Com. v. Mitchell, D.

J-A12027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEMOND DUPREE MITCHELL :
:
Appellant : No. 1687 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-0001500-2016
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-A12027-17
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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