J-A12028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
             v.                           :
                                          :
                                          :
STEPHEN TERREL RUSSELL                    :
                                          :
                   Appellant              :   No. 1688 WDA 2016

                Appeal from the Order Entered October 6, 2016
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0001497-2016

BEFORE: OLSON, J., SOLANO, J. and, RANSOM, J.

CONCURRING STATEMENT BY SOLANO, J.:                 FILED AUGUST 25, 2017

      In Commonwealth v. Ricker, 120 A.3d 349 (Pa. Super. 2015), pet.

for allowance of appeal granted, 135 A.3d 175 (Pa. Apr. 18, 2016), and

Commonwealth v. McClelland, ___ A.3d ___, 2017 WL 2312083 (Pa.

Super. May 26, 2017), this Court resolved the substantive issues raised by

Appellant under the Confrontation and Due Process Clauses. As a panel of

this Court, we are bound by those decisions, and I therefore conclude that

Appellant is not entitled to relief on those substantive issues.

      I disagree, however, with the Majority’s conclusion that we lack

jurisdiction to hear these appeals. In Ricker and McClelland, we held that

we had jurisdiction to hear issues substantially identical to those raised by

Appellant under the “exceptional circumstances” theory advanced in those

decisions.    In explaining why we had jurisdiction, we said, “Not only is

Appellant’s claim capable of evading review, it presents an important
J-A12028-17


constitutional question regarding whether a powerful state governmental

entity violates federal and state constitutional principles in allowing a

defendant to be restrained of his liberty and bound over for trial based solely

on hearsay evidence.” Ricker, 120 A.3d at 354 (addressing Confrontation

Clause challenge); see McClelland, 2017 WL 2312083, at *1 (“the same

reasoning applies” to a Due Process challenge).

      The Majority holds, however, that although we had jurisdiction in

Ricker and McClelland, we lack jurisdiction in these cases because

“extraordinary circumstances” no longer are present here.        The Majority

reasons that because Ricker and McClelland have now decided the

“important constitutional questions” that gave rise to the extraordinary

circumstances in those cases, anything we say about those issues here is

redundant. Maj. Memo. at 7. But for this defendant faced with these same

constitutional questions, the matters raised here are no less important and

the circumstances are no less extraordinary. Nothing in Ricker suggested

that its jurisdictional holding applied to just that one case.       Any such

limitation would be both peculiar and suspect, since it would afford a special,

one-time-only ticket to the courthouse door to only that litigant who was

swiftest to present the issue, and then bar all other comers.      We do not

create jurisdictional doctrine in that way.    I therefore disagree with the

decision to quash these appeals, although I agree that on the merits no

relief is due.


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