Com. v. Finnecy, J. (dissenting memorandum)
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J-S05022-19 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA Appellant v. JAMES PAUL FINNECY Appellee : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 998 WDA 2018 Appeal from the PCRA Order Entered June 19, 2018 in the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000498-2013 CP-61-CR-0000688-2009 BEFORE: PANELLA, P.J., NICHOLS, J. and STRASSBURGER, J.* DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED: April 17, 2019 Because I believe the Majority errs in holding that Appellant has a “history of present or past violent behavior,” 61 Pa.C.S. § 4503(1), based upon a single conviction for a non-enumerated crime of violence, I respectfully dissent. The PCRA court held, and the Majority affirms, that Appellant is not eligible for RRRI because he has a “history of present or past violent behavior” based upon one prior conviction for resisting arrest. I acknowledge that on Finnecy’s direct appeal, I agreed with the Majority that Appellant’s conviction for resisting arrest rendered him ineligible for the RRRI program. See Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016) *Retired Senior Judge assigned to the Superior Court. J-S05022-19 (Strassburger, J., concurring). However, since then, our Supreme Court decided Commonwealth v. Cullen-Doyle, 164 A.3d 1239, 1244 (Pa. 2017) (holding that a “single, present conviction for a violent crime does not constitute a history of violent behavior”). I am not convinced that the holding on Finnercy’s direct appeal has the same vitality after Cullen-Doyle. I still agree that resisting arrest is a crime of violence within the meaning of the RRRI statute, and nothing in CullenDoyle affects that analysis. See Finnercy, 135 A.3d at 1037 (holding, on Finnecy’s direct appeal, that the crime of resisting arrest is a crime of violence). But based upon Cullen-Doyle, I question whether one conviction for resisting arrest constitutes a history of present or past violent behavior within the meaning of the RRRI statute. The specific holding of Cullen-Doyle - that a single present conviction does not equate to a history of violent behavior - does not govern the outcome in the instant case. Cullen-Doyle, 164 A.3d at 1244. Unlike Cullen-Doyle, the crime of violence here is not the present crime for which Appellant is being sentenced (or more accurately, re-sentenced). But I am persuaded by the reasoning in Cullen-Doyle that the language of the RRRI statute is ambiguous; that the word history refers to “an established record of or pattern of past or present violent behavior;” that the “Legislature sought to offer greater reform opportunities for first-time offenders than for repeat offenders;” that construing the statute broadly would disqualify too many -2- J-S05022-19 individuals based upon a mere “single instance of violence;” that all crimes of violence should not be per se disqualifying; and that the rule of lenity means the statute should be construed in favor of those seeking admission to the program. Id. at 1241-44. Accordingly, I would hold that when a defendant has a single prior conviction for a non-enumerated crime of violence, that single prior conviction should not, by itself, disqualify the defendant from participating in the RRRI program. Thus, in the instant case, I would hold that Appellant’s sentence is illegal, and the PCRA court erred by determining that Appellant did not qualify for RRRI. -3-
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