                         [J-44-2019] [OAJC: Dougherty, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                :   No. 57 MAP 2018
                                              :
                     Appellee                 :   Appeal from the Order of Superior
                                              :   Court at No. 266 MDA 2017 dated
                                              :   April 12, 2018 Vacating the Judgment
              v.                              :   of Sentence dated January 13, 2016
                                              :   of the Lackawanna County Court of
                                              :   Common Pleas, Criminal Division, at
 PATRICK TIGHE,                               :   No. CP-35-CR-0001297-2012 and
                                              :   Remanding for resentencing.
                     Appellant                :
                                              :   ARGUED: May 14, 2019


                     CONCURRING AND DISSENTING OPINION


JUSTICE WECHT                                          DECIDED: February 19, 2020

      I agree with the Plurality’s judgment, as reflected in the Opinion Announcing the

Judgment of the Court (“OAJC”), that the issues as to which we granted review—which

concern the tension between protecting a criminal defendant’s right to represent himself

and avoiding where possible the imposition of excessive trauma upon a child witness—

should not be resolved here. But for much the same reason, I disagree with the Plurality’s

suggestion that we should decide this case by adopting sua sponte a novel principle of

law that the parties did not pursue and the lower courts did not address.

      As the learned Plurality relates, these issues hinge upon the Supreme Court’s

decision in Maryland v. Craig, 497 U.S. 836 (1990), and the Court of Appeals’ decision in

Fields v. Murray, 49 F.3d 1024 (4th Cir. 1995). Craig held that the state may limit a

defendant’s Confrontation Clause right by arranging for a child victim witness to give
testimony remotely, rather than in court in the presence of the defendant, but only upon

a case-specific determination that in-court testimony will cause trauma to the witness that

exceeds the ordinary emotional difficulty of facing one’s assailant. See Craig, 497 U.S.

at 857. In Fields, the Court of Appeals extended this limiting principle from the context of

the Confrontation Clause to the right to self-representation, reasoning generally that,

because each was rooted in the Sixth Amendment, they could be subject to similar

limitations. See Fields, 49 F.3d at 1035.1

       As set forth above, these holdings hinged upon a case-specific examination of the

traumatic effect upon the witness of being confronted or examined by the defendant. In

this case, we cannot answer these questions because, not only does the record lack any

fact-finding on this particular point,2 but the Commonwealth expressly waived the

opportunity the trial court afforded it to produce evidence relevant to that inquiry. 3

       Rather than stop there, however, the Plurality instead relies upon the right-for-any-

reason doctrine to hold that Patrick Tighe forfeited his right to represent himself when he




1      In Fields, the analogy it drew between the permissibility of limiting the right of
confrontation and limiting the right of self-representation comprised an alternative basis
for decision. Separately and dispositively, it affirmed the lower court’s determination that
the defendant had failed successfully to invoke his right to self-representation in the first
instance. Fields, 49 F.3d at 1034.
2      See OAJC at 19 (“If there is a parallel between limitations of the confrontation and
self-representation rights guaranteed by the Sixth Amendment and Article I, Section 9 of
the Pennsylvania Constitution, relevant evidence would presumably be required to justify
those limitations . . . . Accordingly, this case is a poor vehicle to decide the matter, as
there simply was no evidentiary showing with respect to [victim’s] emotional response to
direct questioning by appellant.”).
3      See OAJC at 6.



                           [J-44-2019] [OAJC: Dougherty, J.] - 2
contacted the victim months before trial and implored her not to pursue his prosecution.4

Notably, the parties expressly have eschewed forfeiture as a basis for decision. Two of

the three questions upon which we granted review expressly frame the issue as excluding

waiver or forfeiture, and the third issue implicates the emotional trauma test that the

Plurality correctly determines we should not address on the present record.                 See

Commonwealth v. Tighe, 195 A.3d 850 (Pa. 2018) (per curiam) (respectively qualifying

the first and second questions “for reasons other than waiver or forfeiture of [the right to

self-representation],” and “absent waiver or forfeiture of the accused’s right to self-

representation”).5 Accordingly, throughout their briefing here, as in the Superior Court,

the parties do not address the subject of forfeiture by conduct of the right to self-

representation.6



4      See OAJC at 19-22.
5      The Plurality reproduces the questions in full. See OAJC at 11-12.
6       The Plurality’s assertion that Tighe himself dedicates three pages of his brief to
forfeiture clearly mischaracterizes the collective thrust of that passage. See OAJC at 12
n.15 (citing Brief for Tighe at 12-14) (“[A]ppellant’s brief devotes several pages to this
precise issue [i.e., forfeiture].”). In point of fact, Tighe mentions forfeiture only in reciting
the broad principles and limitations governing self-representation generally, and
concludes the very passage in question:

       There is no suggestion that [Tighe] waived or forfeited his right to self-
       representation after it was granted. The court did not find [Tighe]
       disrespectful or disruptive, nor was it implied or indicated in the record. The
       record shows [that Tighe] exercised proper decorum in questioning
       witnesses and in addressing the court.

Brief for Tighe at 14 (footnote omitted). Thus, Tighe did not invite this Court’s sua sponte
treatment of forfeiture in resolving his appeal. Moreover, the Commonwealth only refers
to forfeiture once, in a footnote distancing itself from that principle. See Brief for the
Commonwealth at 15 n.2 (“Appellant’s and Amicus’[s] suggestions that the
Commonwealth is claiming that Appellant ‘forfeited’ his right to represent himself is



                           [J-44-2019] [OAJC: Dougherty, J.] - 3
       The    right-for-any-reason    doctrine   may     be   applied   only   under    limited

circumstances. We have explained:

       Where a court makes a correct ruling, order, decision, judgment or decree,
       but assigns an erroneous reason for its action, an appellate court will affirm
       the action of the court below and assign the proper reason therefore. This
       approach however is only appropriate where the correct basis for the ruling,
       order, decision, judgment or decree is clear upon the record. . . . Where
       disputed facts must be resolved appellate courts should refrain from
       assuming the role of a fact-finder in an attempt to sustain the action of the
       court below.

Bearoff v. Bearoff Bros., Inc., 327 A.2d 72, 76 (Pa. 1974) (cleaned up).

       The legal basis of the Plurality’s “any reason” is not found in Pennsylvania law.

Instead, the Plurality relies upon the California Supreme Court’s decision in People v.

Carson, 104 P.3d 837 (Cal. 2005), which it cites for the proposition that acts other than

in-court disruptions may warrant forfeiture of the right to counsel, a principle that this Court

has not previously endorsed. See OAJC at 20. However, in relying upon Carson for the

mere proposition that conduct warranting forfeiture of the right to counsel need not

happen during trial or inside the courtroom, which may well be sound, the OAJC entirely

disregards the numerous caveats the Carson court identified as relevant to a forfeiture

inquiry.

       The Carson court explained that “[t]ermination of the right of self-representation is

a severe sanction and must not be imposed lightly. Nonetheless, . . . trial courts should

be given sufficient discretion when confronted with behavior—whether occurring in court

or out of court—that threatens to compromise the court’s ability to conduct a fair trial.”

Carson, 104 P.3d at 839. But the court cautioned that “[n]ot every obstructive act will be


incorrect. Rather, the Commonwealth’s position is that the right can be ‘narrowly limited’
as the Superior Court concluded.”).


                           [J-44-2019] [OAJC: Dougherty, J.] - 4
so flagrant and inconsistent with the integrity and fairness of the trial that immediate

termination is appropriate.” Id. at 841-42.

       Accordingly, the California court emphasized, before finding forfeiture of the right

to self-representation, the trial court must specifically examine whether the defendant’s

conduct has given the court good cause to believe that the defendant will disrupt the

proceedings or compromise the integrity of the trial itself:

       It is incumbent on the trial court to document its decision to terminate self-
       representation with some evidence reasonably supporting a finding that the
       defendant’s obstructive [out-of-court] behavior seriously threatens the core
       integrity of the trial. . . . To this end, the court may need to hold a hearing
       or may want to solicit the parties’ respective arguments with written points
       and authorities and any evidentiary support on which they may seek to
       rely. . . .

       Such a record should answer several important questions. Most critically,
       a reviewing court will need to know the precise misconduct on which the
       trial court based the decision to terminate. The court should also explain
       how the misconduct threatened to impair the core integrity of the trial. Did
       the court also rely on antecedent misconduct and, if so, what and why? Did
       any of the misconduct occur while the defendant was represented by
       counsel? If so, what is the relation to the defendant’s self-representation?
       Additionally, was the defendant warned such misconduct might forfeit his
       Faretta rights?[7] Were other sanctions available? If so, why were they
       inadequate? In most cases, no one consideration will be dispositive; rather,
       the totality of the circumstances should inform the court’s exercise of its
       discretion.

Id. at 842-43 (cleaned up). The record before us informs these questions only glancingly,

if at all, and only to the extent we choose to make our own factual determinations where

the trial court did not. In fact, the trial court’s findings of fact are no more responsive to




7      See Faretta v. California, 422 U.S. 806 (1975) (holding that a defendant has a
constitutional right to represent himself when he voluntarily chooses to do so, and that a
state may not force a lawyer upon him).



                           [J-44-2019] [OAJC: Dougherty, J.] - 5
Carson’s numerous concerns than they are to the questions as to which we granted

review.8

       In Carson, the defendant received evidence from an investigator to which he was

not entitled, including, inter alia, contact information for the prosecution’s witnesses. Id.

at 843. This breach was especially troubling because the defendant had a history of

multiple attempts to suborn perjury, fabricate an alibi, and intimidate a prosecution

witness. Id. The trial court held a hearing, reviewed the investigative materials upon their

retrieval from the defendant’s cell, and made certain findings of fact. But the trial court

had made no express assessment relative to the numerous factors that the California

Supreme Court deemed critical in determining whether to impose the “severe” sanction

of forfeiture. Rather than summarily denying the defendant’s right to self-representation

based upon its own interpretation of the record, the California Supreme Court remanded

the case for further fact-finding on these questions. Id. at 844.



8       The California Supreme Court in Carson recommended a totality-of-the-
circumstances analysis involving eight discrete factual considerations. While the Plurality
faults me for observing that the record is not responsive to these factors, in purporting to
follow the Carson approach, the Plurality identifies only “the precise misconduct on which
the trial court based the decision to terminate” self-representation—Tighe’s violation of
the no-contact order. From that undisputed misconduct the Plurality infers that the trial
court necessarily deemed Tighe’s right to cross-examine the victim forfeit based upon the
fact that the Commonwealth suggested forfeiture as grounds for precluding Tighe’s cross-
examination and the trial court granted the Commonwealth’s requested relief. See OAJC
at 22-23 n.23. This inference is unwarranted given that the Commonwealth ventured
several independent bases for such a result, including theories not rooted in forfeiture,
and that the trial court never expressly embraced forfeiture as its guiding theory, a
problem I discuss at length below. More importantly, though, the Plurality omits even to
mention let alone consider seven of Carson’s eight defining factual and prudential
considerations—among them “how the misconduct threatened to impair the core integrity
of the trial,” “was the defendant warned such misconduct might forfeit his” right to self-
representation, “[w]ere other sanctions available,” and, if so, “why were they inadequate.”
Id.


                          [J-44-2019] [OAJC: Dougherty, J.] - 6
       Carson had an indisputably lengthier history of misconduct implicating the integrity

of trial than Tighe’s behavior in this case. Unlike Carson’s, Tighe’s misconduct was

isolated to a single incident. Carson repeatedly had attempted to influence others to

compromise the truth-determining process. I do not intend to minimize the impropriety of

Tighe’s violation of the no-contact order, nor am I naïve about his intention to discourage

the victim from moving forward with this prosecution. However, even taking the victim’s

own testimony at face value, I cannot agree with the Plurality’s characterization of Tighe’s

communication with the victim as sufficient without more to justify infringing his

constitutional right to self-representation when the trial court itself declined to do so.

       Even assuming that any degree of witness intimidation in advance of trial may

furnish a sufficient basis for forfeiture of the right to self-representation, here the trial court

did not clearly find that this was the effect of Tighe’s contacts with his alleged victim, nor

did the court even suggest that it anticipated disruptive trial behavior or other in-court

conduct likely to compromise the integrity of the trial, Carson’s overriding concern. Tighe

was not warned that his behavior could result in forfeiture of his right to represent himself.

Upon learning of the violation, even though Tighe had already confirmed his desire to

proceed pro se, the trial court elected to impose an alternative sanction upon Tighe in

revoking his bail, returning him to jail, and resetting bail at $750,000, a sanction designed

to ameliorate the victim’s stated fear for her personal safety prompted by the call.9 After



9       Because the Plurality necessarily predicates its entire forfeiture analysis on the
victim’s comments at this proceeding, it is worth noting that she related only her
contemporaneous response to the call, spoke only in the past tense, and she was neither
asked nor commented upon how that call might bear upon her testimony at trial. See
Notes of Testimony, 6/4/2013, at 47 (“I was scared. I was shocked. I didn’t know what
to think because I wasn’t notified that [Tighe] was out [on bail]. I felt like I was scared he



                            [J-44-2019] [OAJC: Dougherty, J.] - 7
Tighe’s isolated, albeit serious violation of the no-contact order and the trial court’s

decision to sanction him by revoking his bond, Tighe made no further effort to contact the

victim, impede her testimony, or otherwise interfere with the proceedings.            To the

contrary, no one claims that Tighe ever again behaved in any way inconsistent with due

decorum or the rules of court or in a manner that otherwise threatened to compromise the

integrity of the truth-determining process. Thus, even under the Carson approach, the

record lacks a sufficient basis to support forfeiture, and, at a minimum, the trial court

should have the opportunity to conduct fact-finding tailored to that specific inquiry in the

first instance.

       The California rule does not strike me as unsound, applied with the care for the

important constitutional right that the Carson court’s circumspection embodied. Other

courts also have embraced a similarly cautious approach to the forfeiture by conduct of a

defendant’s right to represent himself, holding that there must be some nexus between

the disruptive conduct and the likelihood of disrupting the trial proceedings. See Faretta

v. California, 422 U.S. 806, 834 n.46 (1975) (“[T]he trial judge may terminate self-

representation by a defendant who deliberately engages in serious and obstructionist

misconduct.”); United States v. Smith, 830 F.3d 803, 810 (8th Cir. 2016) (quoting United

States v. Flewitt, 874 F.2d 669, 674 (9th Cir. 1989)) (“A defendant granted pro se status

may . . . be required to comply with pretrial orders, but pretrial activity is relevant to

continued pro se status only if it affords a strong indication that the defendant will disrupt

the proceedings in the courtroom.” (cleaned up; emphasis added)). In Smith, the Court


would find me. I didn’t know if he was already trying to find me. . . . I felt like I was in
danger.”).



                           [J-44-2019] [OAJC: Dougherty, J.] - 8
of Appeals expressed the view that, even faced with a disruptive defendant, the best

judicial response is to impose “lesser sanctions” than forfeiture. Id.10

       This Court, too, has suggested that a defendant who behaves disruptively should

receive a warning that he risks forfeiting his right to represent himself and should be

granted a subsequent opportunity to behave appropriately:

       All defendants, even those who may display the potential to be disruptive,
       have the right to self-representation. In such instances, however, it is
       advisable that stand-by counsel be appointed. . . .                [I]n such
       circumstances . . . [t]he court should explain to the defendant the standards
       of conduct he will be expected to observe. If the defendant misbehaves, he
       should be warned that he will be removed from the court, his right to
       represent himself will be considered waived, and the trial will continue in his
       absence with standby counsel conducting the defense. If the defendant
       again misbehaves, these measures should be taken.

Commonwealth v. Abu-Jamal, 720 A.2d 79, 109 (Pa. 1998) (cleaned up; emphasis

added). But no such opportunity was granted Tighe, and such restraint is nowhere to be

found in the Plurality’s expansive application of the Carson rubric.

       Even where a rule of settled Pennsylvania law furnishes a right-for-any-reason

ground for disposition, this Court should be cautious in applying it, especially when doing

so in the context of discretionary review diverts us from the questions we intended to

review. We should be more reluctant still to do so when the legal principle relied upon

has not yet been endorsed in the relevant form by this Court, the parties offer no advocacy


10      In Faretta, the Supreme Court incorporated by reference its decision in Illinois v.
Allen, 397 U.S. 337 (1970), which concerned not the right to self-representation, but
rather a defendant’s Sixth Amendment right to be present during his trial. In Allen, noting
that “courts must indulge every reasonable presumption against the loss of constitutional
rights,” the Court held that a defendant can forfeit his right to be present if, “after he has
been warned by the judge that he will be removed if he continues his disruptive behavior,
he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and
disrespectful of the court that his trial cannot be carried on with him in the courtroom.”
Allen, 397 U.S. at 343.


                           [J-44-2019] [OAJC: Dougherty, J.] - 9
concerning that principle, the record reveals limited and contested factual support for its

application, and the trial court’s fact-finding is devoid of factual predicates critical to the

novel principle’s application. See In re A.J.R.-H., 188 A.3d at 1176 (“[The right-for-any-

reason doctrine] may not be used to affirm a decision when the appellate court must

weigh evidence and engage in fact finding or make credibility determinations to reach a

legal conclusion.”); cf. Mitchell v. Wisconsin, ___ U.S. ___, 139 S. Ct. 2525, 2551 (2019)

(Gorsuch, J., dissenting) (“While I do not doubt that the Court may affirm for any reason

supported by the record, the application of the exigent circumstances doctrine in this area

poses complex and difficult questions that neither the parties nor the courts below

discussed.”).

       The Plurality’s sua sponte adoption of a foreign jurisdiction’s reasoning in a case

that involved facts and circumstances far more pertinent to the risk of disruptive conduct

than those presented in this case—and yet still declined to find forfeiture absent fact-

finding directly addressing the risk of disruptive behavior or a compromised proceeding

presented by the defendant’s self-representation—reflects an extraordinary and

imprudent employment of the right-for-any-reason doctrine. In merely precluding Tighe

from cross-examining one witness, the trial court signaled that its specific concern was

not disruption or other conduct imperiling the integrity of the proceedings, but rather the

risk of trauma to the witness. See Tr. Ct. Op. at 28-30.11


11      In this regard, the trial court cited Tighe’s violation of the no-contact order, victim’s
testimony that his phone call “scared” and “shocked” her because she had not been aware
of Tighe’s release on bail, her contemporaneous fear that she was in danger, and Tighe’s
“position of trust as a friend of the family.” Tr. Ct. Op. at 29-30. None of these findings
suggest that the trial court considered whether they indicated a likelihood that Tighe’s
cross-examination of the victim would disrupt the trial proceedings months later, or that
the trial court even viewed the record through that lens.


                           [J-44-2019] [OAJC: Dougherty, J.] - 10
       The distinction between approaching the question as one involving threats to the

integrity of the trial and concerns for the infliction of extraordinary trauma on the victim is

not trivial, it is defining. In this regard, the remedies applied in each case reveal the

distinction: In none of the forfeiture authorities cited by the Plurality, nor in any I have

consulted, did the court order a forfeiture remedy limited to a particular witness. Rather,

where a defendant comports himself (in or out of court) in a fashion that raises questions

about his ability to adhere to courtroom rules and play his part in an orderly proceeding,

the remedy is either exclusion or the categorical denial of the right to self-representation

in favor of the retention or appointment of counsel to carry on the defendant’s defense.

Conversely, witness-specific limitations appear to have arisen only in cases like Craig and

Fields, where the issue revolves around how sharing a courtroom with the defendant or

enduring the defendant’s cross-examination will affect a witness. Thus, that the trial court

repeatedly alluded to its obligation to balance Tighe’s right to self-representation with

countervailing concerns for the traumatic effect of Tighe’s personal cross-examination on

the victim makes abundantly clear that the court framed the issue as a Craig/Fields

question, not one implicating forfeiture.

       To demonstrate otherwise, the Plurality relies heavily on the Commonwealth’s

characterizations of its objections rather than the trial court’s own contemporaneous and

post hoc explanations of its reasoning. This undermines the Plurality’s effort to find

anything in the trial court’s own commentary and stated reasoning that supports the

findings of fact necessary to find forfeiture. Compare OAJC at 3 (quoting Notes of

Testimony (“N.T.”), 6/4/2013, at 37-38) (Commonwealth: “[W]hen we talk about self-

representation, the question of forfeiture always arises.”) with N.T., 6/4/2013, at 39 (The




                          [J-44-2019] [OAJC: Dougherty, J.] - 11
court: “I find that in denying your right to cross-examine the complaining witnesses [for

purposes of the bail revocation hearing] it is important to this [c]ourt that I balance the

competing interest[s] here[:] your right to self-representation and the right of the state to

protect the complaining witness from emotional harm.”).

       In the most vivid example of this approach, the Plurality avers:

       As the record plainly shows, the trial court prohibited [Tighe] from personally
       cross-examining the victim at trial in response to the Commonwealth’s
       motion alleging appellant had forfeited the right to do so by his own pre-trial
       behavior. . . . [T]he court twice determined that issue in favor of the
       Commonwealth—on June 4, 2013, the court granted the Commonwealth’s
       forfeiture motion for purposes of the bail revocation hearing, and on July 3,
       2013, the trial court granted the Commonwealth’s forfeiture motion for
       purposes of trial based upon the same pre-trial behavior.

OAJC at 6 n.8 (emphasis in original).         But that the trial court twice granted the

Commonwealth’s motion does not mean it did so for any one among several reasons

ventured by the Commonwealth in advocating for the ruling.

       To the contrary, in support of its June 4, 2013 decision to bar cross-examination

of the victim in the bail revocation proceeding, the trial court cited concerns for witness

trauma. See N.T., 6/4/2013, at 39 (“I find that in denying your right to cross-examine the

complaining witness here today there is no prejudice to you because of the nature of the

proceedings, the nature of the alleged violation, and it is important to this [c]ourt that I

balance the competing interest[s] here[:] your right to self-representation and the right of

the state to protect the complaining witness from emotional harm.”). And in ruling upon

the cross-examination issue for purposes of trial a month later, the trial court once again

cited concerns for trauma, not disruption or the integrity of the proceedings:

       [F]or a number of reasons, I’m going to deny your request, sir, that you be
       allowed to cross examine [the victim]. And in particular, the court is
       concerned because there was a violation of the bail condition of no contact.
       That is something that does concern me, number one. Number two, the


                          [J-44-2019] [OAJC: Dougherty, J.] - 12
       age of the victim. And number three, it is alleged by the Commonwealth
       that because you were a friend of her parents, you stood in a position of
       trust with the minor child. So for those reasons, sir, in balancing your right
       to represent yourself pursuant to the Sixth Amendment of the constitution
       and also balancing the rights of the victim in this Case to not be subject to
       emotional harm or trauma during the proceedings, I’m going to deny your
       request that you cross[-]examine [the victim] . . . .

N.T., 7/3/2013, at 9-10. The trial court again reduced its reasoning to concerns for witness

trauma in its Pa.R.A.P. 1925(a) opinion, a context allowing for more careful reflection and

articulation than extemporaneous commentary in open court, which serves as the trial

court’s final word on the matter. See Tr. Ct. Op. at 30 (“In conclusion, this [c]ourt finds

that denying [Tighe] the right to personally cross-examine [the victim] was necessary to

protect her from additional and unnecessary ‘emotional trauma.’”).

       Similarly unavailing is the Plurality’s reliance upon the Commonwealth’s

Memorandum of Law on the subject, filed the day before the July 3, 2013 hearing, to

establish that the court accepted forfeiture as a basis for restricting Tighe from cross-

examining the witness at trial. The Plurality posits that, “[i]mplicit in the court’s statement

[on July 8, 2013, which alluded to the no-contact violation, the victim’s age, and Tighe’s

“position of trust” relative to the victim,] is that its ruling decided the Commonwealth’s

forfeiture motion alleging appellant had forfeited his right to cross-examine the victim at

trial by his willful pre-trial misconduct.” See OAJC at 7 n.9 (citing Commonwealth’s

Memorandum of Law, 7/2/2013, at 13-14).             However, the Plurality overlooks that

forfeiture, as such, was the third of three bases upon which the Commonwealth sought

to preclude Tighe’s cross-examination; the first two depended upon the victim-trauma

approach derived from Craig and Fields. Thus, even to call the Commonwealth’s motion

a “forfeiture motion” is question-begging. And the inference that the trial court relied upon




                          [J-44-2019] [OAJC: Dougherty, J.] - 13
this third theory rather than the Craig/Fields victim-trauma approach is serially belied by

the trial court’s own accounts of its reasoning for granting the Commonwealth’s motion.

       Notably, the Plurality eschews the very same caution that underlies its decision not

to analyze the questions as to which we granted review. In that connection, the Plurality

specifically observes that “this case is a poor vehicle to decide the [questions presented],

as there simply was no evidentiary showing with respect to [victim’s] emotional response

to direct questioning by appellant.” Id. at 19. But if the record does not suffice to sustain

that determination, despite the trial court’s frequent invocation of that concern, then

certainly it does not speak specifically to the risk that Tighe would disrupt or otherwise

threaten the integrity of the trial by cross-examining the victim, which the trial court never

addressed in those terms. If anything, the victim’s testimony that she felt threatened by

Tighe’s imprecations better supports the prospect of excess trauma than it does the

concern that Tighe would not conduct himself appropriately at trial.

       The liberties the Plurality takes in this case illustrate why the right-for-any-reason

doctrine has far more utility in resolving a direct appeal as of right than it does in an appeal

by allowance. Where a court cannot decline entirely to decide a given appeal, and it

perceives a clear legal basis for upholding the lower court’s judgment based upon

undisputed findings of record, it is better to affirm on that basis than to protract the matter

by reversing and remanding for the trial court to apply the correct analysis to reach the

same result.

       As a Court of last resort, however, our review typically is discretionary, and we may

decline to review a case entirely, or dismiss a case as improvidently granted, if we

determine that the questions we granted allowance of appeal to resolve are moot or




                          [J-44-2019] [OAJC: Dougherty, J.] - 14
otherwise not well-suited to facilitate our principal function of advancing the law. Indeed,

the Court’s decision not to review the issues as to which we granted review in this case

embodies this principle, and amounts to such a dismissal. When we dismiss a case as

improvidently granted, we leave the lower court’s ruling undisturbed without any

endorsement of that court’s reasoning, an outcome much the same for practical purposes

as affirming on an alternative basis.12 In this way, we can defer deciding an issue

prematurely, rather than resolving the case on an analytic basis as to which the lower

courts, the parties, and other interested individuals or entities have had no notice or

opportunity to advocate. The concern for judicial efficiency that animates the right-for-

any-reason doctrine is of limited relevance to a court of last resort exercising discretionary

jurisdiction; nothing is more efficient, nor more judicious, than dismissing an appeal as

improvidently granted when it becomes clear that it would be imprudent to decide it on

the record and advocacy presented.




12      Respectfully, the Plurality’s suggestion that its statement of disapproval in a
footnoted dictum will be treated by the lower courts as precedential, or even persuasive,
is neither required as a matter of law nor assured in practice. See OAJC at 23 n.23 (“O]ur
decision does not have the same practical effect as would a dismissal of the appeal as
improvidently granted , , , ,”); see also id. at 19 n.19 (noting disapproval of Superior
Court’s reasoning). Neither this Court nor the lower courts are bound by our commentary
when it is “not crucial to our determination.” In re L.J., 79 A.3d 1073, 1081 (Pa. 2013);
Maloney v. Valley Med. Facilities, 984 A.2d 478, 490 (Pa. 2009) (quoting N’Western Nat’l
Ins. Co. v. Maggio, 876 F.2d 320, 323 (7th Cir. 1992)) (“No court . . . is obliged to treat a
dictum of another court . . . as binding precedent.”). The Plurality’s conclusory footnote
clearly comprises dicta because it pertains to a legal question that has no ultimate bearing
upon its analysis. Cf. Commonwealth v. Romero, 183 A.3d 364, 400 n.18 (Pa. 2018)
(plurality) (“Of course, dicta often present risks of unforeseen complications and
unintended consequences, which is why reliance upon them to resolve those same
complications can be difficult to justify, if not ill-advised.”).



                          [J-44-2019] [OAJC: Dougherty, J.] - 15
       That we specify the questions as to which we grant review is not a mere courtesy.

It ensures transparency, informing the parties and the greater legal community of what

this Court intends to decide, granting all interested citizens—and especially the parties—

the opportunity to proceed in full awareness of what is at stake, which is nothing less than

the advancement of Pennsylvania law.13 The Plurality’s employment of the right-for-any-

reason doctrine disserves these goals by introducing a new common-law rule to

Pennsylvania, derived from a reading of non-binding foreign case law more expansive

than the issuing court, itself, suggested, despite the parties’ disclamation of any interest

in litigating for or against that rule of law, and without trial court fact-finding made with an

eye toward that rule’s factual predicates.14

       I agree with the Plurality that the record betrays an important void relative to the

questions we set out to answer. But precisely for that reason, I would dismiss this case

as improvidently granted. Accordingly, I respectfully disagree with the Plurality’s election

to affirm the lower court’s decision on an alternative basis.


13     For this reason, the Plurality’s casual dismissal of the terms employed by Tighe in
seeking this Court’s review, which this Court adopted rather than reworded, is troubling.
See OAJC at 23 n.23 (“Although we accepted the questions as phrased by appellant—
which included his self-serving representations that he neither waived nor forfeited his
right—we are not obligated to accept those representations as true. . . .”). It is well within
this Court’s discretion to reword questions when necessary to cleanse them of misleading
or tendentious assertions. Moreover, for all the foregoing reasons, the representations
that the Plurality suggests are not true in fact accurately describes the proceedings below.
14     By declining to incorporate limiting principles like those that carefully circumscribed
the Carson court’s ruling, the Plurality opens the door to courts in future cases deeming
defendants’ important right to self-representation forfeit for individual out-of-court
incidents that do not necessarily satisfy the limiting factors enumerated in Carson or
comport with the caution we applied in the related Confrontation Clause context in Abu-
Jamal, supra. The potential for unintended consequences is precisely why we hesitate
to declare new rules without the benefit of focused advocacy highlighting the benefits and
risks of a given rule.


                          [J-44-2019] [OAJC: Dougherty, J.] - 16
