                          [J-69-2015] [MO: Dougherty, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 702 CAP
                                              :
                     Appellee                 :   Appeal from the Judgment of Sentence
                                              :   entered on August 31, 2014 in the Court
                                              :   of Common Pleas, Westmoreland
              v.                              :   County, Criminal Division at No. CP-65-
                                              :   CR-0000851-2010. Post Sentence
                                              :   Motions Denied July 16, 2014.
MELVIN KNIGHT,                                :
                                              :
                     Appellant                :   SUBMITTED: October 7, 2015


                                 CONCURRING OPINION


JUSTICE BAER                                            DECIDED: November 22, 2016
       I join the majority opinion with the exception of Section V, and also write to

elaborate on a point supporting the grant of relief. I agree that Appellant is entitled to a

new penalty hearing as the Commonwealth conceded on the record that he had no

previous criminal history, yet the jury declined to find the mitigating circumstance of no

significant history of prior criminal convictions.     42 Pa.C.S. § 9711(e)(1).        This

disposition emanates from our decision in Commonwealth v. Rizzuto, 777 A.2d 1069

(Pa. 2001), which held that “where a mitigating circumstance is presented to the jury by

stipulation, the jury is required by law to find that mitigating factor.” Id. at 1089. The

Commonwealth’s explicit concession during closing argument that Appellant has no

prior criminal history is tantamount to a stipulation, thus, the mitigating factor has been

established as a matter of law, and the jury was required to find that circumstance and

consider it in the weighing of aggravating and mitigating circumstances.
       As the Court did in Rizzuto, the majority frames its holding in terms of whether

the absence of the criminal record was “undisputed.” See Slip Op. at 14 (stating that

“[w]hen the absence of a [criminal] record is undisputed, the jury has no discretion but to

find the objective circumstance, and specifically include it in any weighing of

aggravators and mitigators.”); Rizzuto, 777 A.2d at 1089 (same).        While I agree with

this general assessment, I write separately to elaborate on what constitutes an

“undisputed fact” in an effort to more thoroughly distinguish the established case law

relied upon by the Commonwealth herein, which holds that a capital jury is not required

to find a mitigating circumstance, even if the Commonwealth fails to present evidence

rebutting the existence of that circumstance. See e.g. Commonwealth v. Diamond, 83

A.3d 119, 134-35 (Pa. 2013) (rejecting the contention that the fact-finder was required

to find the Section 9711(e)(3) mitigating circumstance when the Commonwealth

presented no evidence to refute the mitigating factor because a jury is free to believe all,

part, or none of the evidence presented).1

       Here,   the   sole evidence     supporting the     Section 9711(e)(1) mitigating

circumstance was the testimony of Detective Verail that he examined Appellant’s

criminal history and concluded that Appellant had not been convicted previously of

felonies or misdemeanors. Absent the prosecutor’s explicit concession that Detective

Verail’s review of Appellant’s criminal history was correct, I am unconvinced that the jury

was required as a matter of law to find the Section 9711(e)(1) mitigating circumstance

because the jury was free to disbelieve the testimony presented, as a fact-finder has

exclusive authority to make credibility determinations. Diamond, 83 A.3d at 134. Stated


1
  The mitigating circumstance set forth at 42 Pa.C.S. § 9711(e)(3) provides that the
defendant’s capacity to appreciate the criminality of his conduct or to conform his
conduct to the requirements of law was substantially impaired.



                           [J-69-2015] [MO: Dougherty, J.] - 2
differently, it was not the unrefuted testimony of Detective Verail that made the fact of

Appellant’s lack of criminal history undisputed, but rather the Commonwealth’s

concession in its closing argument that such fact was true. Accordingly, I agree with the

majority that the prosecutor’s concession is jurisprudentially indistinguishable from the

stipulation in Rizzuto, and, thus, established the mitigating circumstance as a matter of

law.

       Additionally, I disassociate myself from Section V. of the majority opinion, entitled

“Other Issues,” which offers guidance to the trial court on penalty phase claims that

have become moot due to the grant of a new penalty hearing. It is well-established that

“[w]here the issues in a case are moot, any opinion issued would be merely advisory

and, therefore, inappropriate.” Stuckley v. Zoning Hearing Bd., 79 A.3d 510, 519 (Pa.

2013) (citations omitted); see also Commonwealth v. Moore, 860 A.2d 88, 100 (Pa.

2004) (holding that where a defendant is granted a new penalty hearing, all remaining

penalty phase issues are rendered moot). Here, the majority expounds upon claims

involving the admissibility of evidence during the penalty phase, while acknowledging

that the trial court is not bound by the Court’s suggestions in this regard. Slip Op. at

n.12 (stating that “[o]ur discussion of these issues should not be read as expressing any

view on them, or on sub-issues we do not discuss”). While the majority finds that such

issues “provided cause for concern,” Slip Op. at 20, there is simply no justiciable case

or controversy warranting further comment on remaining penalty phase issues when

Appellant has been granted a new penalty hearing.




                           [J-69-2015] [MO: Dougherty, J.] - 3
