# Commonwealth v. Henderson

> Supreme Court of Pennsylvania · October 5, 1978 · 482 Pa. 359

URL: https://www.frixlaw.com/law-library/cases/9650233

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. Shirley HENDERSON, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** October 5, 1978
- **Citations:** 482 Pa. 359; 393 A.2d 1146; 1978 Pa. LEXIS 979
- **Precedential status:** Published
- **Opinion:** Dissent by Roberts
- **Judges:** Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino, Larsen
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

ROBERTS, Justice,
dissenting.
The opinion of Mr. Justice Nix concludes that “imposition of a minimum sentence where the original sentence did not contain a minimum sentence is an enhancement of the punishment and that appellant [Shirley Henderson] has properly preserved this issue for review.” 482 Pa. at 365, 393 A.2d at 1149. But it declines to address appellant’s contention that, under North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969), the trial court’s “enhancement of punishment,” without articulating its reasons, denied her due process. According to the opinion appellant did not use “due process” language in her petition seeking allowance of appeal and therefore, under Pa.R.App. Proc. 1115(a)(3), appellant has not properly preserved the claim for this Court’s consideration. I dissent.
Pa.R.App.Proc. 1115(a)(3) provides:
“Content of the Petition for Allowance of Appeal
(a) General Rule. The Petition for allowance of appeal need not be set forth in numbered paragraphs in the manner of a pleading, and shall contain the following (which shall, insofar as practicable, be set forth in the order stated):
(3) The questions presented for review, expressed in the terms and circumstances of the case but without unnecessary detail. The statement of questions presented will be deemed to include every subsidiary question *375 fairly comprised therein. Only the questions set forth in the petition, or fairly comprised therein, will ordinarily be considered by the court in the event an appeal is allowed.”
Thus, under Rule 1115(a)(3), we will “ordinarily” consider only the “statement of questions presented” and “every subsidiary question fairly comprised therein.” Compare Pa. R.Crim.Proc. 1123(a) (absolute rule (unqualified by “ordinarily” language) that “only those issues raised and the grounds relied upon in the motions may be argued” in post-verdict court).
Appellant, in her petition for allowance of appeal, framed her statement of questions as follows:
“Did not the Superior Court err in holding that increasing the minimum sentence imposed on a criminal defendant without increasing the maximum was not a violation of double jeopardy because an increase in the minimum sentence alone was not an increase in the ‘legal sentence?’ ”
The opinion of Mr. Justice Nix apparently is of the view that appellant’s allegation of a Pearce violation is not a “subsidiary question fairly comprised” within appellant’s statement of questions presented. But the opinion ignores the express term “ordinarily” contained in Rule 1115(a)(3), and thus deletes it from the Rule. Under the opinion’s present reading of Rule 1115, every time this Court grants a petition for allowance of appeal, it in effect, without notice to the parties, enters a limited grant of allocatur. This has never been our practice. In support of the opinion’s new reading of Rule 1115, it asserts that a contrary “practice would invite the introduction of issues and theories not presented to the courts below.” 482 Pa. at 364, 393 A.2d at 1149. But the opinion’s new reading of Rule 1115 contributes nothing to our existing means of assuring the proper preservation of issues.
Most troubling, should appellant seek further appellate review of her federal constitutional claim, today’s new reading of Rule 1115 invites unnecessary review by the Supreme *376 Court of the United States. Mr. Justice Harlan, speaking for a unanimous Supreme Court, has observed:
“Novelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decision, seek vindication in state courts of their federal constitutional rights.”
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457-58 , 78 S.Ct. 1163, 1169 , 2 L.Ed.2d 1488 (1958). I am unwilling to hold Shirley Henderson to the consequences of today’s unanticipated reading of Rule 1115, especially where based upon our prior practice, she has every reason to believe this Court would entertain her federal constitutional claim.
This Court should reach the merits of appellant’s due process claim.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9650233. Public record. Not legal advice.