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

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

JOSHUA WARDLAW,

Appellant

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No. 15 WAP 2020

Appeal from the Order of the 

Superior Court entered December 

12, 2019 at No. 1716 WDA 2018, 

quashing the appeal from Order of 

the Court of Common Pleas of 

Allegheny County entered 

November 5, 2018 at No. CP-02-

CR-0013708-2016.

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 
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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.] - 3

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.] - 4

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.