Petition for Allowance of Appeal from the Order of the Superior Court entered October 8, 2010 at No. 642 WDA 2009, reversing the Judgment of Sentence of the Court of Common Pleas of Erie County entered March 19, 2009 at No. CP-25-CR-0001372-2008 and remanding.
AND NOW, this 3rd day of August, 2011, the Petition for Allowance of Appeal is hereby GRANTED, the order of the Superior Court is VACATED, and this case REMANDED to that court for consideration of the other issues raised by petitioner before the Superior Court. Although the best evidence was available, the trial court followed proper procedure pursuant to Pa.R.E. 1002 by not allowing the introduction of the videotape, due to its containing material prohibited by Bruton v. United States, 391 U.S. 123 (1968). Jurisdiction relinquished.
Mr. Justice Saylor files a Dissenting Statement.
IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, Petitioner v. LIONEL HAMER, III, Respondent
Petition for Allowance of Appeal from the Order of the Superior Court entered October 8, 2010, at No. 642 WDA 2009, reversing the Judgment of Sentence of the Court of Common Pleas of Erie County entered March 19, 2009 at No. CP-25-CR- 0001372-2008 and remanding.
The allocatur stage is normally reserved for making the threshold determination of whether to grant discretionary review. See Supreme Court IOP §5C. Here, however, the majority undertakes merits review at the allocatur stage and enters an order dispositive of factual and legal matters in this case. It does so without the benefit of briefs or, at the very least, an answer from the respondent, and overlooks a substantial defect in the Petition for Allowance of Appeal. See Pa.R.A.P. 1115(a)(3) (requiring a statement of the questions presented for review).
I maintain the concern that the Court should exercise greater restraint at the discretionary review stage. Cf. Progressive N. Ins. Co. v. Henry, ___ Pa. ___, 4 A.3d 153 (Pa. 2010) (Saylor, J., dissenting); County of Berks v. Int'l Bhd. of Teamsters Local Union No. 429, 680 Pa. 128, 129-31, 963 A.2d 1272, 1272-73 (2009) (Saylor, J., dissenting). While the sentiment appears to prevail that this type of error-review case does not warrant full briefing and ordinary consideration by this Court on the appeal docket, I remain of the view that shortcutting such process is not a tenable alternative in the absence of concretely established facts and clearly and directly applicable law. Cf. id; Supreme Court IOP §3(B)(5).
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