author: PER CURIAM.

text:
    107 A.3d 709
    DNB FIRST, N.A., Respondent v. William B. FRETZ Jr., Petitioner. DNB First, N.A., Respondent v. William B. Fretz Jr., Petitioner.
    Nos. 375 MAL 2014, 376 MAL 2014.
    Supreme Court of Pennsylvania.
    Dec. 3, 2014.
   ORDER

PER CURIAM.

AND NOW, this 3rd day of December, 2014, the Petition for Allowance of Appeal is GRANTED. The issue, as stated by Petitioner, is:

Whether the Superior Court of Pennsylvania erred in deciding under Pa.R.C.P. 2959(c) that Petitioner waived four of the six meritorious defenses put forth on appeal to open/ strike a confessed judgment, when those defenses were fleshed out in discovery and included in a court sanctioned supplemental brief?


source: Caselaw Access Project

author: Justice BAER. Justice SAYLOR, Justice TODD,

license: Public Domain

text:
    107 A.3d 709
    COMMONWEALTH of Pennsylvania, Appellant v. Todd ALLEN, Appellee.
    Supreme Court of Pennsylvania.
    Argued Sept. 9, 2014.
    Decided Dec. 29, 2014.

      Hugh J. Burns, Jr., Philadelphia, Kristin Malee DeYoung, Philadelphia District Attorney’s Office, Jonathan Michael Levy, Office of the District Attorney of Phila. County, for Commonwealth of Pennsylvania.
    Jonathan Mark Frisby, JMF Law, for Todd Allen.
    CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
   OPINION

Justice BAER.

Nearly eight years after criminal charges against him were dismissed, Todd Allen (Appellee) moved for the return of property seized from the vehicle he was driving at the time of his arrest pursuant to Rule 588 of the Pennsylvania Rules of Criminal Procedure. The trial court, applying Commonwealth v. Setzer, 258 Pa.Super. 236, 392 A.2d 772 (1978), and Commonwealth v. One 1990 Dodge Ram Van, 751 A.2d 1235 (Pa.Cmwlth.2000), found that Appellee’s claim was waived because it had not been raised before the trial court that had jurisdiction over the criminal case against him. Although on appeal the Commonwealth Court affirmed, it declined to follow Setzer, overruled One 1990 Dodge Ram Van, applied a six-year statute of limitations to return motions filed pursuant to Rule 588, and held that Appellee’s motion was untimely because it was filed over six years after the charges against him were dismissed. On the Commonwealth’s appeal to this Court, we are persuaded that the Commonwealth Court erred by applying a statute of limitations analysis, and that the trial court was correct in applying the waiver analysis of Setzer and One 1990 Dodge Ram Van. We therefore hold that because Appellee had a prior opportunity to move for the return of property during the pendency of the criminal charges against him, his failure to do so resulted in waiver of this issue. This holding amounts to a rejection of the entirety of the Commonwealth Court’s analysis, but an affirmance of the denial of relief to Appellee.

On January 10, 2002, Appellee was arrested during a traffic stop for driving a stolen vehicle and related offenses. During the vehicle search that followed, the police seized $1060.00 in cash (the Property). On February 15, 2002, Appellee was held for trial on charges of theft by receiving stolen property, unauthorized use of an automobile, and criminal conspiracy. The Commonwealth, however, withdrew the charges against him by nolle prosequi, and Appellee’s case was disposed of on November 8, 2002.

Over seven years later, on July 22, 2010, Appellee filed a petition for return of the Property pursuant to Rule 588. The Commonwealth moved to dismiss on March 9, 2011, asserting that Appellee had waived his right to seek return of the Property by not moving for its return upon the final disposition of his criminal case while the trial court retained jurisdiction. The Commonwealth relied on Setzer for support.

In Setzer, the appellant was arrested and charged with several criminal offenses and convicted following a non-jury trial. 392 A.2d at 772-73. Nearly two years after his conviction, he filed a petition seeking the return of $77.00 that had been confiscated from him during his arrest. Id. at 773. On appeal from the trial court’s denial of this petition, the Superi- or Court affirmed, applying a waiver analysis to hold that although the predecessor to Rule 588 did not specify when a petition for return of property must be filed, it could have been raised either within thirty days of trial in conjunction with post-verdict motions or -within thirty days of sentencing in conjunction with post-sentence motions. Id. at 773 n. 4. According to the Superior Court, by failing to raise his entitlement to the return of property at trial or sentencing, when it was cognizable and the trial court had jurisdiction, the Setzer appellant had waived his right to raise the issue. Id. (“[W]e find it clear that practical considerations dictate that this issue be deemed waived when, as in the instant case, it is not raised until almost two years after disposition of the charges which gave rise to the confiscation of property.”); Commonwealth v. Romberger, 474 Pa. 190, 378 A.2d 283, 286 (1977) (“It is a fundamental doctrine in this jurisdiction that where an issue is cognizable in a given proceeding and is not raised it is waived and will not be considered on a review of that proceeding.”). The Commonwealth Court has likewise previously applied a waiver analysis in the same circumstances. One 1990 Dodge Ram Van, 751 A.2d at 1237 (holding the appellant waived the issue of return of property by failing to raise it following trial or sentencing for the underlying crimes).

The trial court in this case agreed with the Commonwealth and followed Setzer and One 1990 Dodge Ram Van to deny Appellee’s petition on April 28, 2011. Appellee appealed to the Commonwealth Court, which affirmed on alternate grounds in an en banc published decision. Commonwealth v. Allen, 59 A.3d 677 (Pa.Cmwlth.2012) (en banc). Noting that Superior Court decisions are not binding on it, id. at 679 (citing Muntz v. Dep’t of Transp., 157 Pa.Cmwlth. 514, 630 A.2d 524, 525 (1993)), the Commonwealth Court declined to follow Setzer and overruled its decision in One 1990 Dodge Ram Van premised on its view that civil forfeiture and petitions for return of property are civil proceedings, and therefore independent of any underlying criminal prosecutions. Id. at 679 (citing Commonwealth v. Perez, 941 A.2d 778, 780 (Pa.Cmwlth.2008) (noting that civil forfeitures “are the in rem consequence for wrongdoing prescribed by statute” and that property is not forfeited “as a result of the criminal conviction, but through a separate proceeding, civil in form but quasi-criminal in nature.... ”)).

The Commonwealth Court reasoned that the progress of an ancillary criminal proceeding may be irrelevant to either a forfeiture petition filed by the Commonwealth or a motion for return of property filed by a person entitled to lawful possession of the property, Allen, 59 A.3d at 679-80, noting there may be a civil forfeiture proceeding where no criminal charges were filed against the person from whom the property was seized. Id. at 680. Additionally, according to the Commonwealth Court, if the property was owned by a third-party uninvolved in the underlying criminal proceeding, it would be awkward to require that third-party to intervene in that criminal proceeding to seek the return of property via post-trial motions or at sentencing pursuant to the procedure endorsed in Setzer. Id. at 680 (“There is no precedent for such an awkward procedure because it makes no sense.”). The court failed to acknowledge that this case involved neither a return motion filed in answer to a forfeiture petition nor property that was owned by someone other than the accused in the underlying criminal proceeding, rendering its musings hypothetical and unnecessary for disposition of the matter before it.

Because post-trial motions must be filed within thirty days of the verdict, the Commonwealth Court characterized Setzer as imposing a thirty-day “statute of limitations” on petitions for return of property, which it held was not supported by Rule 588. In this regard, the Commonwealth Court evidently failed to discern that Setzer was based on a waiver analysis, rather than a statute of limitations analysis. Instead, construing its task as determining the applicable statute of limitations, the court examined the Controlled Substances Forfeiture Act, 42 Pa.C.S. § 6801(c), which requires the Commonwealth to institute proceedings for the forfeiture of seized property “forthwith,” and 42 Pa.C.S. § 5524(5), which imposes a two-year statute of limitations for commencement of forfeiture proceedings. Premised on these two provisions, the Commonwealth Court posited that when the Commonwealth failed to move for forfeiture within two years of a warrantless seizure, the property in question should be returned to the person from whom it was seized. Allen, 59 A.3d at 680. However, determining that the question of whether the Commonwealth complied with these requirements was not directly before it, the Commonwealth Court instead looked elsewhere for a potentially pertinent statute of limitations.

Examining the Judicial Code, the Commonwealth Court considered and rejected the two-year limitation period for “[a]n action for taking, detaining or injuring personal property, including actions for specific recovery thereof,” 42 Pa.C.S. § 5524(3), concluding that this provision was inapplicable for two reasons: first, because it has generally been applied in tort actions commenced by complaint; and, second, because a petition for return of property is a “proceeding,” not an “action.” See 42 Pa.C.S. § 102 (providing that “proceeding” includes “every declaration, petition or other application which may be made to a court under law ..., but the term does not include an action or an appeal.”).

Consequently, having determined that its task was to identify an applicable statute of limitations, the Commonwealth Court concluded there was no specific limitation period established by rule or law for the filing of a motion for return of property. Thus, to fill the void, the court held the residual six-year limitations period of Section 5527(b) was applicable, 42 Pa.C.S. § 5527(b), and began to run at “the conclusion of the criminal case in the trial court, whether by conviction, acquittal or withdrawal of the charges; at the conclusion of any post-conviction proceedings or appeals; or at the conclusion of any collateral proceedings in federal court.” Allen, 59 A.3d at 681. Because Appellee filed his petition over six years after his criminal case was concluded (by withdrawal of the charges), the Commonwealth Court held that it was untimely, and affirmed under the statute of limitations analysis the trial court’s dismissal of the petition.

We granted the Commonwealth’s allowance of appeal to determine whether a criminal defendant has an obligation to file a petition for return of property prior to the completion of proceedings before the trial court, or, as the Commonwealth Court held, may wait six years from the completion of all criminal proceedings, including collateral attacks, to file a stand-alone motion. This issue is purely a question of law; accordingly, our standard of review is de novo, and our scope of review is plenary. Ash v. Cont’l Ins. Co., 593 Pa. 523, 932 A.2d 877, 879 (2007) (citing Swords v. Harleysville Ins. Cos., 584 Pa. 382, 883 A.2d 562, 567 (2005)).

The Commonwealth, as appellant, advances an argument premised on the waiver analysis established in Setzer, asserting that any stand-alone petition for return of property filed by a party to a criminal proceeding, which could have been raised in that criminal proceeding but was not, is waived. Setzer, 392 A.2d at 773; One 1990 Dodge Ram Van, 751 A.2d at 1237. Focusing on the principles of Setzer waiver, the Commonwealth relies on the well-established legal proposition that an issue that is cognizable in a given proceeding and is not raised therein is waived, and will not be considered on review of that proceeding. See Setzer, 392 A.2d at 773 (citing Romberger, 378 A.2d at 286).

The Commonwealth argues that this rule of waiver applies only to the parties in a criminal proceeding involving the subject property. According to the Commonwealth, Appellee, who was a party to the criminal case, waived his claim to the Property by failing to seek its return during the course of the criminal proceeding or within thirty days of the trial court’s order dismissing the charges against him.

In furtherance of this argument, the Commonwealth relies on Rule 588(A), which provides that return motions must be filed “in the court of common pleas for the judicial district in which the property was seized,” and Rule 588(C), which permits a petition for the return of property to be joined in the criminal proceeding with a motion to suppress. Thus, the Commonwealth asserts that such motions are timely when they are filed while the trial court retains jurisdiction over the criminal proceeding, or when they are responsive to a forfeiture petition filed by the Commonwealth.

The Commonwealth Court’s concern for third-party property owners was not, according to the Commonwealth, implicated in this case. Nevertheless, to address a case in that procedural posture, the Commonwealth asserts that under the waiver rationale of Setzer, if seized property is owned by someone other than a criminal defendant, then waiver would not bar a stand-alone return motion filed independently of the criminal proceeding, because that party would not have had a prior opportunity to file the return motion and waiver would not apply.

In rejecting the Commonwealth Court’s search for an applicable statute of limitations, the Commonwealth argues that the rule of waiver is simply not a statute of limitations. See Allen, 59 A.3d at 680 (“Having rejected Setzer's 30-day statute of limitations, we must decide the appropriate deadline.”). Rather, the pertinent inquiry, according to the Commonwealth, was whether Appellee had a prior foregone opportunity to move for return of the Property.

Moreover, the Commonwealth asserts that the Commonwealth Court’s holding that a stand-alone return motion must be filed within six years of the completion of all proceedings in the underlying criminal action effectively provides no limitation upon the timing of such motions, because criminal appeals and collateral attacks may take years to resolve. Even where a significant amount of time has passed, the Commonwealth asserts that nunc pro tunc appellate rights may be reinstated, or an untimely collateral attack launched.

The Commonwealth continues that if the relevant inquiry is the applicable statute of limitations, then whatever that statute of limitations may be, it should run from when the property owner is aggrieved by the seizure, see Pa.R.Crim.P. 588(A) (permitting a return motion to be filed by “[a] person aggrieved by a search and seizure”), or, in cases of a third-party owner not involved in the underlying criminal proceeding, when the property owner knows or reasonably should have known of the seizure, Crouse v. Cyclops Industries, 560 Pa. 394, 745 A.2d 606 (2000) (providing that the discovery rule is a judicially created device that tolls the statute of limitations until the complaining party knows or reasonably should know of his cause of action). While declining to advocate for one statute of limitations in particular, the Commonwealth notes that a two-year statute of limitations would be commensurate with the two-year limitation period for civil forfeiture, see 42 Pa.C.S. § 5524(5).

Responding to the Commonwealth Court’s suggestion that property should be automatically returned to “the party” once time for filing a forfeiture petition runs, the Commonwealth observes that this would be contrary to the requirement in Rule 588(A) that the “person aggrieved by a search and seizure” file a return motion, and further adds that the Commonwealth Court’s concern for protecting third-party property owners would be vitiated if the Commonwealth were simply to return seized property to the criminal charged in the underlying proceeding. According to the Commonwealth, there are sometimes competing claims of ownership which must be adjudicated by a court, and would be disregarded if the Commonwealth were to sua sponte return the property to the party from whom it was seized.

Appellee begins his argument in agreement with the Commonwealth Court that where the Commonwealth has not initiated forfeiture proceedings following “the non-conviction termination of a criminal complaint,” the defendant is entitled to automatic return of the seized property. As support, Appellee relies on Section 6801(c) of the Controlled Substances Forfeiture Act, which requires that in the event property is seized without a warrant, forfeiture proceedings “shall be instituted forthwith,” 42 Pa.C.S. § 6801(c), and 42 Pa.C.S. § 5524(5), which provides a two year statute of limitations for “actions upon a statute for a civil penalty or forfeiture.” According to Appellee, these provisions indicate that where criminal proceedings are terminated prior to trial, the Commonwealth must either begin forfeiture proceedings or return the property to the person from whom it was seized. Appellee does not rely on any legal authority for this latter proposition.

Appellee agrees with the Commonwealth Court’s decision not to follow Setzer, but disagrees with its reasoning. Specifically, Appellee argues that Setzer does not control the timing of a return motion filed by a criminal defendant against whom the charges were dismissed. Rather, Appellee argues that by requiring a return motion to be filed within the thirty-day period for post-trial or post-sentence motions, Setzer is limited to circumstances where a criminal defendant has the opportunity to file such motions. Where there is no trial, Appellee posits that there is no triggering event to file a return motion under Setzer and he therefore cannot be held to the thirty-day period for post-trial or post-sentence motions. Appellee contends that under the facts herein (where charges were dismissed), he had no opportunity to seek the return of his property during the prior criminal proceeding.

Resolution of the current appeal requires us to examine Rule 588 and determine the timing of a motion for return of property. The Rules of Criminal Procedure are to “be construed in consonance with the rules of statutory construction[,]” Pa.R.Crim.P. 101(C), which requires us to interpret the provisions in accord with the plain meaning of their terms. Commonwealth v. Pressley, 584 Pa. 624, 887 A.2d 220, 223 n. 5 (2005).

Although Rule 588 does not directly address the question of timing, it is sufficiently precise with regard to who may file a return motion and where the motion must be filed to permit us to discern that a criminal defendant has an opportunity to file a motion seeking the return of property while the charges against him are pending. Specifically, return motions are filed by “a person aggrieved by a search and seizure” and must “be filed in the court of common pleas for the judicial district in which the property was seized.” Pa.R.Crim.P. 588(A). Additionally, a return motion may be filed pre-trial and joined with a motion to suppress. Id. at 588(C). Pursuant to Rule 588, therefore, a return motion is timely when it is filed by an accused in the trial court while that court retains jurisdiction, which is up to thirty days after disposition. See 42 Pa.C.S. § 5505 (providing that a trial court retains jurisdiction to modify or rescind any order within thirty days of its entry, if no appeal has been taken).

Appellee, therefore, had the opportunity to move for return of the Property during the pendency of the criminal proceedings, or while the trial court retained jurisdiction for thirty days following the dismissal of charges. Although Appellee claims that he had no opportunity to file a return motion during the pendency of the criminal proceedings against him because the Commonwealth dismissed the charges, he has indicated no impediment precluding him from filing the return motion prior to dismissal of the charges or during the thirty-day period during which the trial court retained jurisdiction following dismissal. Contrary to Appellee’s suggestion, Rule 588 does not require a trial as the triggering event for a return motion. Rather, the rule provides that “a person aggrieved by a search and seizure” may file a return motion. It is the search and seizure of the property, therefore, that triggers the ability to move for return of the seized property. Because Appellee was held for trial on February 15, 2002, he had until thirty days following dismissal of the charges, or December 8, 2002, to move for return of the Property. Having failed to do so, he has waived any entitlement to the return of property under Rule 588.

This is consistent with the result the Superior Court reached in Setzer, in which that court addressed a return motion filed almost two years following disposition of the criminal case. Citing the classic rule that an issue not raised is waived and will not be considered on appeal, see Romberger, 378 A.2d at 286, and observing that the issue would have been cognizable in the lower court and reviewable on appeal, the Superior Court held in Setzer that because the court would have been precluded from reviewing a waived claim on direct appeal, it could not consider the waived issue almost two years later on appeal from the denial of the return motion. Setzer, 392 A.2d at 773. The Setzer court, therefore, properly considered the issue waived by the criminal defendant’s failure to raise it before the trial court during the pendency of the underlying criminal proceeding. See also One 1990 Dodge Ram Van, 751 A.2d at 1237 (applying Setzer to hold that the claimant, who was prosecuted in the underlying criminal proceeding, “waived the issue of the return of his property by failing to raise it either in post-trial motions or at the time of his sentencing.”). Contrary to the Commonwealth Court’s holding, this rule of waiver provides a proper analysis, and there was no need to look to various statutes of limitations. In this case, which is all we are adjudicating, we are not faced with an unaware claimant, but rather one who was a party to the underlying criminal proceeding in which he could have filed the return motion but failed to do so.

Thus, by its terms, the applicability of waiver applied herein, in Setzer, and in One 1990 Dodge Ram Van, is limited by whether the party filing the return motion was also a party to the underlying criminal proceeding. If the claimant was the defendant, the waiver rule applies because he had a prior missed opportunity to move for the return of property. Although the Commonwealth Court’s concern for a third-party property owner is valid, we do not address the timing of a return motion filed by a third-party because we are not currently presented with such facts.

Turning to Appellee’s argument that property should be returned by the Commonwealth automatically, it is apparent that there is no authority to support automatic return. To the contrary, Rule 588 provides that a return motion must be filed and premised on the entitlement to lawful possession. Pa. R.Crim.P. 588(A) (stating that a person who is aggrieved by a search and seizure “may move for the return of the property on the ground that he is entitled to lawful possession thereof’ and such motion “shall be filed in the court of common pleas ...”).

Accordingly, we respectfully reject the Commonwealth Court’s reliance on a statute of limitations analysis to resolve the timeliness of Appellee’s return motion, and conclude instead, consistent with the trial court, that Appellee’s failure to file a return motion during the pendency of the criminal charges against him or within thirty days following dismissal of the charges results in waiver, precluding review of his stand-alone return petition. In this respect, Setzer and One 1990 Dodge Ram Van remain valid. We affirm on other grounds the Commonwealth Court’s affirmance of the trial court’s dismissal of Appellee’s return motion.

Former Justice McCAFFERY did not participate in the decision of this case.

Chief Justice CASTILLE and Justice EAKIN and STEVENS join the opinion.

Justice SAYLOR files a dissenting opinion in which Justice TODD joins.

Justice TODD files a dissenting opinion.

Justice SAYLOR,

dissenting.

The Court presently approves the transfer of legal title to private property to the government absent notice or process reflected on the present record, and it allows for such transfer at the end of a 30-day limitations period immediately following jeopardy. I respectfully dissent.

The right to acquire, possess, and protect property is deeply engrained in the federal and Pennsylvania Constitutions. See, e.g., Pa. Const, art. I, § 1. Correspondingly, the presumption that, if reasonably possible, title to property should remain with, or be restored to, its rightful owner is strengthened by multiple interrelated constitutional propositions, including that the owner may not be deprived of it except by due process of law, see U.S. Const, amend. XIV; Pa. Const, art. I, § 9, and that the government may not take private property except for public use and upon payment of just compensation, see Pa. Const, art. I, § 10; U.S. Const, amend. V.

Our statutory law also reflects the primacy of guaranteeing to citizens the secure ownership of their property. Statutes authorizing the taking of property often expressly require that due process be observed, see, e.g., 66 Pa.C.S. § 2704(d); 53 P.S. § 57401, and the Legislature has constrained eminent domain takings even more restrictively than is required by the Constitution, see 26 Pa.C.S. § 204(a); Reading Area Water Auth. v. Schuylkill River Greenway Ass’n, 627 Pa. 357, 100 A.3d 572 (2014). Additionally, the Disposition of Abandoned and Unclaimed Property Act mandates that unclaimed property be held in custody — e.g., by the Commonwealth or a financial institution — for several years before title may transfer, all with the ultimate goal of returning the property in question to its owner. See 72 P.S. § 1301.3 (reflecting escheatment periods of from three to fifteen years depending on the type of property). See generally Delaware Cnty. v. First Union Corp., 605 Pa. 547, 550, 992 A.2d 112, 114 (2010) (describing a seven-year escheatment scheme).

In the police forfeiture setting, procedural safeguards seem particularly important because of the possibility of a conflict of interest — namely, the property seized and forfeited to law enforcement authorities is ultimately transferred to the use of those same authorities. See 42 Pa.C.S. § 6801(e)-(h). So long as the seizure and forfeiture are adjudicated as legally proper, any actual conflict abates, as the forfeiture provisions are then shown to be serving their lawful aims, including deterring crime and preventing the continued illicit use of the subject property. See Bennis, 516 U.S. at 452, 116 S.Ct. at 1000; Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679, 94 S.Ct. 2080, 2090, 40 L.Ed.2d 452 (1974). The propriety of the seizure, however, cannot be simply assumed. If no pre-deprivation hearing is held, then a post-deprivation process is required to give the owner notice and an opportunity to state why the property should be returned to him. See Zinermon v. Burch, 494 U.S. 113, 128, 110 S.Ct. 975, 984-85, 108 L.Ed.2d 100 (1990); see also 42 Pa.C.S. § 6801(c) (requiring that, in the event of a seizure without process, proceedings for the issuance of process “shall be instituted forthwith”). See generally Commonwealth v. West, 937 A.2d 516, 526 (Pa.Super.2007) (“Although ... a vehicle may be validly seized without process under the Forfeiture Act, a person’s property rights therein are not extinguished until a court holds forfeiture proceedings and orders the forfeiture.”).

Nevertheless, the Court presently finds no basis to require any process at all to ensure that property was appropriately seized, ruling instead that an automatic transfer of title may occur after the passage of 30 days. During this period, the individual — who may be innocent of any criminal wrongdoing and unlearned in the law — may have no indication that a minimal window of opportunity is closing on his ownership of the subject property. In cases (such as this one) where the property owner is charged with a crime, moreover, it seems unlikely that the defendant would be primarily concerned with recovering the seized property during his period of jeopardy, as his most pressing concern would appear to be avoiding criminal punishment. Again, however, under the majority’s holding title is automatically transferred to the government after this brief period following jeopardy, simply because the government has physically taken it from the citizen.

The availability of a motion for the return of property under criminal procedural rule 588 has been held to satisfy the requirement of post-deprivation process. See, e.g., McKenna v. Portman, 538 Fed.Appx. 221, 224-25 (3d Cir.2013). That rule contains a restriction regarding the forum where the motion may be filed, see Pa.R.Crim.P. 588(a) (“Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.”), but it does not contain any time limitation. The majority’s solution is to impose a 30-day statute of limitations under a “waiver” rubric. See Majority Opinion, at 590-91, 107 A.3d at 717. Waiver precepts, however, ordinarily pertain when the aggrieved party could have raised an issue at an earlier proceeding that actually occurred, but failed to do so. Here, there was no earlier in rem proceeding relative to the seized property, and hence, the majority is left to resort to a jurisdictional “tail” pertaining to the criminal matter which, although associated with the seizure in terms of the underlying facts, is nonetheless a distinct type of legal proceeding. Indeed, there is nothing in Rule 588 that purports to contextualize a motion for return of property within any criminal proceeding, as it clearly contemplates a motion made even where no criminal charges are filed. As such, application of the 30-day jurisdictional period as an overlay upon Rule 588 is unsupported by the rule’s text, highly attenuated, and contrary to the general precept that legal authorization for property forfeiture should be strictly construed. See Commonwealth v. $2,52348 in U.S. Currency, 538 Pa. 551, 556-57, 649 A.2d 658, 660-61 (1994).

Finally, I remain unmoved by the prospect that the Commonwealth may be inconvenienced by not knowing for a period of time whether it will ultimately take title to the property. If the Commonwealth wishes to settle title without waiting for the owner to file a Rule 588 motion, it has recourse to the Forfeiture Act. See 42 Pa.C.S., Part IV, Chapter 68. Until forfeiture is judicially decreed, the Commonwealth is statutorily designated as the custodian of the property, but not the owner. See 42 Pa.C.S. § 6801(d).

As for the present case, it is undisputed that the Commonwealth ultimately decided not to pursue criminal charges against Allen. Thus, on this record, and within the boundaries of the issue presented to this Court, see supra note 8, the Commonwealth remained merely the custodian of the money it seized from Allen, as explained above. If a defendant in such circumstances files a Rule 588 motion for the return of property, I see no reason why the motion should not be adjudicated on its merits. I would therefore vacate and remand to the common pleas court for such an assessment.

Accordingly, I respectfully dissent.

Justice TODD joins this dissenting opinion.

Justice TODD,

dissenting.

I join Justice Saylor’s erudite and thoughtful dissent in full. I write separately to emphasize the fact that the majority’s construction of Pa.R.Crim.P. 588 (“Rule 588”) — a rule of procedure drafted and promulgated by our Court — seemingly contravenes a fundamental tenet of our jurisprudence — namely that “[t]he rulemaking power of this court is not for the purpose of defining new rights of litigants but rather to provide the procedure by which established rights are to be effectuated.” Commonwealth v. Morris, 565 Pa. 1, 771 A.2d 721, 737 (2001); Commonwealth v. Fowler, 451 Pa. 505, 304 A.2d 124, 127 (1973).

As Justice Saylor emphasizes, the right of property ownership is an important constitutional right which cannot be deprived by the government without the owner being afforded due process of law. The legislature, to augment the protections against unlawful taking of personal property by the government enshrined in our state and federal constitutions, has crafted a substantive legal framework in the Controlled Substances Forfeiture Act, 42 Pa.C.S. § 6801 (“Forfeiture Act”), and the Disposition of Abandoned and Unclaimed Property Act, 72 P.S. § 1301.1, et. seq. (“Unclaimed Property Act”), to limit the circumstances under which the Commonwealth may terminate a person’s ownership interest in property in its possession. These protections, in my view, are undermined by the majority’s interpretation of Rule 588.

Pursuant to the Forfeiture Act, only money which has been furnished, or intended to be furnished, in exchange for a controlled substance in violation of the Controlled Substance, Drug, Device and Cosmetic Act (“CSDDCA”), or intended to be used to facilitate a violation of the CSDDCA, is subject to forfeiture thereunder. 42 Pa.C.S.A. § 6801(a)(6)(i)(A) and (B). Pending the institution of forfeiture proceedings, money “taken or detained under [the Forfeiture Act] shall not be subject to replevin, but is deemed to be in the custody of the law enforcement authority subject only to the orders and decrees of the court of common pleas having jurisdiction over the forfeiture proceedings.” 42 Pa.C.S.A. § 6801(d) (emphasis added). This legislative framework reflects the foundational principle that title for all property seized by the police during a search and seizure remains with the owner, unless and until the Commonwealth obtains an order of forfeiture from the Court of Common Pleas which has jurisdiction over such a proceeding. In the instant matter, the Commonwealth had the opportunity to file a petition for forfeiture of the $1,060.00 in cash in the Court of Common Pleas of Philadelphia within 2 years after police confiscated it from Appellee. See 42 Pa. C.S.A. § 5524(5) (providing that an action upon a statute for a forfeiture must be commenced within 2 years). Had the Commonwealth done so, it would have been afforded an opportunity to demonstrate the required nexus between this money and a violation of the CSDDCA, so as to extinguish Appellee’s property rights to the money, and Appellee would, concomitantly, have been able to contest the matter, and provide evidence related to this issue. See Commonwealth v. $6,425.00, 583 Pa. 544, 880 A.2d 523, 529 (2005).

Accepting as true the assertions of the parties with respect to what transpired below, the Commonwealth did not commence a forfeiture proceeding -within 2 years after seizure of Appellee’s money; thus, under the plain terms of Section 6801(d), the Commonwealth, at present, continues to be merely the custodian of this money. The effect of the majority’s interpretation of Rule 588, however, appears to be the creation of a new substantive right of ownership in the Commonwealth of seized property whenever a person from whom the property is seized by police fails, for whatever reason, to file a motion for return of property under Pa.R.Crim.P. 588 within a 30-day period after seizure, and, as here, neither criminal charges nor forfeiture proceedings are ever commenced by the Commonwealth.

From my perspective, the creation of such a right of ownership in the Commonwealth under these circumstances would contravene the Unclaimed Property Act, which from 2002-2014 required that, whenever money was held by a public officer, or political subdivision of the Commonwealth, and the rightful owner did not make a claim for its return -within 5 years, the public officer or political subdivision became the custodian of the money for the 5-year period and did not, even after expiration of the 5-year period, acquire legal title thereto. See 72 P.S. § 1301.9(1) (West 2013) (providing that property held by a public officer or political subdivision for the owner, which the owner does not request returned, is “presumed abandoned and unclaimed” after a period of 5 years); Id., § 1301.2(a) (providing that all abandoned and unclaimed property is “subject to the custody and control of the Commonwealth.” (emphasis added)). Further, the Unclaimed Property Act requires that all property in the custody of a public officer or political subdivision which has become abandoned and unclaimed be physically transferred to our state Treasurer, who is obligated to publish annual lists of such property in order to facilitate an owner’s claim for its return. Id., §§ 1301.11-1301.13. Consequently, in the absence of a forfeiture proceeding or pending criminal matter, the money seized from Appellee should have been turned over to the Treasurer 5 years after it was seized from Appellee. However, apparently these procedures were not followed in this case.

Under these circumstances, then, the majority’s restrictive construction of Rule 588, de hors its text, and in opposition to the principle that our Rules of Criminal Procedure should be administered in a manner as to secure fundamental fairness, see Pa.R.Crim.P. 101(B), has essentially foreclosed Appellee’s ability to use the judicial process to seek return of his property, thereby effectively transferring legal title therein to the Commonwealth. Consequently, as the practical effect of the majority’s interpretation is to bestow upon the Commonwealth a substantive right to the acquisition of seized property under these circumstances, contrary to the Forfeiture Act and the Unclaimed Property Act, it conflicts with the principle that our rules are to be construed only to effectuate the exercise of substantive rights, and not for the diminution of those rights. Morris, Fowler, supra.

I must, therefore, respectfully dissent.

      . Although the Commonwealth Court’s ultimate disposition was favorable to the Commonwealth by virtue of the affirmance of the trial court's dismissal of Appellee’s petition for return of property, we accepted allocatur agreeing to hear this case. The Commonwealth argues that it is aggrieved by the appellate court’s published decision because of the burden it imposed with respect to motions for return of property filed hereafter. See Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157, 1160 n. 7 (2003) (recognizing that although the Commonwealth prevailed in the lower court, it was aggrieved by the burden imposed therein). Under the Commonwealth Court’s ruling, the Commonwealth, through the district attorneys, would be obliged to litigate the merits of claims which it believes, and we ultimately agree, are waived; and which under the Commonwealth Court's published decision could be raised years after the seizure occurred. Moreover, although Appellee could have asserted that the Commonwealth, as the party that prevailed with respect to the return of property, does not have standing to pursue the appeal, see Pa.R.A.P. 501, he has not done so. Our precedent is clear that standing is subject to waiver and is not jurisdictional, thus, it would be inappropriate for us to sua sponte raise an issue of standing. See In re Paulmier, 594 Pa. 433, 937 A.2d 364, 368 n. 1 (2007); In re Condemnation by Urban Redevelopment Auth. of Pittsburgh, 590 Pa. 431, 913 A.2d 178, 181 n. 6 (2006). Finally, there is no suggestion or indication that the parties have engaged in bad faith or conspired to invoke the Court's jurisdiction. Consequently, we will decide the Commonwealth’s appeal.

      . Rule 588 provides as follows:
      (A) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.
      (B) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
      (C) A motion to suppress evidence under Rule 581 may be joined with a motion under this rule.
      Comment: A motion for the return of property should not be confused with a motion for the suppression of evidence, governed by Rule 581. However, if the time and effect of a motion brought under the instant rule would be, in the view of the judge hearing the motion, substantially the same as a motion for suppression of evidence, the judge may dispose of the motion in accordance with Rule 581.
      Pa.R.Crim.P. 588.

      . Section 6801(c) provides: “In the event seizure without process occurs, as provided herein, proceedings for the issuance thereof shall be instituted forthwith.”

      . Section 5524(5) imposes a two-year statute of limitations upon "[a]n action upon a statute for a civil penalty or forfeiture."

      . This section provides:
      (b) Other civil action or proceeding. — Any civil action or proceeding which is neither subject to another limitation specified in this sub-chapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years.

        42 Pa.C.S. § 5527(b).

      . A stand-alone motion is in contrast to a petition for return of property filed in response to the Commonwealth’s forfeiture petition.

      . According to the Commonwealth, when it files a forfeiture petition in response to an untimely motion for return of property, or when the return motion is filed in response to its forfeiture petition, it is waiving the defenses of untimeliness or waiver by claiming ownership of the subject property and asking the court to adjudicate the merits of its claim. See 42 Pa.C.S. § 6801(a) (defining forfeitable property and providing that “no property right shall exist in them.”). It therefore asserts that it is not opposed to adjudicating return motions, even those that would otherwise be waived, where they are responsive to a forfeiture petition, because forfeiture is a new proceeding in which a return motion is cognizable.

      . A motion to suppress is generally filed after the "case has been returned to court and ... [is] contained in the omnibus pretrial motion ...” Pa.R.Crim.P. 581(B).

      . Although the Commonwealth makes a persuasive argument that return motions are also timely when they are filed in response to a petition for forfeiture, we make no comment on this assertion because it is not what occurred in this case.

      . We emphasize that our holding today is limited to the factual circumstances presented, where the property owner is the criminal defendant, and had an opportunity to move for the return of property during the thirty days following disposition of the charges, while the trial court had jurisdiction. We have not attempted to define the timing pertaining to other circumstances, such as where the property is owned by an individual who is not a party to the underlying criminal action. In this regard, we urge the Civil and Criminal Procedural Rules Committees to consider articulating a rule that would define the timing of return motions filed in circumstances not addressed by this Opinion, such as when the property is owned by a third party.

      . Although the seizure of property through the exercise of governmental power other than eminent domain does not give rise to a takings claim, see Bennis v. Mich., 516 U.S. 442, 452, 116 S.Ct. 994, 1001, 134 L.Ed.2d 68 (1996), the dual requirements of public use and just compensation are mentioned here as illustrative of the broader point that protecting title to property against arbitrary government confiscation has been a foundational concern since the beginning of the Republic.

      . To the degree the Commonwealth believes it may retain property purportedly forfeited outside the Section 6801 framework, the legal basis for such entitlement is unclear.

      . The Commonwealth claims that a forfeiture order issued in April 2002, seven months before it dismissed all charges against Allen. See Brief for Commonwealth at 13 n. 4. However, the papers that the Commonwealth now proffers as supporting its contention have not been included as part of the record on appeal, and, moreover, it does not appear that any judicially recognized docket information is present. In any event, the issue accepted for review — as framed by the Commonwealth — lacks any suggestion that a forfeiture may have occurred, see Commonwealth v. Allen, 621 Pa. 119, 74 A.3d 121 (2013) (per curiam), and the import of the majority opinion transcends the individualized circumstances presented.

      . The intermediate court has explained that
      [cjivil forfeitures are the in rem consequence for wrongdoing prescribed by statute. Property is forfeited not as a result of the criminal conviction, but through a separate proceeding, civil in form but quasi-criminal in naturef.]

        Commonwealth v. Perez, 941 A.2d 778, 780 (Pa.Cmwlth.2008) (citation omitted).

      . 35 P.S. § 780-101, et. seq.

        . Section 6801(d)(2) allows the law enforcement authority to turn custody of the property over to the District Attorney.

      . I presume for purposes of this appeal that Appellee was the owner of the cash which was recovered from the vehicle in which Appellee was a passenger.

      . Effective July 10, 2014, the 5 year period was reduced to 3 years. See Act of July 10, 2014, P.L. 1053, § 7.


author: Chief Justice CASTILLE. Justice SAYLOR,

text:
    107 A.3d 723
    COMMONWEALTH of Pennsylvania, Appellant v. Jason Lee HOOVER, Appellee.
    Supreme Court of Pennsylvania.
    Argued Oct. 7, 2014.
    Decided Dec. 30, 2014.

      Trudy Gale Lumadue, Clearfield County District Attorney’s Office, for Commonwealth of Pennsylvania.
    Lance T. Marshall, State College, Masorti & Sullivan, P.C., for Jason Lee Hoover.
    CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
   OPINION

Chief Justice CASTILLE.

The Commonwealth appeals from a Superior Court Order vacating appellee’s judgment of sentence for theft by unlawful taking, receiving stolen property, criminal conspiracy, and corruption of minors, and remanding for a new trial. The Superior Court panel concluded that the trial court abused its discretion in determining that the probative value of appellee’s prior crime of dishonesty (crimen falsi) substantially outweighed its prejudicial effect. For the following reasons, we reverse the order below and remand for the Superior Court to consider appellee’s remaining claim regarding appellee’s proposed alibi testimony.

I.

On April 20, 2012, the Commonwealth filed a criminal complaint against appellee alleging that on April 4, 2012, appellee and two co-conspirators, Barry Martell and D.M., a juvenile, stole parts and equipment from RES Coal Company in Goshen Township, Clearfield County, and later sold the stolen parts to a local salvage yard. On October 4, 2012, appellee filed a motion in limine seeking to preclude the Commonwealth from impeaching him with evidence of his 1998 crimen falsi conviction which resulted from appellee’s guilty plea, at twenty-two years of age, to a single third-degree felony count of receiving stolen property. Acknowledging the specific list of five factors reiterated by this Court in Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1826 (1987), to be considered in determining whether remote crimen falsi adjudications — i.e., those that are more than ten years old — are admissible as more probative than prejudicial, the trial court found that the balance of those factors weighed in favor of admitting appellee’s single crimen falsi conviction for impeachment purposes. Specifically, the trial court considered:

(1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; (2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; [ (]3) the age and circumstances of the defendant; [ (]4) the strength of the prosecution’s case and the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and [ (]5) the existence of alternative means of attacking the defendant’s credibility.

Id. at 1328 (quoting Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364, 367 (1978), abrogated in part as stated in Commonwealth v. Rivera, 603 Pa. 340, 983 A.2d 1211 (2009)). The trial court determined that factors one, three, four, and five weighed in favor of the Commonwealth, enhancing the probative value of appellee’s crimen falsi conviction, while only the second factor weighed in appellee’s favor, increasing the potential improper prejudicial impact of appellee’s prior conviction. With this analysis, the trial court denied appellee’s motion in limine.

At trial, D.M., testifying for the Commonwealth, stated that appellee was involved in the theft and that D.M., Martell and appellee had all agreed to steal the items and sell them for cash. Appellee then took the stand in his own defense in support of a claim of total innocence, stating that he was unaware of the theft, and that Martell and D.M. stole the items without his knowledge or participation. At the close of his testimony, and in the presence of the jury, the prosecutor asked the trial court to take judicial notice of appellee’s prior crimen falsi conviction. N.T., 10/22/12, at 201.

Thereafter, the parties proceeded immediately to closing arguments. Appellee’s counsel did not address appellee’s prior crimen falsi conviction during his closing, but instead, counsel vigorously attacked D.M.’s credibility, employing no unusual points of impeachment. Thus, counsel argued that D.M. was not telling the truth, that his testimony was from a corrupt and polluted source, and that it should be received with great caution because D.M. had an interest in the outcome of the case, having admitted to being a thief and being involved in the crime at issue. Id. at 206, 210. In a similar attempt to persuade the jury not to accept appellee’s testimony, the prosecutor made use of appellee’s prior conviction in his closing argument as follows:

I argue to you that, you know, who’s telling the truth and who’s being factually correct and honest with you people is an issue for [you to] decide, but after the [Commonwealth — or, after the defendant testified, the [Commonwealth introduced a prior conviction of the defendant for a crime called receiving stolen property.
And I offered that, or am allowed to offer that, to you because receiving stolen property’s called a crimen falsi, a crime of dishonesty. So I don’t say, hey, the defendant was convicted of receiving stolen property in the past; therefore, he must have done it this time. I say to you that the defendant was convicted in the past of a crime of dishonesty so, therefore, you can consider that when you decide who’s telling the truth, who’s being honest or dishonest.

Id. at 232. Appellee lodged no objection to the prosecutor’s argument.

Immediately following closing arguments, the court issued its jury instructions, which included its instruction regarding the treatment of appellee’s prior crimen falsi conviction. The court stated:

Now, there was evidence here tending to show that the defendant has a prior criminal conviction. And I’m talking about the record introduced by the [C]ommonwealth as to his prior conviction of receiving stolen property, all right.
Note that this evidence about that prior conviction from 1998 is not evidence of the defendant’s guilt. You must not infer guilt from the evidence of that prior conviction. This evidence may be considered by you for one purpose only. That is, to help you judge the credibility and weight of the testimony given by the defendant as a witness in this trial.
So in considering the evidence of that prior conviction, you may consider the type of crime committed and how long ago it was committed, and how it may affect the likelihood that the defendant has testified truthfully in this case.

Id. at 246-47. Neither party objected to this instruction.

Following trial, the jury found appellee guilty of theft by unlawful taking, receiving stolen property, criminal conspiracy and corruption of minors. The trial court later sentenced appellee to an aggregate term of twenty-one to sixty months of imprisonment, and appellee appealed to the Superior Court.

On appeal, appellee raised two evidentiary issues: he claimed that the trial court abused its discretion in admitting his prior crimen falsi conviction, and in prohibiting the testimony of appellee’s alibi witness. Addressing the crimen falsi issue, the Superior Court panel, in an unpublished decision, reweighed the five factors addressed in Randall, and vacated the judgment of sentence and remanded the matter for a new trial. Given its disposition, the panel did not reach the issue of appellee’s alibi witness. On the Randall question, the panel agreed with the trial court that factors one, four and five weighed in favor of the Commonwealth, i.e., in favor of admissibility, but took issue with the trial court’s weighing of factors two and three. Regarding the third factor — the defendant’s age and circumstances — the panel found that commission of a crimen falsi at the age of twenty-two could not be held against appellee, and therefore this factor was neutral, instead of weighing in favor of the Commonwealth as the trial court had concluded. And finally, with respect to the second factor — the likelihood of the defendant’s record having a greater tendency to prejudice the defendant by showing a criminal propensity rather than to discredit — the panel disagreed that this factor merely weighed in favor of appellee, but insisted instead that it weighed heavily in appellee’s favor, indeed to the extent of “extreme prejudice.” Super. Ct. Op. at 14. Based on the panel’s disagreement with the trial court regarding these two out of the five relevant factors, the panel concluded that the trial court abused its discretion in admitting evidence of appellee’s prior crimen falsi conviction. We granted the Commonwealth’s petition for allowance of appeal.

II.

In support of the trial court’s discretionary evidentiary ruling, the Commonwealth argues that the admission of appellee’s prior conviction was proper according to the relevant five-factor analysis set forth by this Court in Randall. The Commonwealth contends that the sole purpose of admitting the prior conviction was to impeach appellee’s credibility since he took the stand as a witness in his own defense, and his testimony, claiming non-involvement, was the only direct evidence of such non-involvement, and the testimony of the lone eyewitness presented by the Commonwealth directly contradicted appellee’s account. While the parties and the lower courts agree that the first Randall factor — the degree to which the prior conviction reflects on veracity — favors admissibility since the prior offense was crimen falsi in nature, the Commonwealth argues that the second factor — the likelihood of a greater tendency that the criminal record will prejudice the defendant by showing criminal propensity — should not weigh as heavily as the Superior Court panel weighed it in favor of appellee. The Commonwealth does not contest that there was a potential for prejudice to appellee, but maintains that the test is whether the prejudice is outweighed by probative value, and in the Commonwealth’s view, the remaining factors reveal the probative value of the prior offense in the instant matter.

Moreover, the Commonwealth insists that the likelihood of improper prejudice was low in this case because the prosecutor’s references to the prior offense were few and brief, and because the prosecutor specifically argued to the jury that the crime was relevant only to assess appellee’s truthfulness on the stand, and not to show his criminal propensity. The Commonwealth further notes that the single prior offense at issue would have less of a tendency to cause an unfair prejudicial effect than was present in several other Pennsylvania reported decisions where multiple prior offenses were deemed admissible for purposes of impeachment, despite the potential to suggest criminal propensity. See, e.g., Rivera, 983 A.2d at 1228 (“we conclude that the trial court acted within its discretion in determining that Appellant’s [five] previous crimen falsi adjudications were more probative than prejudicial.”).

Further addressing the third factor, the Commonwealth argues that a twenty-two-year old individual should be regarded as responsible and accountable for his actions, and that appellee’s age at the time of his prior crime should not be regarded as lowering the probative value of the evidence in this case, but should actually weigh in favor of admissibility. In support of this argument, the Commonwealth again cites Rivera, where this Court concluded that the trial court acted within its discretion in determining that juvenile adjudications involving crimen falsi were more probative than prejudicial. And, with regard to factors four (strength of case) and five (existence of alternate means of impeachment), the Commonwealth explains that this case came down to a credibility determination between appellee and the Commonwealth’s chief witness — two accused criminal confederates — who had starkly different versions of the events, and therefore appellee’s prior conviction was essential to the Commonwealth’s case. Along these lines, the Commonwealth notes that there was no other direct impeachment evidence available to the government. Thus, the Commonwealth maintains that the trial court did not abuse its discretion in allowing the Commonwealth to introduce, and then make reference to, the single prior crimen falsi for impeachment purposes only.

In response, rather than make a specific argument as to how the trial court might have abused its discretion, appellee insists that:

[T]he only issue before this Honorable Court is whether the probative value of [appellee’s] 1998 Receiving Stolen Property conviction substantially outweighs the prejudicial effect after [appellee] testified he did not steal, did not receive stolen property and did not conspire with others to steal property.

Appellee’s Brief at 4. According to this framing of the issue before this Court, the bulk of appellee’s argument concerns the proper weighing of the prejudicial effect and probative value of his prior crimen falsi conviction. Appellee thus focuses his attention on the second factor of the five-factor analysis — the likelihood of a greater tendency of the defendant’s criminal record to smear him by showing his criminal propensity. Appellee then attempts to support the panel’s reweighing of this factor by looking primarily to caselaw from outside of this Commonwealth and other Superior Court precedent to make the point that evidence of a prior conviction for the very same crime for which a defendant is being tried contains an inherent suggestion of criminal propensity. Appellee maintains that since the evidence against him was not overwhelming, the admission of the prior offense in this instance was particularly damaging and prejudicial. Appellee concedes that the credibility determination was the central issue at trial. Nonetheless, appellee discounts precedent relied upon by the trial court for the proposition that the need to introduce evidence of prior crimen falsi convictions is high where the jury must decide whether to believe a single Commonwealth witness or a single defense witness in order to reach a verdict. Appellee’s Brief at 8 (citing Commonwealth v. Palo, 24 A.3d 1050 (Pa.Super.2011)).

Appellee makes no attempt to support the panel’s holding regarding the third factor, ie., that a crime by a twenty-two year old ought not to be used against him thereafter because of his age. Notwithstanding, appellee insists that the Superi- or Court’s ruling should be affirmed because the probative value of his prior crimen falsi conviction did not substantially outweigh its potential prejudicial effect.

III.

We hold that the Superior Court panel’s decision cannot stand, because the panel paid insufficient deference to the discretionary decision of the trial court, and is not otherwise supported by Pennsylvania law. “When reviewing the denial of a motion in limine, this Court applies an evidentiary abuse of discretion standard of review.... It is well-established that the admissibility of evidence is within the discretion of the trial court, and such rulings will not form the basis for appellate relief absent an abuse of discretion.” Rivera, 983 A.2d at 1228 (citation and quotation marks omitted). Thus, the Superior Court may reverse an evidentiary ruling only upon a showing that the trial court abused that discretion. Commonwealth v. Laird, 605 Pa. 137, 988 A.2d 618, 636 (2010). A determination that a trial court abused its discretion in making an evidentiary ruling “may not be made ‘merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.’ ” Id. (quoting Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 495 (2009)). Further, discretion is abused when the law is either overridden or misapplied. Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277, 1281 (2005).

Our review of the Superior Court’s assessment of the trial court’s discretionary decision, of course, is not deferential, but plenary and de novo. This Court is in the same position as the Superior Court when reviewing discretionary trial level determinations. Moreover, we are mindful that the question is not how we might have balanced the Randall factors had we been presiding over the trial. The question is whether the trial court’s balancing fell within its discretionary authority.

Here, the Superior Court panel recognized that the trial court correctly identified and considered the governing substantive law: the Randall line of cases setting forth the requisite factors governing the admission of remote crimen falsi convictions. Nor did the panel, or appellee for that matter, suggest that the trial court’s judgment was manifestly unreasonable, the product of partiality, prejudice or ill-will, clearly erroneous, or represented a misapplication, or overriding of, Pennsylvania law. Rather, in overturning the trial court, the panel appears to have reweighed the probative value of appellee’s prior crimen falsi offense and its potential prejudicial effect by reapplying the requisite five-factor analysis on its own assessment, and then determined that the trial court abused its discretion because the panel, analyzing a cold record, reached a different conclusion. The panel’s approach and determination cannot stand.

The difference between the trial court’s analysis and that of the Superior Court fundamentally is not a matter of legal error on the part of the trial court, but a reflection of differences in judgment in weighing and reweighing the same identified factors, yet reaching different conclusions. On the record here, where the trial court considered all factors in light of the case that unfolded before it, and where measures were taken, both by the trial court and the prosecutor, to ensure that the crimen falsi evidence was not misunderstood or misused, it cannot be said that the trial court’s decision suffers from such a lack of support that it is clearly erroneous. This is particularly so where there is no real dispute that of the five enumerated considerations in Randall, only one, a factor which was addressed and weighed by the trial court, has been argued to counsel against the trial court’s discretionary decision. At least three of the remaining four factors counsel in support of the trial court’s discretionary ruling.

But, it is not a matter of merely counting up factors. The vesting of discretion allows for flexibility in balancing factors, according to the circumstances. Thus, for example, there is certainly some force in appellee’s argument that, when the prior crime involves the same basic offense currently being tried, there is a greater likelihood that a juror might lapse into viewing the prior crime as indicating a propensity for that particular type of crime. But, on the other hand, here, there was but one prior offense; obviously, the greater the number of prior crimen falsi convictions, the greater the danger of assuming propensity. And, the trial court took specific measures to deter the jury from considering the crimen falsi as establishing propensity. Appellee’s argument that admission of his crimen falsi could have been particularly harmful because the case came down to the credibility of two witnesses and the evidence thus was not overwhelming misses the complexity of the trial court’s discretionary task. If the crimen falsi undermined appellee’s case because the jury used it as a basis to discredit his testimony — which is how the evidence was posed to the jury by both the prosecutor and the judge — that was a proper use, properly “prejudicial” to appellee’s case, and not a basis for exclusion. Moreover, in understanding the totality of the circumstances affecting the trial court’s decision, it should be remembered that the Commonwealth’s prime witness was subject to impeachment as well, on multiple grounds, which obviously increases the importance, to the Commonwealth, of a similarly well-established form of impeachment. The point, we reiterate, is not how an appellate court might balance all of these factors, but rather, whether the trial court’s balancing so departs from what is reasonable that it can be set aside.

Beyond the panel’s failure to observe the jurisprudential limitations of the abuse of discretion standard of review, the Superior Court approach and decision are inconsistent with Pennsylvania law. Evidence to impeach the credibility of a witness is admissible so long as it is relevant to that purpose and not otherwise barred. Pa.R.E. 607(b). Under settled law, evidence that a witness has been convicted of crimen falsi is generally admissible, unless the conviction (or release from confinement, whichever is later) is more than ten years old. Pa.R.E. 609(a), (b). It is only when the crimen falsi conviction is more than ten years old, as it is here, that evidence of the conviction becomes conditioned on the probative value of the evidence substantially outweighing its potential prejudicial effect. Pa.R.E. 609(b)(1). The five Randall factors then guide that discretionary determination.

Here, the trial court concluded that evidence of appellee’s prior crime was admissible because, although the prior conviction might suggest criminal propensity to the jury, each of the other relevant factors weighed in favor of the Commonwealth. The court found that the prior conviction reflected on appellee’s veracity and that appellee was old enough at the time of the conviction to have appreciated the consequences of his actions. Further, the court found that the Commonwealth’s case relied on D.M.’s testimony of the events, which conflicted with appellee’s account. Therefore, the court concluded, the Commonwealth’s need to use the prior conviction as impeachment evidence was high because alternative means of attacking appellee’s veracity were minimal. As noted, the court instructed the jury to limit its consideration of appellee’s prior crimen falsi offense to the sole purpose of assessing the credibility and weight of his testimony, and the Commonwealth specifically argued that the evidence was offered only to impeach appellee’s credibility.

The Superior Court panel agreed that the conviction reflected upon appellee’s veracity and that the Commonwealth needed the evidence to attack appellee’s credibility. Nevertheless, the panel disagreed, apparently as a matter of law, with the weight that the trial court afforded to appellee’s age at the time of the prior conviction and the weight afforded to the similarity between the prior and instant crimes in determining prejudice, again apparently as a matter of law. Notably, the panel cited former Chief Justice Nix’s dissenting opinion in Randall when it stated, without underlying support, that “the probative value of a conviction when an individual is in his early twenties is small” and, as a result, held that its value in the five-factor analysis was “neutral and neither weighted] in favor nor against introduction of the prior conviction.” Super. Ct. Op. at 10-11 (citing Randall, 528 A.2d at 1331 (Nix, C.J., dissenting); United States v. Norton, 26 F.3d 240, 244-45 (1st Cir.1994); and United States v. Williams Ogletree, No. 11 CR 203-3, 2013 WL 66207, at *7 (N.D.Ill. Jan. 4, 2013)). Additionally, the panel held that the trial court “understated” the “extreme” prejudicial effect of appellee’s single 1998 conviction in light of the similarities with the charges that appellee was facing. According to the panel, “[i]t [wa]s hard to imagine how the jury would not have inferred that [appellee] had a propensity to commit the instant offenses because of his prior conviction.” Super. Ct. Op. at 14. So then, because, in the panel’s view, this “extreme” prejudicial effect outweighed the probative value of the prior crimen falsi, the panel concluded that its admission was an abuse of the trial court’s discretion.

The panel’s idiosyncratic approach is not supported by Pennsylvania law. The prejudicial effect of a prior conviction is not assessed in a vacuum; an appellate court should not only consider the purpose for which the evidence is introduced, but the actual use made of the evidence and also the jury instructions that accompany the admission of evidence. See Commonwealth v. LaCava, 542 Pa. 160, 666 A.2d 221, 229 (1995). Here, the jury was specifically instructed that the prior conviction was not evidence of appellee’s guilt and that the jury was required to consider it for the limited purpose of judging the credibility and weight of the testimony given by appellee as a witness in this trial. There is no reason to believe that the jury did not follow the trial court’s instruction. See id. at 228 (jury presumed to follow trial court’s instruction regarding limited purpose of evidence).

Furthermore, the panel appears to have created a new standard for admitting evidence of a prior conviction for impeachment purposes with respect to the youth of the defendant, which is at odds with the controlling rule of evidence. Under Evidence Rule 609(d), in a criminal case, even evidence of an adjudication of juvenile delinquency “may be used to impeach the credibility of a witness if conviction of the offense would be admissible to attack the credibility of an adult.” Consistently, there is no support in Pennsylvania law for the proposition that the probative value of a young adult offender’s conviction “is small.” Indeed, former Chief Justice Nix did not comment about the intrinsic probative value of a youthful conviction in his Randall dissent, but rather, what he believed was the arbitrary nature of the Randall majority’s per se rule of admissibility with a 10-year cutoff; the dissent’s examples spoke about the relevance of the prior conviction in several different scenarios. 528 A.2d at 1330-31. The remaining cases cited by the Superior Court panel are from other jurisdictions, as the Commonwealth accurately notes. The Superior Court’s decision on this point appears to reflect — and to greatly expand upon — the U.S. Supreme Court’s recent focus on youth as an element diminishing culpability in criminal matters. See, e.g., Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (Eighth Amendment prohibits mandatory sentence of life without parole for juvenile murderers); and Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (Eighth Amendment prohibits sentence of life without possibility of parole for juvenile convicted of non-homicide offense).

This appeal, however, poses a non-constitutional issue involving settled principles of Pennsylvania evidentiary law, and a trial court’s exercise of discretion under those principles. There was no need, or warrant, for the Superior Court to seek to innovate a novel standard for admitting a prior conviction for impeachment purposes, particularly one based on federal sources, since the applicable Pennsylvania Rule of Evidence and the corresponding federal rule, F.R.E. Rule 609, are quite distinct. Thus, while subsection (d)(2) of the corresponding federal rule limits the admissibility of juvenile adjudications to those of witnesses other than the defendant, subsection (d) of the Pennsylvania rule, as stated, contains no such limitation, but specifically allows the use of juvenile adjudications for impeachment purposes. Thus under Pennsylvania law, prior adult convictions of crimes of dishonesty remain fair game for impeachment in appropriate circumstances.

The Superior Court’s decision is reversed and the case is remanded to that court to decide appellee’s remaining evidentiary issue. Jurisdiction is relinquished.

Justice McCAFFERY did not participate in the decision of this case.

Justice EAKIN and BAER, TODD, and STEVENS join the opinion.

Justice SAYLOR files a dissenting opinion.

Justice SAYLOR,

dissenting.

I respectfully dissent.

Evidentiary rule 609(b) requires exclusion of a prior stale crimen falsi conviction unless the conviction’s “probative value substantially outweighs its prejudicial effect[.]” Pa.R.E. 609(b)(1) (emphasis added). This balancing test is a loose encapsulation of factors that were originally mentioned in Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), and repeated in Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987). The rule’s commentary indicates that 609(b) “basically tracks what was said” in Randall. Id., Official Cmt. Still, the text obviously predominates over any associated commentary as well as the decisional law purportedly incorporated by the commentary. Accord Mitchell Partners, L.P. v. Irex Corp., 617 Pa. 423, 435-36, 53 A.3d 39, 46-47 (2012) (applying a similar approach to statutory text). Thus, I believe that courts should focus primarily on the text of Rule 609(b)(1).

As I read the rule, it chiefly implicates the second Randall factor. That factor balances the potential for the evidence to “smear the character of the defendant and suggest a propensity” to commit the crime, against its tendency to “provide a legitimate reason for discrediting” the witness. Randall, 515 Pa. at 413, 528 A.2d at 1328. To my mind, these are essentially the same as “probative value” and “prejudicial effect,” albeit the latter are more concisely phrased. In this regard, the Commonwealth’s only valid use of a prior conviction in this context is to suggest the defendant’s untruthfulness as a witness, see Roots, 482 Pa. at 37, 393 A.2d at 366, and hence, it is only in this manner that the conviction can properly be deemed probative. See Commonwealth v. Bighum, 452 Pa. 554, 566, 307 A.2d 255, 262 (1973). As such, notwithstanding the commentary, Rule 609(b)(1) principally carries forward the second of the five Randall factors.

I make this observation because it seems to me — and the present case illustrates the point — that use of the five factors as a framework for disposition has begun to overshadow the rule’s actual meaning and intent. A review of earlier cases which contributed to the formulation of Rule 609(b) reveals that the Court was not satisfied simply to give wide discretion to trial courts to use an open-ended, multi-factored balancing test subject to extremely deferential review. Rather, the rule had its origin in cases, such as Bighum, which were mainly concerned with closely channeling the common pleas courts’ exercise of discretion in view of the danger that a defendant might be unfairly prejudiced by prior bad-acts evidence. Big-hum observed that, “[w]here the defendant has no other means by which to defend himself, it would be particularly unjust to subject him to the introduction of prior convictions.” Bighum, 452 Pa. at 567, 307 A.2d at 263.

Within this context, factors other than the second one, such as the age and circumstances of the defendant or the existence of alternative means of attacking the defendant’s credibility, were more peripheral than central, as they served to guide the ultimate determination of whether the probative value did, in fact, significantly outweigh the danger of unfair prejudice. Accord Roots, 482 Pa. at 39, 393 A.2d at 367 (summarizing Bighum as representing an effort “to limit the admission of this type of evidence to situations where its introduction was of essential evidentiary value to the prosecution and not unreasonably unfair to the defense”); see also Bighum, 452 Pa. at 565 n. 7, 307 A.2d at 262 n. 7 (“The vortex of the storm of disagreement seems to focus upon the balance between the probative value of this type of evidence as it bears on the credibility of the defendant as a witness as opposed to the prejudicial effect that such evidence has upon the jury.” (citing Note, Other Crimes Evidence At Trial: Of Balancing And Other Matters, 70 Yale L.J. 763 (1961))). Additionally, the Court was viewing the admission of stale other bad-acts evidence with great circumspection. See, e.g., Roots, 482 Pa. at 41, 393 A.2d at 368 (suggesting that this type of evidence has a “highly inflammatory potential”); Bighum, 452 Pa. at 566, 307 A.2d at 262 (recognizing “the tendency of a normal juror to accept testimony of prior convictions as a basis for finding a predisposition to commit the crime charged”).

In this arena, excessive deference to common pleas courts can be harmful, as it tends to undermine the rationale and purport of the earlier cases and restrict the provision of meaningful guidance to such tribunals. Such an approach, then, is in substantial tension with the underlying philosophy and concerns as expressed in the earlier cases, as well as with Rule 609(b)’s goal of providing an essential check on the introduction of prior-crimes proofs which do not bear directly upon the question of guilt or innocence. Accordingly, I believe that Pennsylvania courts should recognize that Rule 609(b)(1), by its terms and for valid reasons, is restrictive in nature.

In determining whether probative value substantially outweighs prejudicial effect, it should be noted, first, that the danger of unfair prejudice can be significant, particularly in a situation where the defendant’s only means of defending himself is to testify. See Bighum, 452 Pa. at 567, 307 A.2d at 263; Commonwealth v. Spruill, 480 Pa. 601, 606, 391 A.2d 1048, 1050-51 (1978) (“Evidence of prior criminal activity ... is probably only equaled by a confession in its prejudicial impact upon a jury. Thus, ... courts should be ever vigilant to prevent the introduction of this type of evidence under the guise that it is being offered to serve some purpose other than to demonstrate the defendant’s propensity to commit the charged crime.” (emphasis removed)). On the other hand, while any crimen falsi conviction undoubtedly has some probative value, that value is somewhat diminished in the Rule 609(b) category of cases, since by definition the category only includes stale convictions — meaning they are more than ten years old. Where, as here, there is only one stale prior offense, it cannot demonstrate a pattern of dishonesty. Hence, in such a circumstance the probative value is diminished even further.

The trial court recognized that the probative value did not outweigh, let alone substantially outweigh, the prejudicial effect. Indeed, the court recognized that the second Randall factor — again, the primary one for Rule 609(b)(1) purposes— weighed in Appellee’s favor, and particularly so because the identity of the prior crime with the offense charged would have the effect of suggesting criminal propensity, which is forbidden. See Pa.R.E. 404(b)(1); Commonwealth v. Hairston, 624 Pa. 143, 157, 84 A.3d 657, 665 (2014) (citing Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988)). Other courts have also considered the enhanced potential for prejudice when the prior crime is the same as the present one. In United States v. Sanders, 964 F.2d 295 (4th Cir.1992), the federal appellate court explained:

Admission of evidence of a similar offense often does little to impeach the credibility of a testifying defendant while undoubtedly prejudicing him. The jury, despite limiting instructions, can hardly avoid drawing the inference that the past conviction suggests some probability that [the] defendant committed the similar offense for which he is currently-charged. The generally accepted view, therefore, is that evidence of similar offenses for impeachment purposes under [Federal] Rule 609 should be admitted sparingly if at all.

Id. at 297-98 (quoting United States v. Beahm, 664 F.2d 414, 418-19 (4th Cir.1981)) (emphasis added); accord State v. Colf, 337 S.C. 622, 525 S.E.2d 246, 249 (2000); State v. Redmond, 803 N.W.2d 112, 124 (Iowa 2011) (“[0]ur case law has continually cautioned against admitting prior convictions which are similar to the defendant’s current charge for fear the jury will assume the defendant’s guilt by inferring the defendant acted in conformity with his past conduct.”).

As noted, the trial court here recognized this same possibility, and on that basis, ruled that the second Randall factor weighed in Appellee’s favor. See supra note 2. Yet the court ultimately determined, based on other Randall factors, that the prior conviction was admissible. See Hoover, No. CP-17CR-451-2012, slip op. at 7. Thus, the court rested its decision on the premise that, under Rule 609(b)(1), all five Randall factors stand on essentially the same footing. I would find this to constitute a misapplication of the governing law — again, the actual text of Rule 609(b)(1) — and thus, an abuse of discretion. See Commonwealth v. Wright, 621 Pa. 446, 462, 78 A.3d 1070, 1080 (2013) (recognizing that a misapplication of the law amounts to an abuse of discretion); Majority Opinion, at 610-11, 107 A.3d at 729 (same).

Accordingly, I would affirm the Superior Court’s order awarding a new trial, and to the degree the intermediate court’s decision reflects an emphasis upon the weighing process, I support its efforts to provide guidance to the common pleas courts consistent with earlier prevailing decisions of this Court.

      . 18 Pa.C.S. §§ 3921(a), 3925(a), 903(a)(1), and 6301(a)(l)(i), respectively.

      . There is no issue before the Court respecting the manner by which the prior conviction was introduced.

      . In Commonwealth v. Rivera, 603 Pa. 340, 983 A.2d 1211 (Pa.2009), by contrast, there were five prior crimen falsi offenses. Moreover, all such prior offenses were of a vastly different nature than the offense for which the defendant was on trial. See id. at 368, 983 A.2d at 1229. In terms of assessing prejudice, the importance of the present identity of the prior offense with the offense charged is discussed below.

      . The trial court explained that, because Appellee was "charged with the same crime as his past conviction,” the admission of his prior conviction "is more likely to suggest criminal propensity.” Commonwealth v. Hoover, No. CP-17-CR-451-2012, slip op. at 5 (C.P. Clearfield March 21, 2013). In a similar vein, the Superior Court expressed that the prejudice
      was extreme as the prior conviction entered into evidence was for the same offense with which Appellant was presently charged and was substantially similar to the other four charges. It is hard to imagine how the jury would not have inferred that Appellant had a propensity to commit the instant offenses because of his prior conviction. Although there was some probative value in the introduction of the prior conviction, it does not substantially outweigh the prejudice of its introduction.

        Commonwealth v. Hoover, No. 55 WDA 2013, slip op. at 14, 93 A.3d 510 (Pa.Super.2013).


author: PER CURIAM. Justice EAKIN,

text:
    107 A.3d 735
    COMMONWEALTH of Pennsylvania, Appellant v. Anthony ARMSTRONG, Appellee.
    Supreme Court of Pennsylvania.
    Argued Sept. 9, 2014.
    Decided Dec. 30, 2014.
    CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, STEVENS, JJ.
   ORDER

PER CURIAM.

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, 623 Pa. 560, 83 A.3d 411 (2014); see Commonwealth v. Armstrong, 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.

Chief Justice CASTILLE, Justices SAYLOR, BAER and TODD join the PER CURIAM affirmance based on the intermediate court’s analysis.

Justice EAKIN files a dissenting statement in which Justice STEVENS joins.

Justice EAKIN,

dissenting.

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, 623 Pa. 23, 81 A.3d 829, 829-30 (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 (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, 74 A.3d 228, 239-42 (Pa.Super.2013). The Superior Court relied primarily on Shijfler, 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 applied despite the unambiguous language of the statute. See id., at 242 (“Instantly, [a]ppellant’s case differs from those in [Commonwealth v.] Shiffler, [583 Pa. 478, 879 A.2d 185 (2005), and Commonwealth v.] McClintic, [589 Pa. 465, 909 A.2d 1241 (2006) ], in that he was not sentenced simultaneously to the predicate offenses at issue.”).

Before us are facts this Court has yet to address under the current provisions of § 9714. While this Court considered a similar criminal-history background in Commonwealth v. Dickerson, 533 Pa. 294, 621 A.2d 990, 991-92 (1993), that case involved a substantially different version of § 9714; this statute has been amended with great regularity in the intervening 20 years. The question is whether the present statute’s language is rendered nugatory by the “recidivist theory.”

However, § 9714’s current language not only allows a third-strike sentence under the present facts — on its face, it mandates it. Its application is not jumbled by ambiguity: it applies if “at the time of the commission of the current offense” the defendant had two or more “convictions” from “separate criminal transactions.” The statutory scheme is straightforward and unambiguous — at the time of the present crime, how many prior convictions does the defendant have? At the time he committed the crime at issue here, appellee had at least two such convictions and they were not from the same criminal transaction. As the answer here is two, and they were not for the same criminal transaction, § 9714 applies.

Or so it would seem. My point is that if this statute is to be trumped by the recidivist theory, explanation and pronouncement should come from this Court. Such advocacy on the merits that I offer is not to express what the outcome of this case should be, but is meant only to highlight that appellee presents a colorable argument. I dissent solely to note that if the recidivist theory is to render clear statutory language irrelevant, under this previously unaddressed scenario, it should not happen through the back door of adopting a portion of a Superior Court opinion.

Justice STEVENS joins this dissenting statement.

      . The roots of the theory are not grounded in statute. The Dickerson Court adopted the Superior Court’s rationale concerning recidivism. See id., at 992 (quoting Commonwealth v. Dickerson, 404 Pa.Super. 249, 590 A.2d 766, 771 (1991)). That adopted rationale was directly quoted from Commonwealth v. Sutton, 125 Pa.Super. 407, 189 A. 556 (1937). See Dickerson, 590 A.2d at 771 (quoting Sutton, at 558).


text:
    107 A.3d 737
    Darien HOUSER, Petitioner v. COMMONWEALTH of Pennsylvania et al., Respondents.
    No. 166 EM 2014.
    Supreme Court of Pennsylvania.
    Dec. 30, 2014.
   ORDER

PER CURIAM.

AND NOW, this 30th day of December, 2014, the Application for Leave to File Original Process is GRANTED, and the Petition for Writ of Mandamus and/or Extraordinary Relief and the Application for an Immediate Hearing are DENIED.


text:
    107 A.3d 738
    Robert RAMIREZ, Petitioner v. Nancy GIROUX, Respondent.
    No. 165 EM 2014.
    Supreme Court of Pennsylvania.
    Dec. 30, 2014.
   ORDER

PER CURIAM.

AND NOW, this 30th day of December, 2014, the Application for Leave to File Original Process is GRANTED, and the Petition for Writ of Habeas Corpus and the Motion for an Instant Hearing are DENIED.