Commonwealth v. Wardlaw, J., Aplt.

C
                             [J-87-2020] [MO: Wecht, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                    :   No. 15 WAP 2020
                                                  :
                      Appellee                    :   Appeal from the Order of the
                                                  :   Superior Court entered December
                                                  :   12, 2019 at No. 1716 WDA 2018,
               v.                                 :   quashing the appeal from Order of
                                                  :   the Court of Common Pleas of
                                                  :   Allegheny County entered
 JOSHUA WARDLAW,                                  :   November 5, 2018 at No. CP-02-
                                                  :   CR-0013708-2016.
                      Appellant                   :
                                                  :   ARGUED: October 21, 2020


                                  CONCURRING OPINION


JUSTICE DOUGHERTY                                 DECIDED: APRIL 29, 2021
       I join the majority’s well-reasoned opinion in its entirety. I write only to suggest it

may be prudent to instruct our rules committees — more specifically, our Appellate and

Criminal Procedural Rules Committees — to consider devising some mechanism for

providing notice to the Attorney General in cases, like this one, where a county district

attorney seeks to concede a legal issue before an appellate court.

       Our Constitution and statutory laws provide for the election of a district attorney in

each of our Commonwealth’s sixty-seven counties. See, e.g., PA. CONST. art. IX, §4

(county officers shall consist of, inter alia, district attorneys); 71 P.S. §732-206(a) (“the

district attorney shall be the chief law enforcement officer for the county in which he is

elected”). These district attorneys and their assistants generally prosecute criminal cases

which arise in the county from which the district attorney is elected, and they do so “in the

name of the Commonwealth[.]” 16 P.S. §1402(a). However, it is solely the Attorney
General who acts as “the chief law enforcement officer of the Commonwealth[,]” 71 P.S.

§732-206(a), and he is the only prosecutor elected on a statewide basis, see PA. CONST.

art. IV, §4.1 (“[a]n Attorney General shall be chosen by the qualified electors of the

Commonwealth”).

       Ordinarily, the interests of county district attorneys and the Attorney General are

in alignment, such that the representation by one prosecutorial body in a criminal appeal

naturally serves the interests of the others. But experience has taught us that this is not

always the case. District attorneys, who in theory represent the Commonwealth as a

whole but in reality are answerable for their prosecutorial decisions only to their county

constituents, may at times adopt a position that is not shared by other district attorneys

or the Attorney General. This incongruity can become problematic when the effect of the

resolution of a legal issue in an appeal will extend beyond the physical boundaries of any

one county. In these instances, a district attorney’s outlier position on a legal issue, if

accepted by the appellate court, will bind all other prosecutorial entities throughout the

Commonwealth regardless of whether they agreed with that position.

       This case serves as just one recent example of the potential harm that can arise

under the current system. In its brief and at oral argument, the district attorney in this

matter joined the appellant in asking us to reverse the Superior Court on the discrete legal

issue presented. Had we adopted this shared position — rather than overwhelmingly

rejected it — we would have tied the hands of all other prosecutors across the

Commonwealth. It seems to me that, to ensure the Commonwealth’s interests are

adequately represented when a legal issue in an appeal has statewide implications and

a county district attorney does not intend to advocate in opposition to the defense position,

the district attorney should be required to communicate that decision to the Attorney




                              [J-87-2020] [MO: Wecht, J.] - 2
General.1 Such a process would afford the Attorney General the opportunity to make a

more timely and reasoned assessment of whether his involvement in the case is

warranted, either by means of intervention or as an amicus curiae.2 And, such a process

would be neither novel within this Commonwealth, see, e.g., Pa.R.A.P. 521 (imposing a

duty on a party who draws into question the constitutionality of a statute in any matter in

an appellate court “to give immediate notice in writing to the Attorney General . . . of the

existence of the question”), nor outside of it, see generally Katherine Shaw, Friends of

the Court: Evaluating the Supreme Court’s Amicus Invitations, 101 CORNELL L. REV. 1533,

1565 (2016) (describing the United States Supreme Court’s practice of appointing amici

and observing that “[m]any amicus invitations involve what can be broadly described as

confessions of error — either an error by the government itself, as where the Solicitor

General’s office decides to disavow a position taken by litigators below, or an error by the

lower court or courts”).




1 The dissent believes we should not be concerned when a county district attorney’s views
on a legal issue in an appeal align with the defense, because “[t]he prosecutor’s duty to
seek justice trumps his or her role as an advocate to win cases for the Commonwealth.”
Dissenting Opinion at 7 n.6 (internal quotations and citation omitted). Respectfully, the
issue is not about winning cases or criticizing prosecutors who make good-faith
concessions in the interests of justice; it’s about ensuring an adequate opportunity for the
presentment of competing sides to a legal issue before the appellate tribunal that must
decide it, as contemplated by our adversary system’s design.
2 I recognize there already exists an avenue through which the Attorney General, or any
interested party, such as the Pennsylvania District Attorneys Association, may participate
as amicus curiae in an appeal. See Pa.R.A.P. 531. However, this rule requires that the
amicus brief “must be filed on or before the date of the appellant’s filing” where it does
“not support the position of any party[.]” Pa.R.A.P. 531(b)(4). If the Attorney General is
not aware that a county district attorney intends to concede a legal issue in a given appeal,
and the Attorney General disagrees with that position (i.e., he “will not support the position
of any party”), the deadline for filing a timely amicus brief may very well pass before the
Attorney General even realizes his involvement was necessary.


                              [J-87-2020] [MO: Wecht, J.] - 3
      Accordingly, while I join the majority’s excellent opinion in full, I would also take the

opportunity to formally invite the relevant rules committees to give this matter due

consideration.

      Justice Wecht joins this concurring opinion.




                             [J-87-2020] [MO: Wecht, J.] - 4

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