                                 [J-80-2016]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,JJ.


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 719 CAP
                                              :
                     Appellant                :   Appeal from the order entered on
                                              :   11/16/2015 in the Court of Common
                                              :   Pleas, Philadelphia County, Criminal
              v.                              :   Division at No. CP-51-CR-0827471-
                                              :   1982.
                                              :
JOSEPH J. KINDLER,                            :
                                              :
                     Appellee                 :   SUBMITTED: June 15, 2016


                                         OPINION


JUSTICE BAER                                            DECIDED: September 28, 2016
       This is a direct appeal of an interlocutory order precluding the Commonwealth

from presenting victim impact evidence at the upcoming re-sentencing hearing of

Appellee Joseph J. Kindler, who was convicted of first-degree murder in 1983 and

previously was sentenced to death.       Preliminarily, we must determine whether this

Court has jurisdiction to entertain the appeal. For the reasons that follow, we conclude

that this Court lacks jurisdiction over this appeal; thus, we do not reach the merits of the

Commonwealth’s claim that the trial court erred by entering the order precluding the

Commonwealth from presenting victim impact evidence at Appellee’s re-sentencing

hearing. Instead, we transfer the appeal to the Superior Court.

       The procedural background relevant to our jurisdictional determination is

protracted but can be summarized as follows. The Commonwealth charged Appellee

with several crimes in connection with the killing of David Bernstein. On November 15,
1983, a jury convicted Appellee of first-degree murder, kidnapping, and criminal

conspiracy. For his murder conviction, the jury sentenced Appellee to death.

       Appellee subsequently filed post-verdict motions; however, before the trial court

disposed of the motions, Appellee escaped from prison.          The Commonwealth then

asked the trial court to dismiss Appellee’s post-verdict motions due to his fugitive status.

The court granted the Commonwealth’s request and deferred formal sentencing until

Appellee returned to Pennsylvania.

       On April 26, 1985, Appellee was arrested in St. Adele, which is located in the

Province of Quebec, Canada. During the extradition process, Appellee escaped from

his Canadian prison. He eventually was captured and returned to Pennsylvania. The

trial court sentenced him to death on October 2, 1991, and this Court affirmed that

judgment of sentence in a plurality opinion on February 9, 1994. Commonwealth v.

Kindler, 639 A.2d 1 (Pa. 1994). The United States Supreme Court denied Appellee’s

petition for a writ of certiorari.

       On January 11, 1996, Appellee filed a petition pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. The PCRA court dismissed Appellee’s

petition, and this Court affirmed that court’s order, essentially concluding that Appellee

forfeited his right to pursue collateral relief by absconding from the law following his

conviction. Commonwealth v. Kindler, 722 A.2d 143 (Pa. 1998). Appellee then turned

to the federal courts in search of relief.

       Specifically, Appellee filed a petition for a writ of habeas corpus in the United

States District Court for the Eastern District of Pennsylvania. That court granted in part

Appellee’s petition, holding that error had occurred during Appellee’s sentencing

hearing. Kindler v. Horn, 291 F.Supp.2d 323 (E.D. Pa. 2003). In so doing, the court

instructed that the Commonwealth could either sentence Appellee to life imprisonment




                                        [J-80-2016] - 2
or hold a new sentencing hearing within 180 days of the court’s order. Id. at 367. The

parties appealed, and the United States Court of Appeals for the Third Circuit affirmed.1

Kindler v. Horn, 542 F.3d 70 (3d Cir. 2008). The Commonwealth sought review of that

decision, and the United States Supreme Court granted the Commonwealth’s petition

for a writ of certiorari.

       The Supreme Court ultimately vacated the Third Circuit’s judgment and

remanded for further proceedings.2 Beard v. Kindler, 558 U.S. 53 (2009). On remand,

the Third Circuit affirmed in part and reversed in part the District Court’s order; the end

result was that the court directed the Commonwealth either to sentence Appellee to life

imprisonment or to hold a new sentencing hearing within 180 days. Kindler v. Horn, 642

F.3d 398 (3d Cir. 2011). The United States Supreme Court denied further review, and

the Commonwealth chose to pursue a new sentencing hearing.

       When the matter was remanded to the trial court for re-sentencing, Appellee filed

a number of motions. Relevant to this opinion, Appellee filed a motion in limine wherein

he sought an order precluding the Commonwealth from presenting victim impact

evidence at his re-sentencing hearing, which is the subject of the underlying merits of

this appeal. Appellee highlighted that his homicide offense occurred in 1982 and that,


1
  In January of 2006, Appellee filed another PCRA petition, which the PCRA court
denied as untimely filed. Appellee appealed from that order, and this Court affirmed per
curiam. Commonwealth v. Kindler, 970 A.2d 426 (Pa. 2009).
2
  In its opinion granting Appellee a new trial, the federal district court, before addressing
the merits of Appellee’s habeas claims, concluded that this Court’s application of the
fugitive forfeiture rule in Appellee’s PCRA appeal did not provide an adequate basis to
bar federal review of the habeas claims. The Third Circuit agreed with this conclusion.
In reviewing this determination, the United States Supreme Court held “that a
discretionary state procedural rule[, such as the fugitive forfeiture rule,] can serve as an
adequate ground to bar federal habeas review.” Kindler, 558 U.S. at 60. The High
Court then remanded the matter to the Third Circuit for proceedings consistent with the
Court’s opinion.



                                      [J-80-2016] - 3
at that time, Pennsylvania’s death penalty statute did not allow the Commonwealth to

introduce victim impact evidence during a capital sentencing hearing.

       Appellee acknowledged that the death penalty statute was amended in 1995 to

allow for the introduction of victim impact evidence during capital sentencing hearings.

He, however, contended that the amendment applies only to sentences imposed for

offenses that occurred on or after the effective date of the amendment. See, e.g.,

Commonwealth v. Tedford, 960 A.2d 1, 40 n. 28 (Pa. 2008) (“At the time of [Tedford’s

1987 trial], victim-impact testimony was inadmissible.     Pennsylvania’s death penalty

statute was amended on October 11, 1995 so as to allow victim-impact evidence; the

amendment, however, only applies to sentences imposed for offenses committed on or

after its effective date.”) (citations omitted).

       The trial court granted Appellee’s motion to preclude the Commonwealth from

presenting victim impact evidence, and the Commonwealth filed an interlocutory appeal

in this Court. In its jurisdictional statement, the Commonwealth invoked this Court’s

jurisdiction simply by citing to 42 Pa.C.S. § 722.3 Appellee filed a response to the

Commonwealth’s statement of jurisdiction. Appellee argued that, because he is not

currently sentenced to death, this Court lacks jurisdiction to consider this appeal and,

therefore, should transfer the matter to the Superior Court.

       On March 11, 2016, this Court issued an order deferring a jurisdictional

determination and directing the parties to address the propriety of this Court’s



3
  Section 722 enumerates eight classes of cases over which this Court has exclusive
appellate jurisdiction of appeals from final orders entered by the courts of common
pleas. Subsection (4) of Section 722 is the only subsection relevant to this appeal.
That subsection grants this Court automatic appellate review of appeals following the
entry of a sentence of death, 42 Pa.C.S. § 9711(h), and of appeals from final orders
entered in PCRA proceedings where the petitioner faces a sentence of death, 42
Pa.C.S. § 9546(d). 42 Pa.C.S. § 722(4).



                                         [J-80-2016] - 4
jurisdiction to consider this interlocutory appeal in their briefs. The parties subsequently

submitted their briefs to this Court wherein they address both this Court’s jurisdiction in

this matter and the substantive issue of whether the trial court erred by granting

Appellee’s motion in limine. We must first address the threshold jurisdictional issue,

which presents a question of law. Accordingly, our standard of review is de novo, and

our scope of review is plenary.        Com., Dep’t of Envtl. Prot. v. Cromwell Twp.,

Huntingdon Cty., 32 A.3d 639, 646 (Pa. 2011)

       As a preliminary matter, it is undisputed that the order which the Commonwealth

asks this Court to review is interlocutory. The Commonwealth contends, however, that

the order is appealable as of right.4 Subsection 702(a) of the Judicial Code instructs

that an “appeal authorized by law from an interlocutory order in a matter shall be taken

to the appellate court having jurisdiction of final orders in such matter.”5 42 Pa.C.S.


4
  The Commonwealth takes the position that the interlocutory order is appealable as of
right pursuant to Pa.R.A.P. 311(d). Commonwealth’s Brief at 1. Rule 311(d) provides:

       In a criminal case, under the circumstances provided by law, the
       Commonwealth may take an appeal as of right from an order that does not
       end the entire case where the Commonwealth certifies in the notice of
       appeal that the order will terminate or substantially handicap the
       prosecution.

Pa.R.A.P. 311(d). In its notice of appeal, the Commonwealth certified that the trial
court’s order terminates or substantially handicaps the prosecution. Given that we
ultimately conclude that this Court lacks jurisdiction to entertain this appeal, we offer no
opinion as to whether the interlocutory order in question is appealable pursuant to Rule
311(d).
5
  To the extent that we must interpret the Judicial Code to determine whether this Court
has jurisdiction to entertain this appeal, such a task is guided by the Statutory
Construction Act, 1 Pa.C.S. §§ 1501-1991. Pursuant to the Statutory Construction Act,
the object of all statutory construction is to ascertain and effectuate the General
Assembly’s intention. 1 Pa.C.S. § 1921(a). When the words of a statute are clear and
free from ambiguity, the letter of the statute is not to be disregarded under the pretext of
pursuing its spirit. 1 Pa.C.S. § 1921(b).



                                      [J-80-2016] - 5
§ 702(a).   The Judicial Code further directs that the Superior Court has exclusive

“jurisdiction of all appeals from final orders of the courts of common pleas, regardless of

the nature of the controversy or the amount involved, 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. § 742. Thus, as a general rule, the

Superior Court has jurisdiction to entertain appeals from final and interlocutory orders

entered in criminal prosecutions.

       There are exceptions to this general rule which implicate this Court’s jurisdiction.

Specifically, as we previously noted, Section 722 of the Judicial Code enumerates the

classes of cases over which this Court has exclusive appellate jurisdiction of appeals

from final orders entered by the courts of common pleas.         42 Pa.C.S. § 722.      As

discussed in footnote 3, supra, the only subsection of Section 722 which has any

relevance to this case is Subsection (4), which empowers this Court with automatic

appellate review of appeals following the entry of a sentence of death, 42 Pa.C.S.

§ 9711(h), and of appeals from final orders entered in PCRA proceedings where the

petitioner faces a sentence of death, 42 Pa.C.S. § 9546(d). 42 Pa.C.S. § 722(4).

       Notwithstanding the tortured history underlying this matter, at this juncture,

Appellee stands convicted of first-degree murder and is awaiting a new penalty phase

hearing. Indeed, the order that the Commonwealth wishes to challenge was entered

during proceedings pertaining to Appellee’s new penalty hearing.         For this reason,

Subsection 9546(d) of the PCRA has no impact on this case. Moreover, pursuant to

Subsection 9711(h), this Court’s jurisdiction to entertain direct appeals of orders entered

in criminal prosecutions is triggered only when defendants are sentenced to death.

See, e.g., 42 Pa.C.S. § 9711(h)(1) (“A sentence of death shall be subject to automatic

review by the Supreme Court of Pennsylvania pursuant to its rules.”). Stated differently,




                                     [J-80-2016] - 6
if a defendant has not been sentenced to death, this Court has no jurisdiction under

Subsection 9711(h) to consider in the first instance an appeal from an order or judgment

entered in a criminal prosecution.

       Here, Appellee previously was sentenced to death; however, the federal courts

vacated that sentence. Thus, the narrow exception contained in Subsection 9711(h)

that vests jurisdiction in this Court to review directly matters decided in criminal

prosecutions has not been triggered. Consequently, we hold that, in accordance with

the general rule discussed above, the Superior Court is the court that must consider this

interlocutory appeal in the first instance.6

6
  Despite the fairly obvious answer to the jurisdictional question presented in this matter,
the Commonwealth contends that this Court’s decision in Commonwealth v. Bryant, 780
A.2d 646 (Pa. 2001), dictates that this Court has jurisdiction over this appeal. We
disagree.

      Bryant was sentenced to death and later filed a PCRA petition. The PCRA court
denied Bryant guilt-phase relief but granted him penalty-phase relief in the form of a
new sentencing hearing. Bryant appealed the denial of his guilt-phase-based PCRA
claims to the Superior Court but later moved to have the appeal transferred to this
Court. The Superior Court denied Bryant’s motion to transfer, quashed his appeal, and
remanded the case for re-sentencing.

       On discretionary review, this Court concluded that the Superior Court erred by
denying Bryant’s motion to transfer his appeal to this Court. Notably, our conclusion in
this regard was based exclusively upon the plain language of Subsection 9546(d) of the
PCRA, i.e., the subsection of the PCRA that addresses when this Court has jurisdiction
to review orders entered in PCRA proceedings. Unlike the circumstances in Bryant,
Subsection 9546(d) of the PCRA has no relevance in the case sub judice because the
order in question here was not entered in a PCRA proceeding.

       We acknowledge that, on one occasion, this Court applied the Bryant Court’s
holding in a direct appeal that technically did not involve the PCRA. The situation
presented in that case, Commonwealth v. Cooper, 941 A.2d 655 (Pa. 2007), clearly is
distinguishable from this matter.

       After Cooper was sentenced to death, new counsel filed post-sentence motions
raising, inter alia, collateral claims of ineffective assistance of counsel. The trial court
held hearings on the motions and ultimately vacated the sentence of death, ordering a
(continuedL)

                                       [J-80-2016] - 7
       In closing, we observe that our conclusion complies with the plain language of

the Judicial Code, and it is consistent with long-standing Superior Court precedent and

this Court’s Rules of Appellate Procedure. See Commonwealth v. Gibbs, 588 A.2d 13,

15-16 (Pa. Super. 1991) (holding that, pursuant to 42 Pa.C.S. § 702, the Superior Court

has exclusive appellate jurisdiction over interlocutory appeals filed in capital cases when

the court of common pleas has not yet entered a judgment of sentence); Note to

Pa.R.A.P. 702 (stating that “the mere possibility of [a death] sentence is not intended to

give the Supreme Court direct appellate jurisdiction over interlocutory orders in

homicide and related cases since generally a death sentence is not imposed”).

       Accordingly, we transfer this case to the Superior Court.


       Chief Justice Saylor and Justices Todd, Donohue, Dougherty, Wecht and Mundy

join the opinion.




(Lcontinued)
new penalty phase hearing based upon its conclusion that sentencing counsel rendered
ineffective assistance of counsel. The Commonwealth appealed from the portion of the
order which granted Cooper a new sentencing hearing, and Cooper appealed from the
portion of the order that denied his other post-sentence claims for relief. Despite the
fact that the trial court had vacated Cooper’s death sentence, this Court exercised direct
appeal jurisdiction over the appeals, citing Bryant and stating that in “prior cases that
involved collateral review, we have characterized matters in which a lower court vacated
the death sentence as ones ‘in which the death penalty has been imposed,’ thus
triggering our review of all issues properly preserved on appeal.” Cooper, 941 A.2d at
660 (citing Bryant, 780 A.2d at 648). Unlike Cooper, this case does not involve
collateral review or an order from a trial court vacating a sentence of death but, rather,
involves pre-penalty phase proceedings.




                                     [J-80-2016] - 8
