J-S45012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAMON JONES

                            Appellant                  No. 520 EDA 2013


        Appeal from the Judgment of Sentence of December 14, 2012
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0907121-1982


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

CONCURRING MEMORANDUM BY WECHT, J.:              FILED NOVEMBER 24, 2014

       The learned Majority succinctly summarizes the core assertions raised

by Damon Jones in his first issue in this direct appeal as relating “to the

failure to timely conduct capital sentencing and his ultimate resentencing to

life imprisonment.” Maj. Mem. at 5. The Majority then proceeds to set forth

an excellent discussion of the history of the constitutional rights to a trial by

jury and a speedy trial, including the ultimate extension of those rights to

capital resentencing upon the grant of post-conviction relief.         Once the

Majority concludes that capital resentencing falls within the ambit of those

constitutional rights, the Majority proceeds, pursuant to Barker v. Wingo,

407 U.S. 514 (1972), to analyze Jones’ claim on the merits, and to conclude
____________________________________________


*
       Former Justice specially assigned to the Superior Court.
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that he is not entitled to relief.        However, what becomes lost within the

Majority’s analysis is the fact that the Commonwealth elected not to pursue

the death penalty against Jones on resentencing, a decision which resulted

in Jones being sentenced to life imprisonment.           Because Jones was not

subjected to a capital resentencing proceeding, a substantial amount of the

Majority’s discussion unfortunately amounts to non-binding dicta. As such, I

can only join in the result reached by the Majority in its resolution of Jones’

first issue.1

       The Majority accurately notes that “[n]either the United States

Supreme Court nor the Pennsylvania Supreme Court have held that the right

to a speedy trial applies to sentencing, let alone resentencing following the

award of post-conviction relief.”        Maj. Mem. at 11.   Although the Majority

points out that, in Commonwealth v. Greer, 554 A.2d 980 (Pa. Super.

1989), this Court held (albeit without meaningful discussion) that a criminal

defendant may have a right to a speedy resentencing upon remand from the

grant of relief on direct appeal, see Maj. Mem. at 11, the Majority endeavors

in this appeal only to resolve the question of whether a defendant’s speedy

trial right extends to capital resentencing after being granted post-conviction

relief. The Majority does not attempt to resolve the question of whether the

constitutional right extends to non-capital cases.

____________________________________________


1
      I join the Majority’s resolution of Jones’ second issue. See Maj. Mem.
at 27-28.



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      In essence, the Majority answers a question that, regardless of the

outcome, has no bearing upon Jones. The Court ultimately concludes that,

because the Supreme Court held in Ring v. Arizona, 536 U.S. 584 (2002),

that a capital sentencing proceeding is part and parcel of a jury trial for

constitutional purposes, such a proceeding also is subject to the speedy trial

mandate. Maj. Mem. at 16-17. But, again, Jones was not subjected to a

capital resentencing. He was sentenced to a mandatory life sentence, as if

this case was any other non-capital first-degree murder case. Thus, while

the Majority may be correct that the right to a speedy trial applies to capital

resentencing proceedings held following the grant of post-conviction relief,

that conclusion has no bearing upon the instant case.

      Admittedly, the Majority appears to have good reason for focusing its

attention upon capital resentencing.        The right to a speedy capital

resentencing was the basis for Jones’ motion before the sentencing court, in

which Jones sought to have the court preclude the Commonwealth from

seeking the death penalty. Further, that motion is the basis upon which this

appeal, and much of Jones’ arguments, rest. However, those issues became

moot the moment that the Commonwealth elected not to pursue a death

sentence.     Accordingly, any discussion of issues relating to capital

sentencing, including the Majority’s subsequent Barker analysis based upon

the same, is dicta.   See Commonwealth v. Lee, 935 A.2d 865, 867 n.4

(Pa. 2007) (defining dicta as “[a] judicial comment made during the course




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of delivering a judicial opinion, but one that is unnecessary to the decision in

the case and therefore not precedential.”) (citation omitted).

      The Majority next proceeds to consider whether Rule 600 of the

Pennsylvania Rules of Criminal Procedure applies to capital resentencing,

and whether that rule could provide Jones with an independent basis for

relief. See Maj. Mem. at 21. After considering the language and purposes

underlying the rule, the Majority concludes that Rule 600 does not apply to

capital resentencing. Id. at 27. However, for the same reasons delineated

above, such a discussion amounts to dicta because Jones was not subjected

to a capital resentencing.   Thus, we should not consider the issue in the

manner in which it is analyzed by the Majority.

      Nonetheless, I am compelled to point out the incongruity that

necessarily results from the Majority’s Rule 600 analysis.       Rule 600 was

“adopted . . . to protect defendants’ constitutional rights to a speedy trial

under the Sixth Amendment [to] the United States Constitution and Article I,

Section 9 of the Pennsylvania Constitution.” Commonwealth v. Bradford,

46 A.3d 693, 700 (Pa. 2012). More importantly, the rule “represents [the

Pennsylvania Supreme Court’s] determination that the ‘balancing test’

announced in Barker provides only the minimum standards guaranteed by

the Sixth and Fourteenth Amendments, and that such minimum standards

are not adequate to provide Pennsylvania criminal defendants the protection

guaranteed by the constitution of the Commonwealth.” Commonwealth v.

Whitaker, 359 A.2d 174, 176 (Pa. 1976) (internal quotation marks

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omitted). Thus, it is clear that, in Pennsylvania, Rule 600 was adopted to

provide more protections that those provided by the United States

Constitution.

      As I understand the Majority’s analysis, pursuant to Ring, capital

resentencing procedures are subject to the Sixth Amendment’s speedy trial

mandate. However, pursuant to the Majority’s analysis, a capital defendant

under identical circumstances could not seek similar relief under Rule 600, a

provision undeniably enacted to provide greater protections than the

Federal Constitution. Although the Majority presents a somewhat persuasive

discussion regarding Rule 600’s application in this context, the Majority does

not address this glaring, and problematic, incongruity.     For this reason, I

cannot join the Majority’s Rule 600 analysis.

      Based upon my reading of Jones’ brief, it is unclear whether his

arguments are limited to capital resentencing cases, or whether he intended

his arguments to extend to all resentencing proceedings.       Moreover, it is

unclear whether an argument on the latter point was preserved first before

the trial court. Regardless, what is clear is that the discussion set forth by

the Majority has no bearing upon Jones, who was not subjected to a capital

resentencing proceeding.    Ultimately, I join in the result reached by the

Majority because Jones has proffered no basis in his brief, or before the trial

court, that would entitle him to relief in the form of either dismissal of his

duly imposed convictions or his life sentence.      However, in doing so, I




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cannot join in the Majority’s analysis of Jones’ first issue in this appeal

because it is almost entirely non-binding dicta.

      Justice Fitzgerald Concurs in the Result.




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