[J-69-2015] [MO: Dougherty, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

MELVIN KNIGHT,

Appellant

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No. 702 CAP

Appeal from the Judgment of Sentence 

entered on August 31, 2014 in the Court 

of Common Pleas, Westmoreland 

County, Criminal Division at No. CP-65-

CR-0000851-2010. Post Sentence 

Motions Denied July 16, 2014.

SUBMITTED: October 7, 2015

CONCURRING OPINION

JUSTICE BAER DECIDED: November 22, 2016

I join the majority opinion with the exception of Section V, and also write to 

elaborate on a point supporting the grant of relief. I agree that Appellant is entitled to a 

new penalty hearing as the Commonwealth conceded on the record that he had no 

previous criminal history, yet the jury declined to find the mitigating circumstance of no 

significant history of prior criminal convictions. 42 Pa.C.S. § 9711(e)(1). This 

disposition emanates from our decision in Commonwealth v. Rizzuto, 777 A.2d 1069 

(Pa. 2001), which held that “where a mitigating circumstance is presented to the jury by 

stipulation, the jury is required by law to find that mitigating factor.” Id. at 1089. The 

Commonwealth’s explicit concession during closing argument that Appellant has no 

prior criminal history is tantamount to a stipulation, thus, the mitigating factor has been 

established as a matter of law, and the jury was required to find that circumstance and

consider it in the weighing of aggravating and mitigating circumstances.
[J-69-2015] [MO: Dougherty, J.] - 2

As the Court did in Rizzuto, the majority frames its holding in terms of whether 

the absence of the criminal record was “undisputed.” See Slip Op. at 14 (stating that 

“[w]hen the absence of a [criminal] record is undisputed, the jury has no discretion but to 

find the objective circumstance, and specifically include it in any weighing of 

aggravators and mitigators.”); Rizzuto, 777 A.2d at 1089 (same). While I agree with 

this general assessment, I write separately to elaborate on what constitutes an 

“undisputed fact” in an effort to more thoroughly distinguish the established case law 

relied upon by the Commonwealth herein, which holds that a capital jury is not required 

to find a mitigating circumstance, even if the Commonwealth fails to present evidence 

rebutting the existence of that circumstance. See e.g. Commonwealth v. Diamond, 83 

A.3d 119, 134-35 (Pa. 2013) (rejecting the contention that the fact-finder was required 

to find the Section 9711(e)(3) mitigating circumstance when the Commonwealth 

presented no evidence to refute the mitigating factor because a jury is free to believe all, 

part, or none of the evidence presented).1 

Here, the sole evidence supporting the Section 9711(e)(1) mitigating 

circumstance was the testimony of Detective Verail that he examined Appellant’s 

criminal history and concluded that Appellant had not been convicted previously of 

felonies or misdemeanors. Absent the prosecutor’s explicit concession that Detective 

Verail’s review of Appellant’s criminal history was correct, I am unconvinced that the jury 

was required as a matter of law to find the Section 9711(e)(1) mitigating circumstance

because the jury was free to disbelieve the testimony presented, as a fact-finder has 

exclusive authority to make credibility determinations. Diamond, 83 A.3d at 134. Stated 

 

1

The mitigating circumstance set forth at 42 Pa.C.S. § 9711(e)(3) provides that the 

defendant’s capacity to appreciate the criminality of his conduct or to conform his 

conduct to the requirements of law was substantially impaired.
[J-69-2015] [MO: Dougherty, J.] - 3

differently, it was not the unrefuted testimony of Detective Verail that made the fact of 

Appellant’s lack of criminal history undisputed, but rather the Commonwealth’s 

concession in its closing argument that such fact was true. Accordingly, I agree with the 

majority that the prosecutor’s concession is jurisprudentially indistinguishable from the 

stipulation in Rizzuto, and, thus, established the mitigating circumstance as a matter of 

law. 

Additionally, I disassociate myself from Section V. of the majority opinion, entitled 

“Other Issues,” which offers guidance to the trial court on penalty phase claims that 

have become moot due to the grant of a new penalty hearing. It is well-established that 

“[w]here the issues in a case are moot, any opinion issued would be merely advisory 

and, therefore, inappropriate.” Stuckley v. Zoning Hearing Bd., 79 A.3d 510, 519 (Pa. 

2013) (citations omitted); see also Commonwealth v. Moore, 860 A.2d 88, 100 (Pa. 

2004) (holding that where a defendant is granted a new penalty hearing, all remaining 

penalty phase issues are rendered moot). Here, the majority expounds upon claims 

involving the admissibility of evidence during the penalty phase, while acknowledging 

that the trial court is not bound by the Court’s suggestions in this regard. Slip Op. at 

n.12 (stating that “[o]ur discussion of these issues should not be read as expressing any 

view on them, or on sub-issues we do not discuss”). While the majority finds that such 

issues “provided cause for concern,” Slip Op. at 20, there is simply no justiciable case 

or controversy warranting further comment on remaining penalty phase issues when

Appellant has been granted a new penalty hearing.