J-S05022-19



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                          Appellant      :
                                         :
                 v.                      :
                                         :
JAMES PAUL FINNECY                       :
                                         :
                         Appellee        :   No. 998 WDA 2018

            Appeal from the PCRA Order Entered June 19, 2018
             in the Court of Common Pleas of Venango County
            Criminal Division at No(s): CP-61-CR-0000498-2013
                                        CP-61-CR-0000688-2009

BEFORE:     PANELLA, P.J., NICHOLS, J. and STRASSBURGER, J.*

DISSENTING MEMORANDUM BY STRASSBURGER, J.:

FILED: April 17, 2019

      Because I believe the Majority errs in holding that Appellant has a

“history of present or past violent behavior,” 61 Pa.C.S. § 4503(1), based

upon a single conviction for a non-enumerated crime of violence, I respectfully

dissent.

      The PCRA court held, and the Majority affirms, that Appellant is not

eligible for RRRI because he has a “history of present or past violent behavior”

based upon one prior conviction for resisting arrest. I acknowledge that on

Finnecy’s direct appeal, I agreed with the Majority that Appellant’s conviction

for resisting arrest rendered him ineligible for the RRRI program.         See

Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016)


*Retired Senior Judge assigned to the Superior Court.
J-S05022-19


(Strassburger, J., concurring).    However, since then, our Supreme Court

decided Commonwealth v. Cullen-Doyle, 164 A.3d 1239, 1244 (Pa. 2017)

(holding that a “single, present conviction for a violent crime does not

constitute a history of violent behavior”).

      I am not convinced that the holding on Finnercy’s direct appeal has the

same vitality after Cullen-Doyle. I still agree that resisting arrest is a crime

of violence within the meaning of the RRRI statute, and nothing in Cullen-

Doyle affects that analysis. See Finnercy, 135 A.3d at 1037 (holding, on

Finnecy’s direct appeal, that the crime of resisting arrest is a crime of

violence).   But based upon Cullen-Doyle, I question whether one conviction

for resisting arrest constitutes a history of present or past violent behavior

within the meaning of the RRRI statute.

      The specific holding of Cullen-Doyle - that a single present conviction

does not equate to a history of violent behavior - does not govern the outcome

in the instant case. Cullen-Doyle, 164 A.3d at 1244. Unlike Cullen-Doyle,

the crime of violence here is not the present crime for which Appellant is being

sentenced (or more accurately, re-sentenced). But I am persuaded by the

reasoning in Cullen-Doyle that the language of the RRRI statute is

ambiguous; that the word history refers to “an established record of or pattern

of past or present violent behavior;” that the “Legislature sought to offer

greater reform opportunities for first-time offenders than for repeat

offenders;” that construing the statute broadly would disqualify too many



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individuals based upon a mere “single instance of violence;” that all crimes of

violence should not be per se disqualifying; and that the rule of lenity means

the statute should be construed in favor of those seeking admission to the

program. Id. at 1241-44. Accordingly, I would hold that when a defendant

has a single prior conviction for a non-enumerated crime of violence, that

single prior conviction should not, by itself, disqualify the defendant from

participating in the RRRI program. Thus, in the instant case, I would hold that

Appellant’s sentence is illegal, and the PCRA court erred by determining that

Appellant did not qualify for RRRI.




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