Judges Opinions, — April 8, 2015 10:01 — 0 Comments

Commonwealth vs. Martin No. CP-38-CR-0000899-1993; CP-38-CR-0001079-1993

Crimes – First Degree Murder – Package Deal Plea Agreement – Stare Decicis – PCRA – Due Process – Contractual Nature of Plea Bargain – Specific Performance – Death Penalty – Fourteenth Amendment – Scrutiny and Enforcement of Plea Bargains – Sixth Amendment – Defendant’s Ability to Control Acceptance of Plea Bargain – Capital Sentencing Proceeding – Motion to Compel Specific Performance of Plea Agreement.

The Pennsylvania Supreme Court has held that stare decisis, or “the law of the case” doctrine does not preclude a court from revisiting a defendant’s entitlement to relief when the defendant raises a different legal question than the one previously decided, even though that defendant seeks the same relief.

Since the decisions of this Court and the Pennsylvania Supreme Court on Defendant’s PCRA addressed the propriety of the “package deal” plea agreement only in terms of the Eighth Amendment and the Defendant had not challenged, and neither court considered, the propriety and enforceability of the proposed agreement under the theories of contract and due process jurisprudence, the Court concluded that it was not precluded from considering the distinct legal questions raised by the Defendant’s present Motion.

The principles of contract law govern plea bargains. Although a plea agreement occurs in a criminal context, it remains contractual in nature and is to be analyzed under contract-law standards.

While Pennsylvania courts do not generally recognize a Defendant’s right to the specific performance of a plea agreement unless that agreement has been presented to and accepted by the trial court, the Superior Court has nonetheless recognized the judiciary’s discretionary power to specifically enforce an executory plea agreement when the Court finds that the interests of justice require it to do so.

When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

The Due Process Clause is not a code of ethics for prosecutors; its concern is with the manner in which persons are deprived of their liberty.

The Court found that the strict principles of contract law alone did not allow the Court to view the “package deal” term as an extraneous one that can be excised from the plea agreement. More specifically, the formation of a contract requires a meeting of the minds and the mind of the Commonwealth clearly expected to waive seeking the death penalty if and only if both Defendants pleaded guilty under the agreement. Consequently, the Court held that without such a meeting of the minds, there exists no true agreement for the Court to enforce under the strict guise of contract law.

The Court found that there is no controlling precedent in a Pennsylvania capital case in which a Defendant who never wavered in his desire to accept a plea agreement for life imprisonment proffered by the Commonwealth was deprived of the opportunity to do so by a condition outside his control and then ultimately sentenced to death. Consequently, the Court decided it had to resolve the Defendant’s claim as one of first impression, examining the standards of Due Process and their application to the plea bargaining process, within the context of a capital case.

The United State Supreme Court has repeatedly recognized that “death is different”. The penalty of death is qualitatively different from a sentence of imprisonment, however long. For this reason, the death penalty presents different and far more serious concerns than any other sanction.

The qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination. Indeed, in some instances, the Supreme Court has, in the interests of justice, been willing to overlook requirements that it would ordinarily impose in non-capital cases. Moreover, capital case review is progressively tightening, a reflection perhaps of the evolving standards of decency criterion. In sum, the protections afforded to capital case defendants are ever expanding and the circumstances under which the state may seek and impose the penalty are ever narrowing.

The Defendant’s right to Due Process of law is guaranteed by both the Pennsylvania and United States Constitutions.

Pennsylvania appellate courts have held that the phrase “law of the land” used in Article 1, Section 9 of the Constitution of Pennsylvania is synonymous with “Due Process”. As to the scope of protection afforded by this right, our Supreme Court has held that the rights guaranteed by this provision are essentially coextensive with those of the Fourteenth Amendment to the United States Constitution.

The Fourteenth Amendment provides that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law.

Due process is not susceptible to precise definition. In general, however, both Due Process Clauses embody the principle of fundamental fairness, entitling every individual to be free from arbitrary or oppressive government conduct. The due process inquiry, in its most general form, entails an assessment as to whether the challenged proceeding or conduct offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental and that defines the community’s sense of fair play and decency.

Due Process prevents the government from engaging in conduct which shocks the conscience, or interferes with rights implicit in the concept of ordered liberty.

The decision as to whether to enter into plea negotiations is a function of prosecutorial discretion and the Court will not review such decisions unless such decisions are based upon an invidious classification such as race, religion or national origin. However, when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution.

The United States Supreme Court, while recognizing the value of plea bargaining in the criminal justice system, noted that all of these considerations presuppose fairness in securing agreement between an accused and a prosecutor. This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances.

The Superior Court has held that plea bargaining is not some adjunct to the criminal justice system; it is the criminal justice system. Accordingly, it is critical that plea agreements are enforced to avoid any possible perversion of the plea bargaining system.

Both the scrutiny to which the plea bargaining process is subject and the scope of Constitutional protections the appellate courts are willing to apply in conducting that scrutiny are expanding.

The United States Supreme Court has held that the Sixth Amendment right to effective assistance of counsel extends to the negotiation and consideration of potential plea bargains, even those that were never communicated to the defendant and lapsed without being presented in court.

The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.

Precedent requires the application of Sixth Amendment protections to the plea bargaining process, even before an offer by the prosecution is communicated to a defendant, agreed to by the parties, or presented to the court..

There is also precedent for applying Fourteenth Amendment due process protections to plea bargain negotations.

A plea agreement is a contract, but a contract in which special due process concerns for fairness and the adequacy of procedural safeguards obtain.

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is patently unconstitutional. But, in the give and take of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.

The plea bargaining process itself is subject to Constitutional and specifically due process scrutiny, even when an offer has not been accepted by a defendant or presented in Court.

“Package deal” plea agreements have been the subject of due process and general Constitutional analysis, but not in the manner at issue in the instant case.

A prosecutor’s offer during plea bargaining of adverse or lenient treatment for some person other than the accused might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider.

In the absence of binding precedent to the contrary, with an awareness of the continuing trends in criminal Constitutional law and death penalty jurisprudence, and in light of the standards for evaluating due process claims as articulated above in this Opinion, the Court held as follows: Once the Commonwealth opts to make a plea offer, its offer must comport with the protections of the Constitution, including those of Due Process and, in this case, the Commonwealth’s insistence on the fulfillment of the “package deal” term in the proffered plea agreement violated the Defendant’s due process rights because it impermissibly conditioned the Defendant’s ability to accept the agreement for a sentence of life imprisonment without exposure to the death penalty upon something outside of the Defendant’s ability to control, i.e. his co-defendant also pleading to a sentence of life imprisonment.

The Court further stated that a defendant must be free to accept or reject the prosecution’s offer; such offer should not be dependent on a co-defendant’s whim. This did not seem fundamentally fair to the Court. It further appeared to the Court that rather than being part of a process of ordered liberty, plea bargains of the kind at issue can lead to outcomes that seem random and arbitrary and thereby taint and pervert the plea bargaining process. Finally, the idea that the Commonwealth determined that justice could be satisfied by a sentence of life imprisonment instead of death and made that offer to the Defendant, only to effectively withdraw that offer because his co-defendant threw down her pen on the morning of trial and decided to roll the dice with a jury, did, indeed, shock the Court’s conscience.

The Court here declined to find that a subsequent capital sentencing proceeding would necessarily serve as a backstop inoculating the Constitutional violation in the pretrial plea bargaining process in this case. The Court noted that absent its intervention to remedy the due process violation suffered by Defendant in 1994, it is possible that outcome could occur again.

Since Defendant’s guilt on the underlying first degree murder charge is no longer at issue, and there is no plea to that charge to be made, and his case is before the Court by virtue of a successful PCRA only for a new sentencing phase, the Court noted that there is no entitlement to specific performance and there is no ability to give either side the precise benefit of the bargain proposed in 1994. Consequently, believing that the interests of justice warranted the exercise of its equitable powers and in order to achieve fundamental fairness as a matter of judicial discretion, the Court held that the appropriate remedy for the violation of Defendant’s due process rights was for it to enter an Order finding Defendant was entitled to a sentence of life imprisonment on the charge of first degree murder.

In so holding, the Court noted that although the Court’s decision did not undo the expenditure of resources and effort invested by both the Commonwealth and the Defendant in the original trial, it does spare both parties the additional and significant effort and expense of conducting a new sentencing hearing, while achieving the Commonwealth’s additional goal of efficient resolution of the Defendant’s case.

The Court further observed that when the State pursues the death penalty in a manner that appears arbitrary and fundamentally unfair–as in the instant case–it risks losing altogether the availability of the penalty in the future.

The Court entered an Order indicating an intention to schedule a sentencing proceeding for the Defendant for the purposes of imposing sentence consistent with the holding of this Opinion.

The Court’s Order further certified this matter for interlocutory appeal, indicating that it involved a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the Order may materially advance the ultimate termination of the matter. Any party wishing to pursue interlocutory appeal of the Court’s Order was instructed to seek permission to appeal with the Prothonotary of the Appellate Court under the guidelines set forth by Pa.R.A.P. 1311 within 30 days of the Order. Any party filing a Petition for Permission to Appeal was ordered to concurrently provide a copy of the Petition for Permission to the Court. In the event neither party pursues interlocutory appeal of the Court’s Order within the 30-day time period, the Court stated that it would promptly schedule a sentencing proceeding for the Defendant consistent with the holding of this Opinion.

Defendant’s Motion to Compel Specific Performance of Plea Agreement. C.P. of Lebanon County, Criminal Division, No. CP-38-0000899-1993 and CP-38-0001079-1993.

David Arnold, Esquire, and Nichole Eisenhart, Esquire, for Commonwealth

Brian Deiderick, Esquire, Christopher Walters, Esquire, and Gary Proctor, Esquire, pro hac vice, for Defendant

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

CP-38-CR-0000899-1993

CP-38-CR-0001079-1993

COMMONWEALTH OF PENNSYLVANIA

v.

BRADLEY A. MARTIN

Motion to Compel Specific Performance of Plea Agreement

APPEARANCES:

For the Commonwealth: David Arnold, Esq.

Nichole Eisenhart, Esq.

For the Defendant: Brian Deiderick, Esq.

Christopher Walters, Esq.

Gary Proctor, Esq., pro hac vice

OPINION BY EBY, S.J., December 5, 2014

Before the Court is the Defendant’s Motion to Compel Specific Performance of Plea Agreement Whereby It Was Agreed that the Commonwealth Would Waive Any Request for the Death Penalty. The Defendant’s Motion contends that the “package deal” plea agreement offered by the Commonwealth prior to the Defendant’s 1994 murder trial was unconscionable and violative of Due Process, because it conditioned the Defendant’s ability to plead guilty to first degree murder in exchange for a life sentence upon the agreement of his unwilling co-Defendant, Carolyn King, to do the same. After careful and deliberate consideration of what we believe to be a case of first impression in this Commonwealth, we find that the proffered agreement as to the Defendant, who was prevented from accepting its terms solely on the basis of a whim of his co-defendant, does indeed violate of the protections of Due Process afforded by the United States and Pennsylvania Constitutions.

Factual and Procedural History

The Defendant’s case is currently before this Court for purposes of a new penalty phase hearing following the Defendant’s successful Petition under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9545. The Defendant’s capital sentence became final on January 18, 2000, with a denial of certiorari by the United States Supreme Court. Martin v. Pennsylvania, 528 U.S. 1120 (2000). On February 14, 2000, the Defendant filed a timely pro se PCRA Petition, which was then amended and supplemented by numerous counseled petitions alleging errors in both the guilt and penalty phases of the Defendant’s 1994 trial. Following an evidentiary hearing held September 9-13, 2002, this Court, on March 4, 2004, dismissed all of Defendant’s claims except one. We found merit to Defendant’s claim that his trial counsel had been ineffective in failing to investigate and present, as mitigating evidence during the penalty phase, the mental illness diagnosis of the Defendant. On that ground, we vacated the Defendant’s death sentence and granted the Defendant a new sentencing hearing.

Both the Defendant and the Commonwealth appealed. The Defendant appealed this Court’s dismissal of his guilt phase claims for relief, and the Commonwealth challenged our grant of a new sentencing hearing. On September 29, 2010, the Supreme Court affirmed this Court’s Order of March 4, 2004, granted the Defendant a new sentencing hearing on the mitigation issue, and dismissed his other claims for relief. The Supreme Court then remanded the case back to this Court for a new penalty phase hearing.

On November 16, 2011, the District Attorney filed a Supplemental Notice of Aggravating Circumstances, which indicated an intention to seek an aggravating circumstance not sought at Defendant’s original trial: 42 Pa.C.S.A. 9711(d)(11) (the defendant has been convicted of another murder, committed either before or at the time of the current offense). The Defendant subsequently sought an extension of time to respond to the prosecution’s Supplemental Notice. By order dated December 9, 2011, this Court extended the time to July 1, 2012 for the Defendant to respond to the Supplemental Notice, as well as file additional pretrial motions.

Pursuant to the Court’s December 9, 2011 Order, the Defendant filed five pretrial motions: a Motion for “Life Without Parole” Instructions in Voir Dire and Final Jury Instructions; a Motion to Quash Aggravating Circumstances 42 Pa.C.S. §9711 (d)(9) and (d)(11); a Motion to Bar Use of the Death Penalty Against a Severely Mentally Ill Defendant; a Motion to Bar Death Penalty; and a Motion to Bar Death Penalty Because It is Unconstitutional as Applied. The Commonwealth filed timely responses to all five motions, and both parties submitted briefs and memoranda supporting their respective positions.

On October 19, 2012, all parties, including the Defendant, appeared before the Court for Oral Argument on the Defendant’s pretrial motions. On December 11, 2012, we issued an Order and Opinion disposing of those motions as follows: 1) Defendant’s Motion for “Life Without Parole” Instructions in Voir Dire and Final Jury Instructions, GRANTED; 2) Defendant’s Motion to Quash Aggravating Circumstances 42 Pa.C.S. §9711 (d)(9) and (d)(11), DENIED as to the (d)(9) aggravator and GRANTED as to the (d)(11) aggravator; 3) Defendant’s Motion to Bar Use of the Death Penalty Against a Severely Mentally Ill Defendant, DENIED; 4) Defendant’s Motion to Bar Death Penalty, DENIED; and 5) Defendant’s Motion to Bar Death Penalty Because It is Unconstitutional as Applied, DENIED.

As the parties continued to prepare for a resentencing hearing through the acquisition of experts, additional investigation, and the negotiation of a stipulation of regarding the guilt phase evidence to be presented to the sentencing jury, the Defendant filed seven additional substantive motions: 1) A Request for the Production of Documents, including documents related to plea bargain discussions between the parties in 1994; 2) A Motion to Compel Production of Documents, filed after the Commonwealth did not respond to the Request for Production; 3) A Motion for Hearing on Defendant’s Waiver of Jury Resentencing; 4) A Motion to Apply the Law and Rules of Criminal Practice in Effect in 1994 and Exclude Victim Impact Statement; 5) A Motion to Compel Disclosure under Brady, Pa.R.Crim.P. 573, and PA Rule of Professional Conduct 3.8(b); 6) A Motion to Remove Possible Death Sentence, based upon alleged prosecutorial vindictiveness; and 7) the instant Motion to Compel Specific Performance of Plea Agreement Whereby It Was Agreed that the Commonwealth Would Waive Any Request for the Death Penalty (hereafter “Motion to Compel Specific Performance of Plea Agreement.”) With the exception of the initial Request for Production of Documents, the Commonwealth filed responses to all of the Defendant’s Motions delineated above.

At a status conference on April 30, 2014, the parties were able to stipulate regarding the discoverability of certain of the items requested by the Defendant. As to the remainder of the items requested by the Defendant, we indicated by Order dated May 16, 2014, that we intended to conduct an in camera review of the remaining disputed items. The Court completed its in camera review and entered an Order on June 10, 2014, indicating which items were discoverable and which items were privileged and not otherwise discoverable under Brady. Under the supervision of the Court, the Defendant has since had the opportunity to review and copy those documents deemed discoverable.

On May 20, 2014, the Court, with the agreement of the Commonwealth, entered an Order granting the Defendant’s Motion to Apply the Law and Rules of Criminal Practice in Effect in 1994 and Exclude Victim Impact Statement. On June 9, 2014, the Court entered an Order denying Defendant’s Motion for Hearing on Defendant’s Waiver of Jury Resentencing. On July 31, 2014, the Court denied the Defendant’s Motion to Remove Possible Death Sentence.

As a result, the only substantive issue that remains outstanding before the Court, then, is the Defendant’s Motion to Compel Specific Performance of Plea Agreement. The facts underlying Defendant’s Motion are not in dispute. At Oral Argument on July 31, 2014, both the Commonwealth and the Defendant stipulated to the following facts as recited by the Court:

My understanding is that there’s not in dispute the questions as to whether prior to trial the Commonwealth offered a plea agreement to both Defendants for life imprisonment in exchange for their guilty pleas to a first degree murder determination. That offer was conditioned upon a [plea] by both Defendants. There was a transfer of an acceptance by Defendant Martin. There was also a notation by Defendant King that it was not accepted. The plea agreement did not go forward. So the offer for Defendant Martin was not consummated. The factor of keeping that from occurring was the fact that Defendant King refused to accept the plea agreement and to serve a life sentence. That was the only factor that kept that plea agreement from being presented to the Court. Lastly, obviously, the Defendants Martin and King proceeded then to trial and subsequent conviction.

(N.T. July 31, 2014 at 2-3.)

Additional submissions to the Court, attached as exhibits to the Defendant’s Motion to Compel Specific Performance of Plea Agreement to establish the factual background of the plea bargaining process between the parties, have not been contested by the Commonwealth. Those exhibits indicate the following:

1) The “package deal” plea bargain was first formally communicated to the parties by correspondence from then District Attorney Bradford Charles to counsel for both defendants on February 7, 1994. (Exhibit A, Defendant’s Motion to Compel Specific Performance of Plea Agreement.)

2) Upon receiving the Commonwealth’s offer, Bradley Martin immediately agreed to plead under the Commonwealth’s terms, but Carolyn King refused to plead, against the advice of her counsel. (Exhibit C, Defendant’s Motion to Compel Specific Performance of Plea Agreement.)

3) Bradley Martin and his counsel over a period of months attempted to persuade Carolyn King to accept the Commonwealth’s offer, but were ultimately unsuccessful. (Exhibit C, Defendant’s Motion to Compel Specific Performance of Plea Agreement.)

4) On September 12, 1994, the District Attorney rejected an alternative plea bargain proposed by Carolyn King’s attorney in which King would agree to plead to third degree murder and Bradley Martin would plead to first degree murder in exchange for a sentence of life imprisonment. (Exhibit B, Defendant’s Motion to Compel Specific Performance of Plea Agreement.)

5) On September 20, 1994, Bradley Martin’s attorney indicated in correspondence to the District Attorney that Martin remained willing to plead under the Commonwealth’s terms for a “package deal” plea to first degree murder, but Carolyn King continued to refuse to plead to first degree murder. Martin’s attorney asked that the District Attorney consider permitting Martin to plead to first degree murder for a sentence of life imprisonment and permit Carolyn King to plead to something less in order to resolve both cases in a judicious manner. (Exhibit D, Defendant’s Motion to Compel Specific Performance of Plea Agreement.)

6) On September 30, 1994, the eve of trial, Assistant District Attorney Donna Brightbill faxed counsel for both Defendants correspondence advising that “any and all plea agreement discussions and offers which representatives from this office previously had with you are hereby withdrawn” because “[t]he discussions regarding a possible plea agreement were made in an effort to save the county of Lebanon from expenses such as air travel and accommodations for our out-of-town witnesses”, and the avoidance of those expenses was no longer possible. (Exhibit F, Defendant’s Motion to Compel Specific Performance of Plea Agreement.)

7) Despite the prosecution’s September 30, 1994 correspondence, even on the morning trial was to commence, the Commonwealth remained ready to accept a plea to first degree murder in exchange for a sentence of life imprisonment for both defendants. As the Defendant and his attorney sat at counsel table in the courtroom in which jury selection was scheduled to begin, Carolyn King “had the plea agreement in front of her, had her pen out to sign it which was not the first time she had her pen out to sign the agreement, and then at the last minute she just tossed the pen back on the table and we went to trial.” (Exhibit E, Defendant’s Motion to Compel Specific Performance of Plea Agreement.)

8) The Commonwealth’s “package deal” plea offer remained open throughout the jury selection process, and Bradley Martin remained willing to plead under its terms. His co-defendant, Carolyn King, continued to decline to plead to first degree murder, and trial began. (Exhibit C, Defendant’s Motion to Compel Specific Performance of Plea Agreement.)

Both the Defendant and the Commonwealth have had ample opportunity to present their respective positions on the instant Motion to the Court. The Defendant argues that he should be entitled to specific performance of the plea agreement, if not as of right, as a matter of judicial discretion, based upon the principles of both contract and Constitutional law. Under the contract law theory, the Defendant argues that he accepted the plea agreement offered by the Commonwealth and that therefore this Court has the power to specifically enforce that agreement. While conceding that he was prevented, by his co-defendant, from fulfilling all terms of the Agreement, the Defendant argues that the term he could not fulfill (the “package deal” term) is an unconscionable one that can be severed from the agreement while the rest of the agreement is specifically enforced.

The Defendant also asserts that the Commonwealth’s “package deal” plea agreement, once agreed to by Bradley Martin but refused by Carolyn King, violated the principles of Due Process, which are heightened in death penalty cases. The Defendant contends the Commonwealth’s offer, because it conditioned fulfillment of the agreement on a condition beyond the control of Bradley Martin, violated the concerns of fundamental fairness. He argues it was fundamentally unfair and unconscionable for the Commonwealth to determine, after consultation with law enforcement and the victim’s family, that a sentence of life imprisonment would satisfy the interests of justice in the case, and yet later still pursue a sentence of death for Defendant, despite his repeated requests to plead guilty for life imprisonment, solely on the basis that his co-defendant King would not also plead.

In response, the Commonwealth argues that the Defendant is not entitled to specific performance of the plea agreement, because the Defendant failed to accept its terms. The District Attorney points out the language of the Commonwealth’s offer very specifically indicated the intent to waive a request for the death penalty only if both Bradley Martin and Carolyn King pleaded guilty to first degree murder. Because Carolyn King did not agree to plead to first degree murder, Bradley Martin never accepted the specific terms proposed in the Commonwealth’s offer. Thus, no contract existed between the parties; there existed instead an offer not accepted by Bradley Martin and a counteroffer (Bradley Martin’s offer to plead independently of Carolyn King) not accepted by the Commonwealth. Therefore, the Commonwealth argues, contract principles and remedies cannot afford the Defendant the relief he seeks.

Further, the Commonwealth emphatically argues that the Defendant’s challenge to the “package deal” plea agreement has already been decided by this Court and affirmed by the Supreme Court in resolving the Defendant’s PCRA action. Consistent with those decisions, the Commonwealth argues that, prior to the entry of a plea and its acceptance by the Court, a defendant has no right to specific performance of a plea agreement. As to the Defendant’s claims that the “package deal” plea bargain implicated Constitutional concerns, particularly ones of Due Process, the Commonwealth asserts that the Defendant’s due process claim for relief is barred by the doctrine of stare decisis in light of the previous decision of this Court and that of the Supreme Court affirming our decision in the PCRA action.

With this summary of the history of the case and the positions of the parties in mind, we turn to the issues presented by the Defendant’s Motion.

Discussion

I. The Applicability of the Previous PCRA Decision

Because the Commonwealth, in opposing the Defendant’s Motion for Specific Performance, has argued the controlling nature of the decisions of this Court and the Supreme Court in the Defendant’s preceding PCRA action, we begin with a review of our decision and the Supreme Court’s affirmance thereof. The Defendant’s PCRA presented us with sixteen issues, of which one, the Commonwealth contends, is dispositive of the motion currently before us. In 2002, we wrote:

The second issue that Defendant raises in support of his PCRA Petition is that his death sentence must be vacated because the Commonwealth conditioned its offer of a plea agreement of life imprisonment without the possibility of parole upon the acceptance of the plea agreement by King. Defendant alleges that the Commonwealth offered him and King a sentence of life imprisonment in return for pleas of guilty. However, Defendant argues that the Commonwealth only would accept the plea if both Defendant and King agreed to take it. Defendant argues that he agreed to accept the plea agreement, but that King refused to do so. Because the Commonwealth’s plea agreement effectively left the decision regarding whether Defendant could be sentenced to life imprisonment or to death at the whim of his Co-Defendant, Defendant argues that his sentence of death has been imposed arbitrarily in violation of the Eighth Amendment of the United States Constitution. Defendant also argues that all prior counsel were ineffective for failing to raise this issue at an earlier stage in the proceeding.

We conclude that Defendant’s argument on this point is not cognizable pursuant to the PCRA…

Commonwealth v. Bradley Martin, L.C.C.C.P. Nos. CP-38-CR-0000899-1993, CP-38-CR-0001079-1993 at 19-20 (January 3, 2002) (emphasis added).

Our 2002 Opinion denying Defendant PCRA relief on this issue clearly did so under the rubric of the PCRA. We explained:

Defendant fails to aver in his Petition that he is innocent of the killing of Goodman….Defendant also fails to aver that a sentence of death is an illegal sentence for the crime of first degree murder. As Defendant fails to aver either of these prerequisites to PCRA relief, Defendant is not eligible for relief pursuant to the PCRA.

Id. at 19-20. With the threshold determination that Defendant’s claim of error did not meet either of the prerequisites for PCRA relief, our inquiry was concluded. There was no need for us to consider the merits of Defendant’s underlying claim. We did, in dictum, go on to say:

Moreover, even if this claim were cognizable pursuant to the PCRA, Defendant would still not be entitled to relief. The Superior Court has held that:

“The Commonwealth is never under any legal obligation to plea bargain with any defendant. Stated another way[,] a defendant has no constitutional right to a plea bargain arrangement….The decision as to whether to enter into plea negotiations is a function of prosecutorial discretion[,] and we will not review such decisions unless such decisions are based upon an invidious classification such as race, religion or national origin.” Commonwealth v. McElroy, 665 A.2d 813, 816 (Pa.Super. 1995), citing Commonwealth v. Stafford, 416 A.2d 570, 573 (Pa.Super. 1979). This holding follows from the well-recognized principle that a District Attorney has a general and widely recognized power to conduct criminal litigation and prosecutions on behalf of the Commonwealth and to decide whether and when to prosecute, and whether and when to continue or to discontinue a case. McElroy at 816, citing Commonwealth v. Stipetich, 652 A.2d 1294, 1295 (Pa. 1995).

Finally, no plea agreement exists unless and until it is presented to the court. McElroy at 816, citing Commonwealth v. Porreca, 595 A.2d 23, 26 (Pa. 1991). Where a plea agreement has not been entered of record and has not been accepted by the court, the Commonwealth is not required to abide by the terms of the plea agreement. McElroy at 816, citing Commonwealth v. Spence, 627 A.2d 1176, 1184 (Pa. 1993). Prior to the entry of a guilty plea, the defendant has no right to specific performance of the oral plea agreement. Id.

In this case, it was well-within the District Attorney’s discretion to condition the acceptance of Defendant’s guilty plea upon the agreement of King to take the plea agreement, as the District Attorney is vested with the power to decide whether and when to prosecute and whether and when to continue or to discontinue a case. Defendant has presented no evidence that the Commonwealth’s conditioning of the plea agreement in this case was based upon an invidious classification such as race, religion or national origin. Therefore, the Commonwealth’s decision regarding Defendant’s plea was well within his discretion.

Further, the record reflects that a plea agreement never was presented to the Court or accepted by the Court. Since no plea agreement was presented to or accepted by the Court, the plea, in effect, never existed. Accordingly, Defendant was in no way entitled to specific performance of the plea agreement. For these reasons, even if Defendant’s claim were cognizable pursuant to the PCRA, Defendant is not entitled to PCRA relief regarding this argument.

Id. at 20-21. It is this dictum upon which the Commonwealth relies for its argument that the Defendant’s claim has already been decided by this Court and upheld by the Supreme Court.

In 2010, the Pennsylvania Supreme Court affirmed our denial of PCRA relief on the “package deal” plea bargain issue. However, the Court specified in its decision that the Defendant had sought relief on the basis that “the decision regarding whether he could be sentenced to life imprisonment was arbitrarily decided by King in violation of the Eighth Amendment.” Commonwealth v. Martin, 607 Pa. 165, 195-96, 5 A.3d 177, 194-95 (2010). The Court noted that the Defendant presented no evidence that the conditional plea agreement was based upon inappropriate considerations such as race, religion or national origin. Additionally, the Court repeated our conclusion in dictum, that because the plea agreement was never presented to nor accepted by the trial court, it never existed; it was, the Supreme Court opined, “at most an offer not accepted.” Id. at 196, 5 A.3d at 195.

Based upon our close review of both our 2002 PCRA Opinion and the 2010 Opinion of the Supreme Court affirming it, we find that those decisions are not controlling in our consideration of the Motion currently before us. First, they were decided under the restrictive rubric of the PCRA. Second, any language beyond our determination that the Defendant did not state a claim cognizable under the PCRA is dictum and not controlling. Third and perhaps most importantly, the instant Motion seeks relief on two bases for relief not argued or pursued by the Defendant in his PCRA litigation: 1) a remedy based upon the equitable principles of contract law and 2) a remedy based upon a violation of Due Process, as guaranteed by both the United States and Pennsylvania Constitutions.

The Pennsylvania Supreme Court has held that stare decisis, or “the law of the case” doctrine, does not preclude a court from revisiting a defendant’s entitlement to relief when the defendant raises a different legal question than the one previously decided, even though that defendant seeks the same relief. In Commonwealth v. Wright, 609 Pa. 22, 14 A.3d 798 (2011), the Court explained:

The “law of the case” doctrine which we discussed in Starr, supra, and which was relied upon by the Superior Court in Young as the basis for its holding, does not compel such a conclusion. In Starr, we emphasized that, under the law of the case doctrine, “a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of that same court or by a higher court in the earlier phases of the matter”… However, this doctrine applies only where a court is later asked to consider the same question decided by another court of equivalent or higher jurisdiction.

Id. at 53, 14 A.3d at 817 (emphasis in original). The decisions of this Court and the Pennsylvania Supreme Court on Defendant’s PCRA addressed the propriety of the “package deal” plea agreement only in terms of the Eighth Amendment. At that time, the Defendant did not challenge, and neither court considered, the propriety and enforceability of the proposed agreement under the theories of contract and due process jurisprudence. Therefore, we are not precluded, as the Commonwealth has argued, from considering the distinct legal questions raised by the Defendant’s present Motion, and we will proceed to consider the substantive merits of the bases for relief he asserts.

II. Defendant’s Claim for Relief Based Upon Contract Law

The Defendant asserts, and we agree, that the principles of contract law govern plea bargains. In Commonwealth v. Kroh, 440 Pa.Super. 1, 654 A.2d 1168 (1995), the Superior Court explained: “Although a plea agreement occurs in a criminal context, it remains contractual in nature and is to be analyzed under contract-law standards.” Id. at 9-10, 654 A.2d at 1172 (quoting United States v. Hall, 730 F.Supp. 646, 650 (M.D.Pa.1990). We also agree with the Defendant that, while Pennsylvania courts do not generally recognize a Defendant’s right to the specific performance of a plea agreement unless that agreement has been presented to and accepted by the trial court, the Superior Court has nonetheless recognized the judiciary’s discretionary power to specifically enforce an executory plea agreement when the Court finds that the interests of justice require it to do so.

In Commonwealth v. Mebane, 2012 Pa. Super. 238, 58 A.3d 1243 (2012), the Superior Court affirmed a trial court decision to specifically enforce a plea agreement that was withdrawn by the prosecution on the morning the plea agreement and the defendant’s plea were to be tendered in court. In upholding the decision of the trial court to give the defendant the benefit of his bargain, the Superior Court conducted an extensive analysis of precedent governing this issue. The Court noted:

This court has previously interpreted Pa.R.Crim.P. 590 in Commonwealth v. McElroy, 445 Pa.Super. 336, 665 A.2d 813 (1995), as follows:

This Rule has been interpreted by our [S]upreme [C]ourt to mean that no plea agreement exists unless and until it is presented to the court. Commonwealth v. Porreca, 528 Pa. 46, 595 A.2d 23 (1989 [1991] ). Our [S]upreme [C]ourt has also held that “[w]here a plea agreement has been entered of record and has been accepted by the trial court, the [Commonwealth] is required to abide by the terms of the plea agreement.” Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176 (1993) (rehearing denied). (Emphasis supplied). The Spence court further cautioned: “However, prior to the entry of a guilty plea, the defendant has no right to specific performance of an ‘executory’ agreement.” At 249, 627 A.2d at 1184. (Emphasis supplied).

*1246 McElroy, 665 A.2d at 816. The Spence decision was itself heavily reliant upon two landmark U.S. Supreme Court cases:

Where a plea agreement has been entered of record and accepted by the trial court, the state is required to abide by the terms of the plea agreement. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). However, prior to the entry of a guilty plea, the defendant has no right to specific performance of an “executory” agreement. Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984) [disapproved of by Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) ].3

Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176, 1184 (1993).

Here, the keystone of the Commonwealth’s argument is premised upon the language by this Court in McElroy, deriving from language found in our Supreme Court’s ruling in Porreca, standing for the proposition that a plea agreement does not exist until it is presented in open court. However, this characterization does not originate from either U.S. Supreme Court precedent, nor any prior precedent of the Pennsylvania Supreme Court, but rather first appears in the Porreca decision in a footnote. The trial court, in supporting its equitable enforcement of the plea agreement in this case, relies on Santobello and Mabry, the U.S. Supreme Court decisions at the heart of both our decision in McElroy and our Supreme Court’s decision in Spence.

In Santobello, part of the plea negotiations included a promise that the district attorney would not make a sentencing recommendation (something it would otherwise have the prosecutorial discretion to do). Santobello, 404 U.S. at 258, 92 S.Ct. 495. Santobello withdrew his not-guilty plea and pleaded guilty. Id. Apparently, no mention of the promise to refrain from a sentencing recommendation was placed on the record during the plea. Id. Due to delays in preparing a pre-sentence report, however, a sentencing hearing was not immediately held. Id. In the interim, Santobello acquired new counsel, who in turn filed a motion to withdraw the plea in light of new suppression claims that came to light (stemming from a claim that evidence obtained from an illegal search had not been disclosed by the prosecutor) and raised those new claims in additional motions. Id. The court denied all the new motions raised by the new attorney, including the motion to withdraw the guilty plea, and then scheduled a sentencing hearing. By that time, a new district attorney was handling the case. Id. at 259, 92 S.Ct. 495. The new district attorney made a sentencing recommendation, contrary to the oral agreement. Id. When raised by counsel, the district attorney stated that the promise had not been made, but even if it had, it was never made part of the record before or during the plea hearing. Id. The court sentenced Santobello to 1 year. Id. at 260, 92 S.Ct. 495. At a later stage during the appeal, the district attorney admitted the promise had been made, though continued to assert that it had never been made part of the record. Id. at 262, 92 S.Ct. 495.

The Court in Santobello determined that:

This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances *1247 will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

On this record, petitioner “bargained” and negotiated for a particular plea in order to secure dismissal of more serious charges, but also on condition that no sentence recommendation would be made by the prosecutor. It is now conceded that the promise to abstain from a recommendation was made, and at this stage the prosecution is not in a good position to argue that its inadvertent breach of agreement is immaterial. The staff lawyers in a prosecutor’s office have the burden of “letting the left hand know what the right hand is doing” or has done. That the breach of agreement was inadvertent does not lessen its impact.

We need not reach the question whether the sentencing judge would or would not have been influenced had he known all the details of the negotiations for the plea. He stated that the prosecutor’s recommendation did not influence him and we have no reason to doubt that. Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration. The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty. We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.

Id. at 262–63, 92 S.Ct. 495.

In Mabry, an offer was extended to the defendant for a 21–year sentence to run concurrent to other sentences Mabry was serving. Mabry, 467 U.S. at 506, 104 S.Ct. 2543. When Mabry attempted to convey his acceptance, the prosecutor withdrew the offer, and instead offered a 21–year consecutive sentence. Id. Mabry then pleaded guilty, and appealed in an attempt to enforce the terms originally offered but later withdrawn by prosecutors. Id. The U.S. Supreme Court held:

Santobello demonstrates why respondent may not successfully attack his plea of guilty. Respondent’s plea was in no sense induced by the prosecutor’s withdrawn offer; unlike Santobello, who pleaded guilty thinking he had bargained for a specific prosecutorial sentencing recommendation which was not ultimately made, at the time respondent pleaded guilty he knew the prosecution would recommend a 21–year consecutive sentence. Respondent does not challenge the District Court’s finding that he pleaded guilty with the advice of competent counsel and with full awareness of the consequences—he knew that the prosecutor would recommend and that the judge could impose the sentence now under attack. Respondent’s plea was thus in no sense the product of governmental deception; it rested on no “unfulfilled promise” and fully satisfied the test for voluntariness and intelligence.

Thus, because it did not impair the voluntariness or intelligence of his guilty plea, respondent’s inability to enforce *1248 the prosecutor’s offer is without constitutional significance. Neither is the question whether the prosecutor was negligent or otherwise culpable in first making and then withdrawing his offer relevant. The Due Process Clause is not a code of ethics for prosecutors; its concern is with the manner in which persons are deprived of their liberty. Here respondent was not deprived of his liberty in any fundamentally unfair way. Respondent was fully aware of the likely consequences when he pleaded guilty; it is not unfair to expect him to live with those consequences now.

Id. at 510–11, 104 S.Ct. 2543 (footnotes omitted).

Against this backdrop, the Commonwealth asserts that Mebane has no right to enforcement of the plea offer made by the prosecutor because the plea agreement did not “exist” until it was presented in open court. The Commonwealth’s argument fails on two fronts. First, simply because Mebane does not have a right to specific enforcement of the agreement does not necessarily deprive the trial court of the discretion to enforce the plea agreement in circumstances where enforcement is in the interest of justice. Second, the existential question of whether an agreement exists prior to its presentment in open court may be relevant to, but not necessarily dispositive of, the determination of whether enforcement is justified as a matter of judicial discretion rather than as a matter of right.

The language in Porreca relied upon by the Commonwealth, suggesting that a plea agreement does not exist until it has been presented in open court (hereinafter “the McElroy/Porreca rule”), was not supported by citation to any legal authority, nor was it dispositive of the issues in that case. It was only dicta. This Court’s suggestion in McElroy that Porreca provided a definitive interpretation of Pa.R.Crim.P. 590 as applied to discretionary enforcement of an agreement rather than enforcement as a matter of right is suspect. The relevant language in the statute merely requires that “[w]hen counsel for both sides have arrived at a plea agreement, they shall state on the record in open court, in the presence of the defendant, the terms of the agreement….” The statute says nothing regarding the “existence” of the agreement prior to the required memorialization. Again, it may be true that memorialization in open court of the terms of a plea agreement is required for a defendant to successfully assert a right to specific enforcement of the agreement; however, that is not the case before us.

Here, we are presented with a unique set of circumstances wherein the trial court determined that enforcement of a plea agreement was warranted in the interest of justice, as a matter of judicial discretion, and not as a matter of right to specific performancea distinction that has not been addressed in prior decisions citing the Porreca/McElroy rule. We therefore decline to extend the Porreca/McElroy rule, assuming it is not mere dicta, beyond situations where a claim is made by a defendant that a right exists to specific performance of a plea agreement.

Nothing in the Santobello or Mabry decisions suggests that the trial court’s actions in this case constitute an abuse of discretion or an error of law. Indeed, the lynchpin of the Commonwealth’s argument is the Porreca/McElroy rule, which we find both illogical and inapplicable in this instance, even if we were to ignore that it is at best a rule of thumb, if not mere dicta. The trial court acknowledged that a “defendant does not have a right to specific performance of executory agreements …” but, nonetheless, determined that the *1249 “unique circumstances of this case and fundamental fairness demanded a different result, …” leading the trial court to determine that enforcement of the terms of the plea agreement was in the interest of justice. TCO, at 5.

Mebane, 2012 Pa. Super. at 238, 58 A.3d at 1245-49, reargument denied (Jan. 9, 2013) (emphasis added).

The Defendant also asserts that there is precedent allowing a trial court to sever an illegal or unconscionable term from a plea agreement, while permitting the rest of the agreement to stand. For this principle, the Defendant relies on Commonwealth v. Dorsey, 280 Pa. Super. 388, 421 A.2d 777 (1980). In Dorsey, the Superior Court overturned the trial court’s refusal to strike an illegal requirement that the defendant pay three sets of costs from a plea agreement, while still enforcing the remainder of the agreement.

While we accept the precedent of Dorsey, we note that decision contains further language that scuttles Defendant Martin’s claim for relief on the strict principles of contract law. Of note, Dorsey states: “It is appropriate, then, to strike such a term from the agreement, especially when, as is undisputed here, that term did not induce the Commonwealth to enter the agreement.” Id. at 390, 421 A.2d at 778 (emphasis added).

Unlike the term severed from the plea agreement by the Court in Dorsey, the “package deal” term that Defendant Martin urges us to sever from the plea agreement in the instant case is clearly characterized by the written communication of the District Attorney as a material term of, and inducement for, the agreement. The “package deal” provision was, in fact, a deal-breaker, so essential to the Commonwealth that it refused to go forward with the agreement as to the Defendant alone when Carolyn King indicated she would not accept its terms. Although the Defendant urges us to view the “package deal” term as an extraneous one that can be excised from the plea agreement, we find that the strict principles of contract law alone do not allow us to do so. The formation of a contract requires a “meeting of the minds.” Onyx Oils Resins Inc. v. Moss, 367 Pa. 416, 420, 80 A.2d 815, 817 (1951). The “mind” of the Commonwealth clearly expected to waive seeking the death penalty if and only if both Defendants pleaded guilty under the agreement. Without such a “meeting of the minds,” there exists no true agreement for us to enforce under the strict guise of contract law.

III. Defendant’s Claim for Relief Based Upon Due Process Protections

We turn then to the Defendant’s claim for relief based upon the protections of Due Process as guaranteed by both the United States and Pennsylvania Constitutions. Bradley Martin argues that the “package deal” plea agreement offered by the Commonwealth prior to his 1994 murder trial was violative of his due process rights, because it conditioned his ability to plead guilty to first degree murder in exchange for a life sentence upon the agreement of Carolyn King to do the same. Neither party has been able to provide the Court with controlling authority on the precise ground for relief raised by the Defendant. Likewise, our own thorough search for controlling precedent has uncovered none. Although “package deal” plea bargains have been reviewed, and cautiously permitted, in the context of their effect on the voluntariness of pleas, no Pennsylvania appellate court has ruled, on due process grounds, that such “package deals” are permissible in the context of a co-defendant who wishes to plead under a package deal agreement, but is prevented from doing so by the unwillingness of his co-defendants. Moreover, there is certainly no controlling precedent on such grounds in a Pennsylvania capital case, in which a Defendant, who never wavered in his desire to accept a plea agreement for life imprisonment proffered by the Commonwealth, was deprived of the opportunity to do so by a condition outside his control and then ultimately sentenced to death. We are left, then, to resolve the Defendant’s claim as one of first impression, examining the standards of Due Process and their application to the plea bargaining process, within the context of a capital case.

A. The heightened scrutiny of capital case jurisprudence

Our analysis begins with an acknowledgment of the heightened scrutiny to which capital cases are subject. The United States Supreme Court has repeatedly recognized that “death is different.” “[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion). For this reason, the death penalty presents different and far more serious concerns than any other sanction. See, e.g., Ring v. Arizona, 536 U.S. 584 (2002).

The conclusion “that ‘death is different’ … means that the firm view of our society demands that it be treated differently in certain identifiable respects…” Thompson v. Oklahoma, 487 U.S. 815, 877-78 (1988) (Scalia, J., dissenting). “[T]he qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” California v. Ramos, 463 U.S. 992, 998-99 (1983). Indeed, in some instances, the Supreme Court has, “‘in the interests of justice,’ been willing to overlook requirements that it would ordinarily impose in non-capital cases.” Eddings v. Oklahoma, 455 U.S. 104, 117 n. * (1982) (O’Connor, J., concurring) (quoting Wood v. Georgia, 450 U.S. 261, 265 n. 5 (1981). Moreover, capital case review is progressively tightening, a reflection, perhaps, of the “evolving standards of decency” criterion first articulated in Trop v. Dulles, 356 U.S. 86, 101 (1958). While an exhaustive review of death penalty jurisprudence is outside the scope of this Opinion, we are certainly aware of the current trend in this area of the law. In sum, the protections afforded to capital case defendants are ever expanding, and the circumstances under which the state may seek and impose the penalty are ever narrowing. It is within this context of heightened scrutiny and ever-broadening protections that we consider the Defendant’s due process claim.

B. The standards of Due Process

The Defendant’s right to Due Process of law is guaranteed by both the Pennsylvania and United States Constitutions. Article 1, §9 of the Pennsylvania Constitution contains the Commonwealth’s Due Process Clause. It provides:

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.

Pa. Const. Art. I, §9. Although the phrase “Due Process” is not expressly stated, our appellate courts have held that the phrase “law of the land” used in Article 1, Section 9 is synonymous with “Due Process.” See Commonwealth v. Nase, 2014 WL 4415061 n. 3, 2014 Pa. Super. 194 n. 3, ___ A.3d ___ (2014); Commonwealth v. Rose, 2013 Pa. Super. 305 n. 2, 81 A.3d 123, 126 n. 2 (2013), allowance of appeal granted on other grounds, ____ Pa. ____, 95 A.3d 274 (2014) (citing Craig v. Kline, 65 Pa. 399, 413 (1870); Murray v. Hoboken Land & Imp. Co., 59 U.S. 272 (1855). As to the scope of protection afforded by this right, our Supreme Court has held that the rights guaranteed by this provision are “essentially coextensive” with those of the 14th Amendment to the United States Constitution. Nase, 2014 WL 4415061, ___ A.3d at ___. See also Commonwealth v. Turner, ___ Pa. ___, 80 A.3d 754 (2013). The 14th Amendment provides, in pertinent part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;…

U.S. Const. amend. XIV.

“’Due process’ is not susceptible to precise definition;” Commonwealth v. Turner, ____ Pa. at ___, 80 A.3d at 763-64; that definition is both fluid and opaque. Id. at ___, 80 A.3d at 764; Commonwealth v. Kratsas, 564 Pa. 36, 49, 764 A.2d 20, 27 (2001). In general, however, both Due Process Clauses

embody the principle of fundamental fairness, entitling every individual to be free from arbitrary or oppressive government conduct. See generally Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974). The due process inquiry, in its most general form, entails an assessment as to whether the challenged proceeding or conduct ” ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ ” Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2323, 53 L.Ed.2d 281 (1977) (citation omitted), and that “define [s] the community’s sense of fair play and decency.” Dowling v. United States, 493 U.S. 342, 353, 110 S.Ct. 668, 676, 107 L.Ed.2d 708 (1990) (quoting Rochin v. California, 342 U.S. 165, 170, 72 S.Ct. 205, 210, 96 L.Ed. 183 (1952)).

Kratsas, 564 Pa. at 49, 764 A.2d at 27. See also Commonwealth v. Brown, 617 Pa. 107, 144-45, 52 A.3d 1139 (2013). Additionally, Due Process prevents the government from engaging in conduct which “shocks the conscience, or interferes with rights implicit in the concept of ordered liberty.” Porter v. Karivalis, 718 A.2d 823, 826 (Pa. Super. 1998) (quoting United States v. Salerno, 481 U.S. 739 (1987)).

The Commonwealth does not attempt to defend its “package deal” plea bargain in the instant case based upon the above suggested standards for Due Process. It does not attempt to argue that its proffered plea agreement comports with the principles of fundamental fairness or fails to shock the conscience. Nor does it deny that the agreement, and its outcome, could be perceived as arbitrary or at odds with the concept of ordered liberty. Rather, the Commonwealth argues only that a defendant has no Constitutional right to a plea bargain, and the Commonwealth, absent a decision based upon an invidious classification, has complete discretion both to decide whether to offer a plea agreement and to dictate its terms. (See N.T. July 31, 2014 at 37).

We agree with the Commonwealth that a defendant has no right to be offered a plea bargain. See Weatherford v. Bursey, 429 US. 545, 561 (1977); Missouri v. Frye, 132 S.Ct. 1399, 1410 (2012). “The decision as to whether to enter into plea negotiations is a function of prosecutorial discretion, and we will not review such decisions unless such decisions are based upon an invidious classification such as race, religion, or national origin.” Commonwealth v. Stafford, 272 Pa.Super. 505, 510, 272 A.2d 570, 573 (1979). However, “[w]hen a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution.” Lafler v. Cooper, 132 S.Ct. 1376, 1387 (2012) (citing Evitts v. Lucey, 469 U.S. 387, 401 (1985)). The significant discretionary area of prosecutorial plea bargaining is no exception to this general rule.

C. Applicability of Constitutional protections to plea bargaining

We do not step outside of precedent by applying Constitutional protections to the discretionary area of plea bargaining. In Santobello v. New York, 404 U.S. 257 (1971), the United States Supreme Court, while recognizing the value of plea bargaining in the criminal justice system, noted that

…all of these considerations presuppose fairness in securing agreement between an accused and a prosecutor….[t]his phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary.

Id. at 261-62. This sentiment was echoed by the Pennsylvania Supreme Court five years later in Commonwealth v. Zuber, 466 Pa. 453, 353 A.2d 441 (1976), which asserted,

While it is true that the practice of plea bargaining is looked upon with favor, Commonwealth ex. Rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966), the integrity of our judicial process demands that certain safeguards be stringently adhered to …

Id. at 458, 353 A.2d at 444. Citing Santobello, Zuber held that the prosecutor has an affirmative duty to honor any and all promises made in exchange for a defendant’s plea to avoid any “possible perversion” of the plea bargaining system. Similarly, in Commonwealth v. Hainesworth, 2013 Pa. Super. 318, 82 A.3d 444 (2013), the Superior Court held that “plea bargaining ‘is not some adjunct to the criminal justice system; it is the criminal justice system.’…Accordingly, it is critical that plea agreements are enforced, ‘to avoid any possible perversion of the plea bargaining system’.” Id. at 318, 82 A.3d at 449 (internal citations omitted).

Both the scrutiny to which the plea bargaining process is subject and the scope of Constitutional protections the appellate courts are willing to apply in conducting that scrutiny are expanding. Most recently, in Missouri v. Frye, 132 S.Ct. 1399 (2012), the United States Supreme Court held, for the first time, that the Sixth Amendment right to effective assistance of counsel extends to the negotiation and consideration of potential plea bargains, even those that were never communicated to the defendant and lapsed without being presented in court. The case extended previous decisions of the Court in Hill v. Lockhart, 474 U.S. 52 (1985) and Padilla v. Kentucky, 559 U.S. 356 (2010), which had considered the role of counsel in advising a client about plea offers and an ensuing guilty plea. In rejecting a contention by the prosecution that a defendant whose counsel did not communicate with him a favorable plea offer was not entitled to raise a Sixth Amendment claim, the Court noted:

The State urges that there is no right to a plea offer or a plea bargain in any event…It claims Frye therefore was not deprived of any legal benefit to which he was entitled. Under this view, any wrongful or mistaken action of counsel with respect to earlier plea offers is beside the point.

… The State’s contentions are neither illogical nor without some persuasive force, yet they do not suffice to overcome a simple reality. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. See Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online, Table 5.22.2009, http://www.albany.edu/sourcebook/pdf/t5222009.pdf (all Internet materials as visited Mar. 1, 2012, and available in Clerk of Court’s case file); Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts, 2006–Statistical Tables, p. 1 (NCJ226846, rev. Nov. 2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/fssc 06st.pdf; Padilla, supra, at ––––, 130 S.Ct., at 1485–1486 (recognizing pleas account for nearly 95% of all criminal convictions). The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 1388, 132 S.Ct. 1376, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent … horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). See also Barkow, Separation of Powers and the Criminal Law, 58 Stan. L.Rev. 989, 1034 (2006) (“[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial” (footnote omitted)). In today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.

132 S. Ct. at 1407 (emphasis added).

Thus, our decision today does not depart from precedent, which requires the application of Constitutional protections to the plea bargaining process, even before an offer by the prosecution is communicated to a defendant, agreed to by the parties, or presented to the Court. There is already, by virtue of Missouri v. Frye, controlling judicial acceptance of that principle.

D. Applicability of Due Process protections to the plea bargaining process

While Missouri v. Frye specifically applies the Sixth Amendment right to counsel to plea bargain negotiations, there is also precedent for applying Fourteenth Amendment due process protections to that process. In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the Supreme Court considered whether a state prosecutor violated a defendant’s due process rights when the prosecutor carried out a threat made during plea negotiations. Specifically, the prosecutor threatened to re-indict the defendant on more serious charges and to charge him as a habitual offender, when the defendant refused to plead guilty to the lesser offense with which he was originally charged. While holding that there was no violation of Due Process because the prosecutor had probable cause to believe the accused had committed the more serious offense, the Court nonetheless accepted the premise that considerations of Due Process could apply to limit a prosecution’s discretion in the plea bargaining process. The Court explained:

There is no doubt that the breadth of discretion that our country’s legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise. We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment.

Id. at 365. See also United States v. Williams, 510 F.3d 416, 423-24 (3rd Cir.,2007)(agreeing that “…a plea agreement is a contract…but a contract in which special due process concerns for fairness and the adequacy of procedural safeguards obtain”)(citing Santobello, supra).

Bordenkircher also stated, in language which has significant import for the Motion before us:

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, … and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is “patently unconstitutional.”… But in the “give-an-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.

Id. at 363 (emphasis added).

The Pennsylvania appellate courts have also been willing to evaluate prosecutorial discretion in plea bargaining through the lens of due process protection. In Commonwealth v. Smith, 444 Pa. Super. 652, 664 A.2d 622 (1995), the Superior Court reviewed the prosecution’s invocation of a mandatory minimum sentence, after a defendant withdrew his plea pursuant to a plea agreement in which the prosecution had agreed it would not pursue a mandatory minimum. While ultimately finding that the prosecution’s renewed pursuit of the mandatory minimum sentence after the plea withdrawal was not violative of the defendant’s due process rights, the Court nonetheless implicitly accepted the appropriateness of applying due process considerations to the plea bargaining process. After adopting the Bordenkircher language that “[i]n the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer,” Smith also explained:

Plea bargaining flows from “the mutuality of advantage” to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Brady v. United States, [397 U.S. 742, 752, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747 (1970)]. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. [Id. at 758, 90 S.Ct. at 1474]. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by *660 promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. See ABA Project on Standards for Criminal Justice, Pleas of Guilty § 3.1 (App.Draft 1968); Note, Plea Bargaining and the Transformation of the Criminal Process, 90 Harv.L.Rev. 564 (1977). Cf. [Brady, 397 U.S. at 751, 90 S.Ct. at 1470]; North Carolina v. Alford, [400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) ].

Id. at 659-60, 664 A.2d at 626 (emphasis added). Thus, while ultimately denying relief on due process grounds, Smith clearly presumed the defendant had a real and not illusory or conditioned choice to accept or reject the Commonwealth’s bargain.

E. Due Process and conditioned or “package deal” pleas

It is within the construct of the above analysis that we review Defendant’s due process claim. While we respect the broad discretion of the prosecution in the plea bargaining process, we also note that that discretion is not unfettered. Rather, that discretion, and the plea bargaining process itself, are subject to Constitutional and specifically due process scrutiny, even when an offer has not been accepted by a defendant or presented in Court.

We turn then to the specific issue of this case, an application of the protections of Due Process as they apply to a “package deal” plea agreement, in which the Commonwealth offered to permit the Defendant to plead guilty to first degree murder in exchange for a life sentence only if his co-defendant indicated a willingness to do the same. We are required to determine whether that conditioned plea agreement violated the standards of Due Process, when the Defendant’s co-defendant indicated, as late as the morning of trial, that she did not intend to plead for life and the Defendant was thereby prevented from accepting the Commonwealth’s offer by a factor outside of his control.

“Package deal” plea agreements have been the subject of due process and general Constitutional analysis, but not in the manner at issue in the instant case. Existing “package deal” jurisprudence has evaluated such plea bargains for their potentially coercive effect on the defendant who is hesitant to plead under the proposed agreement. In evaluating “package deals” from this standpoint, courts have held that, while not per se violative of public policy or Constitutional protections, such “package deal” pleas do pose special risks. See, e.g., United States v. Hodge, 412 F.3d 479, 490 (3d Cir. 2005). Accord State v. Solano, 724 P.2d 17, 21 (Ariz. 1986) (stating that package deal pleas are “fraught with danger”.) The risk evaluated by Hodge and Solano is the possibility that a defendant’s guilty plea is not truly voluntary, but rather the product of coercion. As explained by the Supreme Court in Bordenkircher v. Hayes, “a prosecutor’s offer during plea bargaining of adverse or lenient treatment for some person other than the accused… might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider.” Id. at 364 n.8. See also Commonwealth v. Dupree, 442 Pa. 219, 275 A.2d 326 (1971).

The precedent cited above as permitting, with caution, “package deal” pleas is not determinative in the instant case, because such cases were concerned with the voluntary nature of the plea of a co-defendant who did not wish to plead. The Defendant’s claim of error in the instant case is not that he was forced to plead against his will. Rather, his claim is that he was denied Due Process by being prevented from pleading under the agreement (and thereby avoiding exposure to a possible death sentence) by a condition he could not control, the vacillating will of his co-defendant. Therefore, in the absence of binding precedent to the contrary, with an awareness of the continuing trends in criminal Constitutional law and death penalty jurisprudence, and in light of the standards for evaluating due process claims as articulated above in this Opinion, we hold as follows: While we concur with the Commonwealth that it is under no obligation to extend a negotiated plea offer to a defendant prior to trial, we hold that, once the Commonwealth opts to make such an offer, its offer must comport with the protections of the Constitution, including those of Due Process. In the particular facts of the case at Bar, the Commonwealth’s insistence on the fulfillment of the “package deal” term in the proffered plea agreement violated the Defendant’s due process rights, because it impermissibly conditioned the Defendant’s ability to accept the agreement for a sentence of life imprisonment without exposure to the death penalty upon something outside of the Defendant’s ability to control.

The Commonwealth has urged us to hold otherwise: to sanction as “fundamentally fair” the Commonwealth’s renewed pursuit of the ultimate punishment based solely upon the whim of the Defendant’s capital co-defendant because the prosecution has unfettered discretion to extend plea bargains with any random condition. The logical extensions of that position are troubling. As we explored with the Commonwealth during Oral Argument, such a position would make it permissible for a prosecutor to offer a plea bargain to a defendant that could be accepted only if it rained on the day of the scheduled plea, or if the District Attorney’s favorite football team prevailed the night before. While the Commonwealth protests that these circumstances are inapposite to the case at Bar, all of these scenarios have in common a defendant, with whom the Commonwealth has already decided to bargain, who is unable to accept the Commonwealth’s tendered offer because a condition outside his control has not been fulfilled. Whether that condition is the weather, the outcome of a sporting event, or the trial-day whim of a co-defendant, such conditions do not comport with the Bordenkircher/Smith language, which requires that a defendant be “free to accept or reject the prosecution’s offer.” They certainly do not seem fundamentally fair. Moreover, rather than being part of a process of ordered liberty, they lead to outcomes that seem random and arbitrary and thereby taint and pervert the plea bargaining process. Finally, the idea that the Commonwealth determined that justice could be satisfied by a sentence of life imprisonment instead of death and made that offer to the Defendant, only to effectively withdraw that offer because his co-defendant threw down her pen on the morning of trial and decided to roll the dice with a jury, does indeed “shock our conscience.” As counsel for the Defendant opined at oral argument, the Commonwealth’s continued insistence on the “package deal” term meant, effectively, that “a man might live or die based upon the decision of Carolyn King,…” (N.T. July 31, 2014 at 11.)

The Commonwealth vehemently opposes this conclusion, arguing it was up to (and will be up to again) a panel of sentencing jurors to determine whether Bradley Martin was (and will be) subject to death or to life imprisonment. Such an argument ignores Supreme Court precedent. As articulated by the Court in Missouri v. Frye,

[I]t is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent … horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long…” (internal citations omitted).

Id. at 1407. We decline to find that a subsequent, “fair” capital sentencing proceeding necessarily serves as a backstop inoculating a Constitutional violation in the pretrial, plea bargaining process. In the instant case, the horse trading between prosecutor and defense counsel effectively determined whether Bradley Martin, in 1994, was sentenced by this Court to death. Absent our intervention to remedy the due process violation suffered by Martin in 1994, it is possible that outcome could occur again.

IV. Remedy

We are left then to determine an appropriate remedy for the violation of Defendant’s due process rights during the plea bargaining process. Although the Defendant argues for specific enforcement of the plea agreement, we find that in the strictest sense that remedy is not available. Even if we were to excise the offending “package deal” term from the agreement, the parties are no longer in a position to perform the remaining terms of the contract. The case is no longer at the pretrial stage; the Defendant can no longer plead guilty prior to trial in exchange for the removal of the possible specter of a death sentence. When the plea offer was effectively withdrawn by the Commonwealth after Carolyn King declined to plead on the morning of trial, the Defendant went to trial, was found guilty, and was ultimately sentenced to death by a jury of his peers. His guilt on the underlying first degree murder charge is no longer at issue, and there is no plea to that charge to be made. His case is before us by virtue of a successful PCRA only for a new sentencing phase. Therefore, there is no “entitlement” to specific performance, and there is no ability to give either side the precise benefit of the bargain proposed in 1994.

We can, however, on the authority of Mebane and Dupree, achieve “fundamental fairness” as a matter of judicial discretion, if we believe the interests of justice warrant it. Based on the undisputed facts before us, we believe the interests of justice do indeed warrant the exercise of our equitable powers in the instant case, and so will enter an order finding that the Defendant is entitled to, and we intend to impose, a sentence of life imprisonment on the charge of first degree murder. See Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971) (vacating a death sentence and remanding with instructions that the trial court impose a term of life when the prosecutor, in exchange for the Defendant’s plea of guilty, agreed not to seek the death penalty but then, in the plea colloquy, described the defendant and the crime in such gruesome detail that the trial court sentenced the defendant to death.) Although this resolution does not put the Defendant back in his original position, with the opportunity to avoid going to trial or spending the last two decades on death row, he will be spared exposure to a possible sentence of death in a new sentencing proceeding. Likewise, although our decision does not undo the expenditure of resources and effort invested by both the Commonwealth and the Defendant in the original trial, it does spare both parties the additional and significant effort and expense of conducting a new sentencing hearing, while achieving the Commonwealth’s additional goal of efficient resolution of the Defendant’s case.

We emphasize that our decision today is in no way an effort to remove the plea bargaining tool from the District Attorney’s toolbox. It is, instead, an attempt to insure that tool is used in a Constitutional, fundamentally fair manner, rather than in a way that offends our sense of ordered liberty and leads to outcomes that seem disturbingly capricious. Likewise, our decision should not be perceived as reflective of a disinclination to apply capital punishment in appropriate circumstances. It is not a commentary on the heinousness of the crime committed by Bradley Martin or the grievous loss suffered by the victim’s family. Both of those considerations were taken into account by the prosecution before it indicated a willingness to withdraw its pursuit of the death penalty in its formal offer to Bradley Martin in this case.

We are certainly not seeking to abolish the death penalty, nor strip the Commonwealth of its power to seek it. But if the death penalty is going to remain a viable form of punishment for the “worst of the worst” in this Commonwealth, its pursuit by prosecutors and its imposition by the courts must be marked by sober, deliberate, and intentional process. When the State pursues the death penalty in a manner that appears arbitrary and fundamentally unfair, and we find that it does in the instant case, it risks losing altogether the availability of the penalty in the future.

We have a long-held philosophy and documented history of judicial restraint. As we noted in a previous opinion in this case, our stated intention in all cases is to “follow the law as it currently exists in the Commonwealth.” Commonwealth v. Bradley Martin, L.C.C.C.P. Nos. CP-38-CR-0000899-1993, CP-38-CR-0001079-1993 at 4 (December 11, 2012.) Today, however, we find we are compelled by the interests of justice to intervene in a fact-specific circumstance on a narrow legal question that has yet to be considered by our appellate courts. Our decision has been guided by general standards for Due Process as articulated in different circumstances. It has been informed by what we perceive as an ever-increasing scrutiny of capital sentences and a growing willingness of the judiciary to limit prosecutorial discretion and apply Constitutional safeguards to the plea bargaining process. Finally, based upon the specific facts of this case and the law as it now exists, our conclusion in this matter has been led by what we consider to be the right decision rendered for the right reasons.

We will enter an appropriate Order, indicating an intention to schedule a sentencing proceeding for the Defendant for the purposes of imposing sentence consistent with the holding of this Opinion. Our Order of today’s date will further certify this matter for interlocutory appeal, indicating, as specified by 42 Pa.C.S.A. §702, that it involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the Order may materially advance the ultimate termination of the matter. Any party wishing to pursue interlocutory appeal of today’s Order shall, within 30 days of today’s Order, seek permission to appeal with the prothonotary of the appellate court under the guidelines set forth by Pa.R.A.P 1311. Any party filing a Petition for Permission to Appeal today’s Order shall concurrently provide a copy of the Petition for Permission to the undersigned jurist. In the event neither party pursues interlocutory appeal of today’s Order within the 30-day time period, the Court will promptly schedule a sentencing proceeding for the Defendant consistent with the holding of this Opinion.

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