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filed: February 10, 1984.


No. 140 Harrisburg 1982, Appeal from the PCHA Order of the Court of Common Pleas of Lebanon County, Criminal Division at No. 261-1978.


William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellant.

Paul W. Kilgore, Lebanon, for appellee.

McEwen, Johnson and Popovich, JJ. Johnson, J., files a concurring statement.

Author: Popovich

[ 325 Pa. Super. Page 229]

This is an appeal by the Commonwealth from the Order of the Court of Common Pleas of Lebanon County (per

[ 325 Pa. Super. Page 230]

Judge Walter) awarding the appellee, William A. Kelliher, a new trial after a hearing conducted pursuant to the Post-Conviction Hearing Act (PCHA). 19 P.S. § 1180-1 et seq., as amended; reenacted as 42 Pa.C.S.A. §§ 9541-9551. We reverse.

Following a joint trial in which the appellee and a John Krall were found guilty of burglary, conspiracy and receiving stolen property, post-trial motions raised issues of sufficiency of the evidence and alleged trial errors, one of which concerned the permissibility of the Commonwealth to cross-examine defense witness Bonnie Sweigart as to her placement in the Accelerated Rehabilitative Disposition (ARD) program. Thereafter, the motions were denied, sentence was imposed and an appeal, raising all of the issues presented to the post-trial motions court, was perfected. A panel of this Court, consisting of Judges Spaeth, Cavanaugh and O'Kicki, affirmed the judgment of sentence in a per curiam opinion.*fn1 Commonwealth v. Kelliher, 287 Pa. Super. 582, 428 A.2d 247 (1980). Petition for allowance of appeal was denied by the Pennsylvania Supreme Court on January 21, 1981 [No. 512 E.D.Misc. Docket 1980].

Prior to the Supreme Court's denial of appellee's request for allocatur, counsel for the appellee filed a "Petition For Post Conviction Relief" on January 7, 1981. Therein it was alleged that the appellee was "eligible for relief because of the use by the state of perjured testimony of Terry Deck which ha[d] recently come to the attention of Petitioner." After a hearing, the PCHA court denied appellee's petition on the ground that he failed to prove that the recantation was true. An appeal was perfected from the September 2, 1981 PCHA Order and docketed in this Court on October 5, 1981 at No. 2560 Philadelphia, 1981. As of the date of this Opinion, the case is still pending.

[ 325 Pa. Super. Page 231]

Notwithstanding the pendency of the prior appeal, appellee filed a second PCHA petition and, as a result of a hearing conducted thereon, was awarded a new trial. In doing so, the PCHA court made the following relevant findings of fact:

16. On June 1, 1981, petitioner filed his second petition under the Post Conviction Hearing Act predicated on the reason a different Superior Court panel*fn* had awarded co-defendant John Krall a new trial, finding reversible error in what Kelliher's panel determined harmless: improper impeachment testimony elicited under cross-examination of a witness' placement in the A.R.D. program (as if it were a conviction).

17. . . .

18. On August 7, 1981, the Court entered its Order continuing th[e evidentiary] hearing and order pending final resolution of the Commonwealth's petition for reargument of the Superior Court's award of a new trial for John R. Krall.

19. The Superior Court of Pennsylvania denied the Commonwealth's request for reargument.

20. The Petition for Allowance of Appeal with the Supreme Court of Pennsylvania in the companion Krall case was denied December 22, 1981.

21. The Krall case was remanded to the Court of Common Pleas January 5, 1982, for a new trial.

The PCHA court went on to discuss that the decision denying Kelliher's initial appeal was in the nature of a "Memorandum Opinion," vis-a-vis the ruling granting co-defendant Krall's request for a new trial was an authored "Opinion." He found that this distinction, read in light of the succeeding language preceding all notices of cases decided in memorandum form by the Superior Court and listed as such in the Official and Atlantic Reporter Systems, rendered the "Memorandum Opinion" issued in Kelliher's case to be of no force or effect. The notice consists of the following language:

[ 325 Pa. Super. Page 232]


Notice to the Bar

The Superior Court of Pennsylvania, commencing with cases heard or submitted during the March 1979 session, adopted a practice whereby some cases are affirmed per curiam, without a published opinion. However, a memorandum opinion has been prepared and filed by the Superior Court in most of these cases and copies of the memorandum opinion have been forwarded to the chief counsel for the parties and to the lower court. These memorandum opinions contain the rationale of the Superior Court in reaching its decision. Copies of these memorandum opinions may be procured by members of the Bar or any member of the public at the prothonotary's office of the Superior Court in the district in which the case arose. These memorandum opinions are not to be considered as precedent and cannot be cited for any purpose.

Immediately after citing the aforesaid, the PCHA court ended its discussion by observing, "In that fashion we arrive at the conclusion the precedent has been fixed for the issue in question by the decision and opinion in Commonwealth v. Krall. Viewed in that light the trial court for Kelliher committed reversible error in permitting witness impeachment using that witness' enrollment in an A.R.D. program." (PCHA court Opinion at 6) From the Order granting Kelliher a new trial, the Commonwealth instituted the instant appeal.

Although we could dispose of the present appeal under the caption of a "Memorandum Opinion" by holding that the issue raised by the appellee in his second PCHA petition has either been "finally litigated" or "waived," see 42 Pa.C.S.A. § 9544, we feel compelled to respond in the form of an authored opinion to:

1) dispel the misconception engendered by the PCHA court regarding the efficacy of this Court's "Memorandum Opinions;" and

[ 325 Pa. Super. Page 2332]

) lay to rest once and for all the erroneous belief that under the facts of this case Kelliher is ...

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