The trial court sentenced Appellant to death after the jury found

the existence of two aggravating circumstances and found that those

aggravating circumstances outweighed the lone mitigating circumstance. Our

Supreme Court affirmed.          Commonwealth v. Miller, 819 A.2d 504 (Pa.

2002), cert. denied sub nom., Miller v. Pennsylvania, 540 U.S. 827 (2003).

        On January 21, 2004, Appellant filed a timely PCRA petition raising both

penalty phase and guilt phase claims.            On October 24, 2008, Appellant

amended his petition. On May 13, 2014, the PCRA court granted Appellant

penalty phase relief by vacating his death sentence and imposing a sentence

of life imprisonment without the possibility of parole. 4    That same day, an

extensive evidentiary hearing began on a portion of Appellant’s guilt phase

claims.5 On January 12, 2017, the PCRA court denied relief on Appellant’s

remaining guilt phase claims. Appellant filed a notice of appeal to this Court.




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1   18 Pa.C.S.A. § 2502(a).

2   18 Pa.C.S.A. § 3701.

3   18 Pa.C.S.A. § 903(a).

4   The Commonwealth consented to this grant of relief.

5The PCRA court dismissed Appellant’s remaining guilt phase claims without
an evidentiary hearing.

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      I agree with my learned colleagues that we must sua sponte address

whether this Court or our Supreme Court has jurisdiction over this appeal

dealing with the denial of Appellant’s guilt phase claims.       See Barak v.

Karolizki, 196 A.3d 208, 215 (Pa. Super. 2018) (citations omitted).         This

Court has “exclusive appellate jurisdiction of all appeals from final orders of

the courts of common pleas . . . except such classes of appeals as are by any

provision of this chapter within the exclusive jurisdiction of the Supreme Court

or the Commonwealth Court.” 42 Pa.C.S.A. § 742. Our “Supreme Court shall

have exclusive jurisdiction of appeals from final orders of the courts of

common pleas . . . as provided by 42 Pa.C.S.[A.] §§ 9546(d) (relating to relief

and order) and 9711(h) (relating to review of death sentence).” 42 Pa.C.S.A.

§ 722(4). Section 9546(d) provides that “A final court order under [the PCRA]

in a case in which the death penalty has been imposed shall be directly

appealable only to the Supreme Court pursuant to its rules.” 42 Pa.C.S.A.

§ 9546(d).

      My jurisdictional analysis in this matter turns on whether a PCRA order

granting penalty phase relief in a capital case, but denying guilt phase relief,

qualifies as a final order in a PCRA case in which the death penalty has been

imposed for purposes of section 9546(d). If such an order falls within the

scope of section 9546(d), it must be appealed directly to our Supreme Court.

See id.; see also 42 Pa.C.S.A. § 722(4). If it falls outside the scope of section

9546(d), it must be appealed to this Court.


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       I begin with an analysis of section 9546(d), the relevant jurisdictional

provision.    When interpreting a statute, we are guided by the Statutory

Construction Act, 1 Pa.C.S.A. § 1501 et seq. See Rancosky v. Washington

Nat'l Ins. Co., 170 A.3d 364, 371 (Pa. 2017). “[O]ur paramount

interpretative task is to give effect to the intent of our General Assembly in

enacting” section 9546(d). Commonwealth v. Grove, 170 A.3d 1127, 1141

(Pa. Super. 2017), appeal denied, 185 A.3d 967 (Pa. 2018) (citation omitted).

“Generally, a statute’s plain language provides the best indication of legislative

intent. Therefore, when ascertaining the meaning of a statute, if the language

is   clear,   we   give   the   words   their   plain   and   ordinary   meaning.”

Commonwealth v. Wise, 171 A.3d 784, 788 (Pa. Super. 2017), appeal

denied, 186 A.3d 939 (Pa. 2018) (cleaned up). “In reading the plain language,

words and phrases shall be construed according to rules of grammar and

according to their common and approved usage[.]”                 Gross v. Nova

Chemicals Servs., Inc., 161 A.3d 257, 264 (Pa. Super. 2017) (cleaned up).

       The plain language of section 9546(d) provides that a “final court order”

that was issued “in a case in which the death penalty has been imposed” falls

within our Supreme Court’s exclusive jurisdiction. 42 Pa.C.S.A. § 9546(d).

Thus, two inquiries emerge. First, we must consider whether the PCRA court

issued a final order. Second, if a final order were issued, we must decide if

this is a case in which the death penalty “has been imposed,” as contemplated

by section 9546(d).


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      “An order granting, denying, dismissing, or otherwise finally disposing

of a petition for post-conviction collateral relief shall constitute a final order

for purposes of appeal.” Pa.R.Crim.P. 910; see also Pa.R.A.P. 341(b)(1). In

this case, the May 13, 2014 order granted relief on Appellant’s penalty phase

claims (vacating his death sentence and imposing life imprisonment without

the possibility of parole). A prior order dismissed certain guilt phase claims

and scheduled a hearing on Appellant’s remaining guilt phase claims. As the

May 13, 2014 order did not finally dispose of all claims in Appellant’s petition,

the order was interlocutory. The January 12, 2017 order, however, resolved

Appellant’s remaining guilt phase claims.     Hence, the order of January 12,

2017 from which this appeal was taken is a final order for purposes of section

9546(d).

      Whether this is a case in which the death penalty “has been imposed” is

a more challenging inquiry.        To recount, Appellant was convicted of

first-degree murder and sentenced to death.         Thereafter, the PCRA court

granted relief   on Appellant’s penalty phase claims and denied relief on his

guilt phase claims. As such, while a death sentence was originally imposed in

this case, a subsequent PCRA order (now the subject of this timely appeal)

vacated the death sentence. Accordingly, we must decide whether section

9546(d) mandates an exclusive appeal to our Supreme Court only in cases

where a death sentence currently remains in place.




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      The plain language of section 9546(d) indicates that a current death

sentence need not be in place for our Supreme Court to possess exclusive

jurisdiction over an appeal from a PCRA order. Section 9546(d) is phrased in

the past tense requiring that a death sentence “has been imposed.” It pairs

the requirement of a final, appealable PCRA order with the requirement that

a death sentence has been imposed. By its plain language, and contrary to

the Majority’s unsupported assertions, section 9546(d) does not require that

the death sentence currently be in place for our Supreme Court to possess

exclusive jurisdiction over an appeal from a PCRA order.      Hence, section

9546(d) requires only a final PCRA order resolving challenges to a conviction

where a death sentence has been imposed. Our Supreme Court has confirmed

this is the correct interpretation of the statute. Commonwealth v. Bryant,

780 A.2d 646, 648 (Pa. 2001) (“the legislature did not require that the

sentence of death actually be pending in order for [the Supreme] Court to

have jurisdiction”).

      I find Bryant particularly instructive to the jurisdictional question

presented in this case.   In Bryant, the PCRA court granted the petitioner

penalty phase relief but denied him guilt phase relief. He filed a notice of

appeal to this Court from the denial of guilt phase relief. This Court refused

to transfer the case to our Supreme Court and instead quashed the appeal.

The petitioner then sought allocatur from our Supreme Court and our Supreme

Court granted the petition for allowance of appeal. Our Supreme Court held


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that this Court erred by not transferring the appeal. See id. Our Supreme

Court exercised exclusive jurisdiction over the appeal from the denial of guilt

phase relief under section 9546(d). Under Bryant, it is sufficient for purposes

of section 9546(d) that the order challenged on appeal finally disposed of a

petition contesting a conviction in a case in which the death penalty was

imposed.6

       I make no finding that the death penalty need not be in place for our

Supreme Court to have exclusive jurisdiction over an appeal under section

9546(d). Instead, I rely on our Supreme Court’s recent practice of exercising

exclusive jurisdiction in similar circumstances and its express holding in

Bryant that a death sentence need not be in place for our Supreme Court to

have exclusive jurisdiction under section 9546(d). Bryant, 780 A.2d at 648.

It is not this Court’s job to determine why our Supreme Court interpreted

section 9546(d) in this manner. Instead, it is our duty to faithfully follow our

Supreme Court’s binding decision in Bryant.       We must presume that our

Supreme Court had sound reasons for interpreting section 9546(d) in this

manner. Bryant indicates that this rule is in place to permit our Supreme



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6 In other cases decided by our Supreme Court, it exercised exclusive
jurisdiction under similar circumstances. See Commonwealth v. Crispell,
193 A.3d 919 (Pa. 2018) (The petitioner was sentenced to death, the PCRA
court granted him penalty phase relief, and the PCRA court denied guilt phase
relief. The appeal from that order was taken to our Supreme Court.);
Commonwealth v. Walker, 36 A.3d 1 (Pa. 2011) (same).


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Court to set procedural standards in capital cases on collateral review, even if

penalty phase relief were awarded by the PCRA court. This is shown by our

Supreme Court’s language in Bryant counseling PCRA courts not to do what

the PCRA court did in this case.          Our Supreme Court explained why

resentencing a capital petitioner prior to final resolution of all claims in a PCRA

petition is problematic. See Bryant, 780 A.2d at 648. As an intermediate

appellate court, we cannot issue such procedural standards.

      Finally, I find Commonwealth v. Rompilla, 983 A.2d 1207 (Pa. 2009),

inapplicable to our analysis.    The binding holding in Bryant, interpreting

section 9546(d), cannot be overcome by a prior ruling interpreting section

9711(h). Section 9711(h) has different objectives than section 9546(d) and

this differentiation is evident in the plain language of the two statutes. Thus,

I believe the Majority’s reliance on Rompilla is misplaced.

      In sum, section 9546(d) requires only that an appeal be taken from a

final PCRA order in a case in which the death penalty has been imposed. In

this case, a valid death sentence was in place at the time Appellant filed his

PCRA petition.    The January 12, 2017 order disposed of all of Appellant’s

claims and was a final, appealable PCRA order. Under the plain language of

section 9546(d), and our Supreme Court’s decision in Bryant, a death

sentence need not currently be in place for our Supreme Court to have

exclusive jurisdiction over such appeals. In other words, when a PCRA court

issues a final order for purposes of the rules of appellate procedure, disposing


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of claims in a case where the death penalty was still in place at the time the

petition was filed, any appeal from that order must be taken to our Supreme

Court.    Hence, notwithstanding the delay between the interlocutory order

granting Appellant penalty phase relief and the final order denying him guilt

phase relief, I believed that our Supreme Court has exclusive jurisdiction over

this appeal from the denial of guilt phase relief.7 Accordingly, this Court lacks

jurisdiction to consider this appeal and I would transfer this case to the

Supreme Court of Pennsylvania. See 42 Pa.C.S.A. § 5103(a).




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7 This was not a case in which a court vacated the death sentence, no appeal
could be taken from that order, and a new penalty phase was necessary.
Under such circumstances, an appeal would properly be taken to this Court.
E.g. Commonwealth v. Kindler, 147 A.3d 890 (Pa. 2016). Similarly, this
was not a case in which Appellant’s conviction was vacated and a new trial
was necessary. Again, in such circumstances an appeal would properly be
taken to this Court. See id. at 895, citing Commonwealth v. Gibbs, 588
A.2d 13, 15-16 (Pa. Super. 1991).


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