Argued September 9, 2014
Appeal from the Judgment of Superior Court entered on July 31, 2013 at No. 505 EDA 2012 affirming the judgment of sentence entered on January 27, 2012 in the Court of Common Pleas, Philadelphia County, Criminal Division at Nos. CP-51-CR-0006396-2009 and CP-51-CR-0009692-2009. Appeal allowed January 8, 2014 at 455 EAL 2013. Trial Court Judge: Sandy L.V. Byrd, Judge. Intermediate Court Judges: Susan Peikes Gantman, Judge, Cheryl Lynn Allen, Judge, William Platt, Judge.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. Former Justice McCaffery did not participate in the decision of this case. Mr. Chief Justice Castille, Messrs. Justice Saylor and Baer and Madame Justice Todd join the per curiam affirmance based on the intermediate court's analysis. Mr. Justice Eakin files a dissenting statement in which Mr. Justice Stevens joins. MR. JUSTICE EAKIN.
AND NOW, this 30th day of December, 2014, the Order of the Superior Court is AFFIRMED based on the reasoning set forth in its opinion addressing the issue on which this Court granted allowance of appeal, namely, "
Does 42 Pa.C.S.A. Section 9714(a)(2) require prior sentencing as a second strike offender to invoke the third-strike sentencing provision?" Commonwealth v. Armstrong, 83 A.3d 411 (Pa. 2014); see Commonwealth v. Armstrong, 2013 PA Super 220, 74 A.3d 228, 239-42 (Pa. Super. 2013). We express no opinion concerning the Superior Court's treatment of any other issue.
Former Justice McCaffery did not participate in the decision of this case.
Mr. Chief Justice Castille, Messrs. Justice Saylor and Baer and Madame Justice Todd join the per curiam affirmance based on the intermediate court's analysis.
Mr. Justice Eakin files a dissenting statement in which Mr. Justice Stevens joins.
MR. JUSTICE EAKIN
The decision to expressly adopt a portion of the Superior Court's opinion as binding precedent of this Court is not our common practice, and in my judgment is best reserved for areas less in controversy than this. See, e.g., Commonwealth v. Greene, 81 A.3d 829, 829-30 (Pa. 2013) (Castille, C.J., dissenting statement) (noting this Court's reluctance to adopt lower court's opinion by per curiam order); see also id., at 830 (" 'When this Court affirms a judgment on the opinion of a lower [c]ourt, it of course adopts the lower [c]ourt's opinion as its own and is thus responsible for its reasoning, conclusions, and phraseology as much as if it had come from the collective pens of the majority of the Supreme Court.'" (quoting Satovich v. Lee, 385 Pa. 133, 122 A.2d 212, 215 (Pa. 1956) (Musmanno, J., dissenting))).
Respectfully, the reasoning of the Superior Court's opinion here is largely the acknowledgement of the " recidivist theory" from case law which that court is constrained to follow. However, this precludes any meaningful discussion of the distinction arising in the present case, which is not addressed in the cited cases. In so doing, the Superior Court's decision must be read as implementing a new rule of law that, where a defendant has not been previously sentenced under § 9714(a), he is not eligible to receive a sentence under § 9714(b), regardless of the empirical applicability of that section. See Commonwealth v. Armstrong, 2013 PA Super 220, 74 A.3d 228, 239-42 (Pa. Super. 2013). The Superior Court relied primarily on Shiffler, which involved a sequence of events different from those at hand; while I did not participate in that decision, I do not read it as creating such a broad notion, i.e., that the failure to sentence under § 9714(a) forever precludes sentencing under § 9714(b).
Section 9714 is a straightforward statute, though its scheme has been muddled and made intricate (and by no means settled) by case law in which this Court has not been unanimous. While distinguishing the instant matter from cited precedent, the Superior Court applied the " recidivist theory," thereby approving another circumstance where § 9714 may not be ...