Commonwealth, Aplt. v. Harrison, S.

[J-48-2025] [MO: Todd, C.J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                    :   No. 84 MAP 2024
                                                  :
                       Appellant                  :   Appeal from the Order of the
                                                  :   Superior Court at No. 520 MDA
                                                  :   2022 dated November 28, 2023
               v.                                 :   Affirming the Order of the York
                                                  :   County Court of Common Pleas,
                                                  :   Criminal Division, at No. CP-67-CR-
 STUART HARRISON,                                 :   0007632-2018 dated November 1,
                                                  :   2021.
                       Appellee                   :
                                                  :   SUBMITTED: March 25, 2025


                      CONCURRING AND DISSENTING OPINION


JUSTICE DOUGHERTY                                                DECIDED: April 30, 2026
       Because the Superior Court clearly overlooked our jurisprudence establishing the

applicable judicial standards for evaluating a Commonwealth motion to nolle prosequi

(“nolle pros”) charges, 1 I would reverse its published decision and remand for it to apply

our binding precedent in the first instance. The majority instead affirms on an alternate

ground. It also resolves, sua sponte, an issue not raised by the Commonwealth. Thus, I

respectfully dissent in part.

       As the majority correctly explains, in Commonwealth v. Reinhart, 353 A.2d 848

(Pa. 1976), “we instructed trial courts to examine the reason ‘given by the Commonwealth’

in support of [a] motion [to nolle pros], and then determine if that reason is both ‘valid and

1 See Pa.R.Crim.P. 585(A) (“Upon motion of the attorney for the Commonwealth, the

court may, in open court, order a nolle prosequi of one or more charges notwithstanding
the objection of any person.”); 42 Pa.C.S. §8932 (after the commencement of a criminal
matter, a prosecutor “shall not enter a nolle prosequi or dispose of the matter . . . without
having obtained the approval of the court”).
reasonable.’” Majority Opinion at 29, quoting Reinhart, 353 A.2d at 853. Reinhart

articulated “a straightforward standard[.]”      Id. at 30.    Equally straightforward is the

appellate standard of review in such cases. In Commonwealth v. DiPasquale, 246 A.2d

430 (Pa. 1968), we held a trial court’s “grant or refusal of a petition for nolle pros . . . lies

within the sound discretion of the lower [c]ourt, and its action will not be reversed in the

absence of an abuse of discretion.” Id. at 432 (citation omitted); see Majority Opinion at

28 (acknowledging DiPasquale “established the standard of appellate review of a trial

court’s denial” of a motion to nolle pros as “whether the trial court abused its discretion”).

       The panel below failed to heed these principles. First, wrongly believing it needed

to “decide what standard” a trial court should apply when evaluating a Commonwealth

motion to nolle pros charges, the panel determined the “correct standard” is “de novo

review.” Commonwealth v. Harrison, 307 A.3d 71, 84 (Pa. Super. 2023); see id. (“a de

novo standard applies to a motion for nolle prosequi based on an asserted lack of

evidentiary sufficiency”). This holding conflicted with Reinhart, which the panel failed to

even cite. See Reinhart, 353 A.2d at 853 (“Pennsylvania law indicates that there are two

factors to be considered when a request for a nolle prosequi is made: (1) is the reason

given by the Commonwealth for requesting the nolle prosequi valid and reasonable, and

(2) does the defendant, at the time the nolle prosequi is requested, have a valid speedy

trial claim?”) (footnotes omitted). Second, the panel seemed to suggest its own standard

of review on appeal was de novo. See Harrison, 307 A.3d at 86 (explaining “whether the

trial court correctly” evaluated the evidentiary sufficiency of the evidence “presents a pure

question or law, and we review it de novo”). This conflicted with DiPasquale, which the

panel did cite in its opinion, albeit for unrelated reasons. See DiPasquale, 246 A.2d at

432 (the “refusal of a petition for nolle pros . . . will not be reversed in the absence of an

abuse of discretion”).




                              [J-48-2025] [MO: Todd, C.J.] - 2
       The first question we agreed to resolve in this appeal by the Commonwealth is

whether the Superior Court — not the trial court — “failed to properly apply and follow the

binding legal precedent of this Court by using a de novo standard for a Commonwealth’s

motion for nolle prosequi . . . instead of the ‘valid and reasonable’ standard adopted by

this Court[.]” Commonwealth v. Harrison, 328 A.3d 466 (Pa. 2024) (per curiam). Under

Reinhart, the clear answer to that question is “yes.” In overlooking that binding decision

(and DiPasquale) and adopting a new de novo standard of review for trial and appellate

courts alike, the Superior Court plainly erred, as the Commonwealth argues.

       The majority nevertheless affirms.      It explains its “examination of the record

supports the conclusion that the trial court properly employed the Reinhart standard[,]”

and “that the Commonwealth’s reasons for seeking nolle prosequi were neither valid nor

reasonable.” Majority Opinion at 33, 35 (emphasis added). In other words, the majority

affirms based on its determination the trial court applied the correct standard to the

Commonwealth’s motion to nolle pros, even if the Superior Court didn’t. Certainly, there

is generally nothing improper about an appellate court affirming on an alternate ground.

See Commonwealth v. Wholaver, 177 A.3d 136, 145 (Pa. 2018) (“[I]t is well settled that

this Court may affirm a valid judgment or order for any reason appearing as of record.”)

(citation omitted). But since it is obvious the panel below overlooked our precedent

imposing the applicable standards of review, consistent with our typical practice, I would

simply reverse its published opinion and remand for it to apply the proper standards. See

Commonwealth v. Clay, 64 A.3d 1049, 1057 (Pa. 2013) (“Where a reviewing court applies

the incorrect legal standard, our [C]ourt generally will remand the matter with appropriate

directions.”) (citation omitted).

       More concerning, however, is the majority’s rejection of an argument not raised by

the Commonwealth. Specifically, the majority holds “the highly deferential standard of




                               [J-48-2025] [MO: Todd, C.J.] - 3
review of a prosecutor’s initial decision not to bring criminal charges which we articulated

in [In re Ajaj, 288 A.3d 94 (Pa. 2023) 2], does not govern this situation[.]” Majority Opinion

at 31. Yet, the Commonwealth never makes this argument in its brief to this Court; it

argues only that the lower courts erred by adopting “a de novo review standard for nolle

prosequi motions despite the existence of the binding ‘valid and reasonable’ standard”

from Reinhart.    Commonwealth’s Brief at 28; see, e.g., id. at 22 (“the ‘valid and

reasonable’ standard articulated by this Court in Reinhart . . . is consistent with the

prosecutorial function and the discretion required by prosecutors in deciding whether to

withdraw charges”); id. at 41 (“the ‘valid and reasonable’ standard adopted by this Court

in Reinhart . . . is the necessary judicial check on the prosecutorial discretion concerning

whether to discontinue the prosecution of a defendant”).            Although it is true the

Commonwealth contends Reinhart’s “valid and reasonable” standard more closely

“aligns with [Ajaj]’s bad faith, fraud, or unconstitutional standard” than with the de novo

standard invented by the Superior Court, id. at 41 (emphasis added), the Commonwealth

does not presently advocate for a change in the law supplanting Reinhart with Ajaj. On

the contrary, it merely seeks application of the existing Reinhart standard. 3




2 Ajaj held a trial court may overturn a prosecutor’s decision to disapprove a private

criminal complaint only “if the private complainant demonstrates that the disapproval
decision amounted to bad faith, occurred due to fraud, or was unconstitutional.” 288 A.3d
at 109.
3 I recognize that after we issued our decision in Ajaj, the Superior Court directed the

parties to address what effect, if any, it had on the present case. In its supplemental brief,
the Commonwealth argued: “Given th[e] similarities between disapproving a private
criminal complaint and seeking to nolle prosequi a criminal case, it stands to reason to
employ the same standard in each circumstance.” Commonwealth’s Supplemental
Superior Court Brief, 520 MDA 2022, at 13. Critically, though, the Commonwealth did not
press this argument in seeking allowance of appeal, we did not grant review of any such
issue, and the Commonwealth has not raised this claim in its brief to this Court.


                             [J-48-2025] [MO: Todd, C.J.] - 4
       In my respectful view, this case is not an appropriate vehicle for reconsidering our

precedent for several reasons. For one, the “Commonwealth does not presently contend

that it was seeking dismissal of the prosecution for any policy-based reasons, and it

disclaims any reliance on the ‘rehabilitation-related basis’ that it proffered in support of”

its initial nolle pros motion. Majority Opinion at 34 n.18; accord Commonwealth’s Brief at

25 n.8 (asserting its “valid and reasonable basis” supporting its second motion to nolle

pros “must be completely independent from” its first). Instead, “the Commonwealth’s sole

basis supporting its request for nolle pros[ ] in this case [i]s its assertion that the totality

of the evidence which it could factually, legally, and ethically present at trial — which

excluded [an eyewitness’s prior] account relayed to the investigating troopers given his

subsequent death — [i]s insufficient as a matter of law to carry its burden of proof

beyond a reasonable doubt that Harrison committed criminal negligence when he shot

the victim.” Majority Opinion at 34 (emphasis added). Even if Reinhart’s “valid and

reasonable” standard is appropriate for evaluating pure legal claims like the one before

us, the same may not be true when the Commonwealth seeks to nolle pros criminal

charges for policy-based reasons. See Wayte v. United States, 470 U.S. 598, 607 (1985)

(noting courts are “particularly ill-suited” to weighing the factors a prosecutor typically

considers in bringing, or dropping, a criminal case, including “the strength of the case, the

prosecution’s general deterrence value, the Government’s enforcement priorities, and the

case’s relationship to the Government’s overall enforcement plan”); see also

Commonwealth v. Mulholland, 702 A.2d 1027, 1034 (Pa. 1997) (“The public perception

of the criminal justice system is one of a broad spectrum of factors a prosecutor may

properly consider in the exercise of his discretion, and this has been true from time

immemorial.”) (citation omitted).




                              [J-48-2025] [MO: Todd, C.J.] - 5
       Additionally, because the Commonwealth has not asked us to reconsider the

current standard, it does not provide any authority that would support such an endeavor.

But there appears to be plenty. Consider, for example, how some federal courts approach

dismissal requests under Federal Rule of Criminal Procedure 48. Rule 48(a), the federal

counterpart to our Pa.R.Crim.P. 585 and 42 Pa.C.S. §8932, similarly provides that “[t]he

government may, with leave of court, dismiss an indictment, information, or complaint.”

F.R.Crim.P. 48(a). This leave-of-court rule “contemplates public exposure of the reasons

for the abandonment of [a prosecution] in order to prevent abuse of the uncontrolled

power of dismissal previously enjoyed by prosecutors.” United States v. Greater Blouse,

Skirt & Neckwear Contractors Ass’n, 228 F.Supp. 483, 486 (S.D.N.Y. 1964); see In re

Richards, 213 F.3d 773, 788 (3d Cir. 2000) (describing the leave-of-court rule “as a

‘sunshine’ provision that exposes the reasons for prosecutorial decisions”); United States

v. Derr, 726 F.2d 617, 619 (10th Cir. 1984) (“The primary purpose” of the leave-of-court

rule “is to prevent harassment of a defendant by a prosecutor’s charging, dismissing, and

recharging the defendant with a crime. Thus, to honor the purpose of the rule, the trial

court at the very least must know the prosecutor’s reasons for seeking” dismissal “and

the facts underlying the prosecutor’s decision.”) (internal citations omitted); United States

v. Salinas, 693 F.2d 348, 352 (5th Cir. 1982) (“Although the burden of proof is not on the

prosecutor to prove that dismissal is in the public interest, the prosecutor is under an

obligation to supply sufficient reasons — reasons that constitute more than a mere

conclusory interest.”) (internal footnotes, quotation marks, and citation omitted); United

States v. Ammidown, 497 F.2d 615, 620 (D.C. Cir. 1973) (the “requirement of judicial

leave . . . contemplates exposure of the reasons for dismissal”); see also 3B Charles Alan

Wright & Arthur R. Miller, Federal Practice & Procedure Crim. §802 (4th ed. June 2024

update) (“Since the court must exercise sound judicial discretion in considering a request




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for dismissal, it must have sufficient factual information supporting the recommendation.”)

(footnotes omitted).

       Significantly, many federal courts interpret Rule 48(a) as imposing a standard far

more deferential to the prosecution than the “valid and reasonable” standard we adopted

in Reinhart. See, e.g., United States v. Bernard, 42 F.4th 905, 909 (8th Cir. 2022) (“Courts

can exercise their discretion to withhold leave in only the rarest of cases[,]” such as “when

there has been prosecutorial harassment” or the prosecutor “had an illegitimate motive

rising to the level of bad faith. . . . Anything less is not enough.”) (internal quotation marks

and citations omitted); United States v. Romero, 360 F.3d 1248, 1251 (10th Cir. 2004)

(although leave of court is required to dismiss an indictment, a “court is generally required

to grant a prosecutor’s [ ] motion to dismiss unless dismissal is clearly contrary to manifest

public interest”) (internal quotation marks and citation omitted); United States v. Reyes,

102 F.3d 1361, 1367 (5th Cir. 1996) (request for dismissal improper only if motivated by

bad faith, which “is evidenced when the government is motivated by considerations

clearly contrary to the public interest”) (internal quotation marks and citation omitted);

United States v. Smith, 55 F.3d 157, 159 (4th Cir. 1995) (“The disposition of a

government’s motion to dismiss an indictment should be decided by determining whether

the prosecutor acted in good faith at the time he moved for dismissal. A motion that is

not motivated by bad faith is not clearly contrary to manifest public interest, and it must

be granted.”). Some courts in states with comparable leave-of-court rules have held

similarly. See, e.g., State v. McEwan, 265 N.W. 2d 818, 821 (Minn. 1978) (“Even where

the prosecutor must seek leave of court to dismiss charges, the trial court’s role is limited

to insuring itself that no abuse of discretion has occurred.”) (citation omitted).




                              [J-48-2025] [MO: Todd, C.J.] - 7
       I do not mean to suggest we must, or even should, adopt any of these alternate,

more deferential standards. 4 But their very existence proves this issue is more nuanced

than the majority lets on. Moreover, the Reinhart Court’s analysis on this point is seriously

lacking. The single case the Court cited in support of adopting the “valid and reasonable”

standard is Commonwealth v. Leaming, 275 A.2d 43 (Pa. 1971). That case, however,

concerned a defendant’s speedy trial claim, and Leaming says nothing of a “valid and

reasonable” standard. 5 Thus, for this reason as well, it may be prudent for this Court in

4 Nor do I intend to cast doubt on the constitutionality of Pa.R.Crim.P. 585 or 42 Pa.C.S.

§8932. As the majority persuasively explains, once the Commonwealth brings “criminal
charges and then obtain[s] judicial approval to pursue them[,]” it “implicates the duty of
judges to secure the orderly administration of justice by supervising the resulting
proceedings, and to protect the accused’s rights to a fair trial and due process.” Majority
Opinion at 31-32. In recognition of this judicial involvement, Rule 585 and Section 8932,
like their federal counterpart, merely operate as a limited “power to check power.” United
States v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975); see Commonwealth v. Whitaker, 359
A.2d 174, 177 (Pa. 1976) (“district attorney’s power to decide whether and when to . . .
discontinue a case is subjected to the power of the [trial] court to supervise all court
proceedings and to protect the accused’s right to a fair trial”) (citation omitted). More
precisely, they provide a measure of transparency, which in turns promotes public
accountability. See In re Richards, 213 F.3d at 789 (“[T]he public has a generalized
interest in the processes through which prosecutors make decisions about whom to
prosecute that a court can serve by inquiring into the reasons for a requested dismissal.
While this interest cannot rise to the substantive ability to compel a prosecution to
proceed, it does argue in favor of allowing a court to force prosecutors to publicly reveal
their reasons for not proceeding before granting a requested dismissal. Bringing these
decisions into the open may, in turn, lead to attempts by the public to influence these
decisions through democratic channels.”) (internal citation omitted). They also ensure a
court discharges its duties properly, for “[i]f the record contains no reasons or facts
explaining the trial court’s decision, the trial court’s decision is effectively unreviewable.”
Derr, 726 F.2d at 619; see Harrison, 307 A.3d at 87 (McCaffery, J., concurring) (“It is only
after a full inquiry is completed that a trial court can fulfill its responsibility of ensuring the
prosecution’s decision is proper.”). As such, these authorities contemplate a division of
labor consistent with the constitutional design, which “enjoins upon its branches
separateness but interdependence, autonomy but reciprocity.” Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
5 The majority tries to bolster Reinhart’s threadbare analysis by declaring the “question of

whether a trial court abused its discretion in refusing the Commonwealth’s request for the
entry of a nolle prosse, is a mixed question of law and fact.” Majority Opinion at 28-29.
(continued…)

                               [J-48-2025] [MO: Todd, C.J.] - 8
an appropriate case to reconsider whether the Reinhart standard is proper. 6 But this is

not that case because the Commonwealth seeks only an application of existing law, not

an expansion or alteration of it. Respectfully, the complex question of whether to reaffirm

Reinhart should not be resolved sua sponte. 7

       Finally, I am especially hesitant to decide more than is necessary in this appeal

given the separation of powers concerns lurking just beneath the surface. See Majority

Opinion at 16 (noting the Commonwealth raised a separation of powers claim before the

Superior Court that was not independently addressed by the panel). Like the panel below,

the majority does not confront the “unaddressed ramifications” that inevitably will follow

from its decision. Commonwealth’s Brief at 43 n.13. Most notably, what happens next?

Given its position the evidence is insufficient to support a conviction, is the York County


In addition, the majority notes a “trial court should apply a preponderance of the evidence
standard in making its determination as to whether the stated factual reasons are valid
and reasonable.” Id. at 31. Notably, however, like the Reinhart Court, the majority
provides no authority for adopting these propositions of law in this context. Also, in line
with the Superior Court’s misstep below, the majority injects a de novo standard into the
equation. See id. at 29 (“To the extent that a legal question is at issue, a determination
by the trial court will . . . be reviewed de novo.”), quoting Pennsylvania Nat. Mut. Cas. Ins.
Co. v. St. John, 106 A.3d 1, 13 (Pa. 2014) (additional citation omitted).
6 Although I do not prejudge the matter, the effectively nonexistent reasoning in Reinhart

would seem to militate against affording it stare decisis effect. See Commonwealth v.
Alexander, 243 A.3d 177, 196 (Pa. 2020) (noting quality of reasoning is pertinent factor
in deciding whether to overrule past decision).
7 The majority claims to “express no opinion on whether [the Reinhart] standard should

be reconsidered, as that issue is not before us.” Majority Opinion at 32 n.17. Yet the
majority then immediately goes on to hold “the far more deferential standard of review
Ajaj provided . . . is not applicable in this situation[.]” Id. at 32-33. Although I fully agree
Ajaj is distinguishable and did not overrule the Reinhart standard for evaluating motions
to nolle pros charges, by going further and sua sponte declining to adopt Ajaj’s bad faith,
fraud, or unconstitutional standard in this context, the majority necessarily reconsiders
and endorses Reinhart’s standard. I would not preemptively foreclose the possibility that
a bad faith standard like the one Ajaj announced may be constitutionally required in this
scenario, as many other courts have held, as discussed above. Resolution of that issue,
however, should await a case with more pointed advocacy.


                              [J-48-2025] [MO: Todd, C.J.] - 9
District Attorney’s Office (YCDAO) conflicted out of prosecuting Harrison such that it must

request supersession, see 71 P.S. §732-205(a)(3), a procedure complicated by the fact

that the present Attorney General, who would typically take over the case in the normal

course, was formerly the District Attorney of the YCDAO who “decided to seek nolle

prosequi of the case[?]” Majority Opinion at 10. Alternatively, if the YCDAO remains in

the case, what are its options in resolving the matter? Is it permitted to file a new motion

to nolle pros based on other grounds? Can it just sit on its hands and let the speedy trial

clock run, as we suggested in Leaming? See 275 A.2d at 46 (vacating nolle pros and

remanding “for a prompt trial or, failing that, for final dismissal of the charges”); see also

3B Wright & Miller, Federal Practice & Procedure Crim. §802 n.5 (“If a Rule 48(a) motion

is denied, the government can refuse to bring the case to trial within the time limits of the

Speedy Trial Act, in which case the court has no choice except to dismiss.”) (citation

omitted). Can it pursue a plea agreement? If the prosecution must proceed to trial, how

should the YCDAO comport itself given that “it believes the now-existing evidence does

not support conviction[?] Is [it] to inform the jury that it would not convict [Harrison] of the

crime charged based upon the evidence?[8] Is [it] ethically allowed to question witnesses

and make argument at all?” Commonwealth’s Brief at 42-43 n.13. The majority’s decision

raises far more questions than it answers.

       As I have previously observed, “there is a colorable argument that when a court

forces a district attorney to commence a prosecution he opposes — whether for legal or

policy reasons — it inevitably interferes with the prosecutor’s discretionary functions and

thereby violates the constitutional principle of separation of powers.” In re Ajaj, 288 A.3d


8 See 3B Wright & Miller, Federal Practice & Procedure Crim. §802 (“In a trial case, if the

court refuses to consent to dismiss, the prosecutor in the opening statement to the jury
and in the presentation of evidence can indicate the considerations that should work an
acquittal.”).


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94, 112-113 (Pa. 2023) (Dougherty, J., concurring) (internal quotation marks, brackets,

and citation omitted); see also id. at 126 n.61 (Wecht, J., concurring and dissenting)

(acknowledging “some remedies[,]” such as “a court’s order commanding a prosecutor to

act[,]” “might offend the separation of powers”). The same could be said when a court

prevents a prosecutor from discontinuing a case (at least prior to adjudication 9). See

DiPasquale, 246 A.2d at 432 (“A District Attorney has a [g]eneral and widely recognized

power to conduct criminal litigation and prosecutions on behalf of the Commonwealth,

and to decide . . . whether and when to continue or discontinue a case.”); see also

Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967) (Burger, J.) (“Few subjects

are less adapted to judicial review than the exercise by the Executive of his discretion in

deciding . . . whether to dismiss a proceeding once brought.”). After all, a court generally

is not situated — either in terms of institutional competence, or as a matter of its proper

role in our constitutional system — to make an assessment as to whether a prosecution

“should” continue.

       In sum, I agree with the majority’s sub silentio holding that the Superior Court erred

when it adopted a de novo standard for reviewing a Commonwealth motion to nolle pros

charges. I respectfully dissent, however, from the majority’s apparent application of the

right-for-any-reason doctrine, and from its resolution of issues not actually raised by the

Commonwealth. Instead, I would reverse this matter and remand to the Superior Court

with instructions for that court to apply our binding precedent and resolve any outstanding,

preserved constitutional issues in the first instance.

       Justice Mundy joins this concurring and dissenting opinion.



9 See Commonwealth v. Brown, 196 A.3d 130, 145 (Pa. 2018) (explaining “the scope of

prosecutorial discretion changes as a criminal case proceeds, narrowing as the case
nears completion”).


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