Commonwealth v. Hamlett, J., Aplt.Commonwealth v. Hamlett, J., Aplt.
JUSTICE WECHT
Does the Commonwealth have a burden to establish harmless error? Unless the Majority is inclined to overrule our seminal decision on the harmless error doctrine, the answer incontrovertibly is “yes.” Commonwealth v. Story, 383 A.2d 155, 162 n.11 (Pa. 1978) (“[T]he burden of establishing that the error was harmless beyond a reasonable doubt rests with the Commonwealth.“). Why, then, may a court raise the issue of harmless error sua sponte, and then proceed to rule in the Commonwealth‘s favor thereon, despite the Commonwealth‘s failure to carry its burden, and despite any attempt by the Commonwealth to raise, assert, cite, discuss, or apply the harmless error doctrine to the facts of the case? The Majority appears to suggest that it has resolved this second question today, but its answer is irreconcilable with the settled answer to the first question. A burden must be satisfied by the litigant who bears it, not by the adjudicator. Otherwise, it is no burden at all.
The essential meaning of a “burden” in the law is readily understood by judges, lawyers, law students, scholars, television commentators, and laypersons alike. It means that there is some kind of obligation to carry one‘s point, lest the point be lost. This might make the question before us appear to have an obvious answer. Not so. The jurisprudential waters have significantly muddied over the last two decades. The crux of today‘s appeal is the “tension” that has grown within our harmless error jurisprudence, a tension that manifests itself in two divergent lines of precedent. On the one hand, there is the fundamental principle, recognized by the Supreme Court of the United States in Chapman v. California, 386 U.S. 18 (1967), and by nearly every court that has followed, that it is the prosecution‘s burden to establish the harmlessness of an error that potentially tainted a defendant‘s conviction. See id. at 24; Story, 383 A.2d at 162 n.11; Commonwealth v. Davis, 305 A.2d 715, 719 (Pa. 1973).1 On the other hand, there is this
Where our precedents hold simultaneously that there is a burden placed upon a party and that the court may elect at will to shoulder that burden itself, the precedents are incompatible. I would preserve the foundations of the harmless error doctrine, adhere to Story, and disavow our Mitchell line of cases. I would enforce the burden recognized in Chapman.
Every United States Court of Appeals that adjudicates criminal cases also has come to the same conclusion. See, e.g., United States v. Rivera-Carrasquillo, 933 F.3d 33, 47 (1st Cir. 2019) (“The government bears the burden of proving harmlessness.“); United States v. Groysman, 766 F.3d 147, 155 (2d Cir. 2014) (“With respect to harmless-error analysis, the government bears the burden of proof.“); United States v. Franz, 772 F.3d 134, 151 (3d Cir. 2014) (“The government bears the burden of establishing harmlessness.“); United States v. Garcia-Lagunas, 835 F.3d 479, 488 (4th Cir. 2016) (“The burden rests on the government, the beneficiary of the error, to show harmlessness.“); United States v. Gutierrez-Mendez, 752 F.3d 418, 426 (5th Cir. 2014) (“The government has the burden of establishing harmlessness beyond a reasonable doubt.“); United States v. Susany, 893 F.3d 364, 368 (6th Cir. 2018) (“The government bears the burden of proof on harmless error . . . .“); United States v. Robinson, 724 F.3d 878, 888 (7th Cir. 2013) (“The burden of demonstrating harmlessness rests with the government.“); United States v. Davis, 859 F.3d 592, 597 (8th Cir. 2017) (“The government bears the burden of proving an error is harmless.“); United States v. Esparza, 791 F.3d 1067, 1074 (9th Cir. 2015) (“The government bears the burden of proving that the error was harmless beyond a reasonable doubt.“); United States v. Russian, 848 F.3d 1239, 1248 (10th Cir. 2017) (“The government bears the burden of making this [harmlessness] showing.“); Bester v. Warden, 836 F.3d 1331, 1338 (11th Cir. 2016) (“The government, not the defendant, bears the burden of establishing that a constitutional error is harmless.“); United States v. Burnett, 827 F.3d 1108, 1119 (D.C. Cir. 2016) (“The government bears the burden of proving harmless error.“) (internal citation and quotation marks omitted).
The Majority chooses a different path, opting to provide no standard at all. Ultimately, the Majority holds that a court may assume the Commonwealth‘s burden “in appropriate cases.” Maj. Op. at 9. The court may conduct a harmless error analysis on its own initiative, the Majority reasons, pursuant to its “discretionary prerogative.” Id. at 10. Both the Majority and the Concurrence suggest some understanding that our appellate courts are expected to glean from today‘s decision, pursuant to which jurists will recognize their sua sponte invocation of harmless error to be an “exception to the ordinary rule,” id. at 9, one that must be used with caution in response to the “extremely occasional need,” Conc. Op. at 2 (Donohue, J.), to do the Commonwealth‘s job for it. I too am concerned by the “superficiality” with which harmless error analyses are commonly conducted. Maj. Op. at 12. But I find no practical limitations here, no standard, no rubric by which to distinguish an “appropriate” case from an inappropriate one, and no reason to expect that this purported “exception” to a litigant‘s burden will prove to be anything other than the norm, to the extent that the exception has not swallowed the rule already.
There is a straightforward path toward mitigating many of the problems that Appellant Hamlett has brought to our attention—a path grounded in the foundational case law from which we have departed. We should preserve the burden, in a form that is recognizable as such.
The Majority does not discuss much of the jurisprudence underlying this inquiry. The Majority does not discuss the facts or history of this case, nor the intermediate court‘s application of the law to the facts. See infra Part IV. Aside from a footnote providing citations to the decisions of this Court that Hamlett specifically challenges, Maj. Op. at 4 n.3, the Majority does not meaningfully confront the precedents at issue. The harmless error doctrine has a long history; the approach that this Court embraces today is of a more
I.
Harmless error often is treated as a routine matter in the law, but we must remain cognizant of the stakes of the inquiry before us. To the individual appellant whose case is under review, the importance of the inquiry is immense—a harmless error analysis often represents the line between an accused‘s entitlement to relief and the failure of his appeal. A finding of harmlessness deals a knockout blow, simultaneously acknowledging the merit in the appellant‘s assertion of legal error while nonetheless informing the
There is, of course, another side to this coin. It would be unreasonable to demand perfection throughout the entire course of a criminal prosecution and trial. For that reason, it is a longstanding tenet of our law that, “although an accused is entitled to a fair trial, he is not entitled to a perfect one.” Story, 383 A.2d at 164. Modern harmless error doctrine developed in the early twentieth century as a response to a “widespread and deep conviction” that appellate review of criminal cases had grown too demanding, and that appellate courts had become “‘impregnable citadels of technicality‘” that often reversed hard-won convictions on the basis of trivial irregularities. Kotteakos v. United States, 328 U.S. 750, 759 (1946) (quoting Marcus A. Kavanagh, Improvement of
Both the Supreme Court of the United States and this Court historically struck that balance by constraining the harmless error doctrine with two fundamental rules. First, before an error may be deemed harmless, “the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Davis, 305 A.2d at 719 (quoting Chapman, 386 U.S. at 24). “The second general precept” is that “the burden is on the Commonwealth to establish that the error was harmless.” Id. at 719; see Chapman, 386 U.S. at 24; Story, 383 A.2d at 162 n.11. The beyond-a-reasonable-doubt standard is commensurate with the prosecution‘s burden at trial, and it would make little sense for an appellate court to apply a lesser standard to the harmlessness inquiry. Story, 383 A.2d at 162. Moreover, this Court has explained, the beyond-a-reasonable-doubt standard reflects the prudent belief that “it is far worse to conclude incorrectly that the error was harmless than it is to conclude incorrectly that the error was reversible.” Davis, 305 A.2d at 719.
It is the “second general precept” of harmless error jurisprudence that is on the chopping block today. Davis, 305 A.2d at 719. Fundamentally, the purpose of assigning the burden to the prosecution is to minimize the potential for unfairness to the appellant, for it is the prosecution that benefits from the finding of harmlessness. The Supreme
In the past two decades, however, this Court began to distort this balance, tipping the scales in favor of the prosecution. In Mitchell, a capital direct appeal, this Court agreed with the appellant that the trial court had erred in permitting the prosecutor to impeach the appellant‘s testimony at trial by reference to his exercise of his right to remain silent. The Court proceeded to a harmlessness inquiry. In a footnote that ultimately would engender the so-called “tension” in our jurisprudence that we confront today, this Court stated:
Inexplicably, in this case the Commonwealth offers no alternative argument that the error was harmless, as it simply argues that no error occurred. We remind the Commonwealth that the burden of establishing harmless error rests squarely upon its shoulders. Story, 383 A.2d at 162 n.11. Despite this lapse by the Commonwealth, we are not without advocacy on this issue as the question of harmless error was directly raised and addressed by Appellant. Jurisprudentially, we can affirm the action of the court below on other grounds. Bearoff v. Bearoff Bros., Inc., 327 A.2d 72, 76 (Pa. 1974).
Mitchell, 839 A.2d at 215 n.11 (citation modified).
Although the Mitchell footnote is brief, there is much to unpack in it. It is evident that sua sponte invocation of harmless error was not commonplace at the time, as demonstrated by this Court‘s scolding of the Commonwealth for its “lapse” in failing to
Mitchell and its progeny embody the dangers of bad precedent. As sometimes happens, what began as merely an underdeveloped excuse for an unsound decision soon became the norm. In Commonwealth v. Moore, 937 A.2d 1062 (Pa. 2007), this Court again confronted an error as to which the Commonwealth had failed to advance a harmlessness argument. Citing Mitchell, this Court again paid lip service to the waning premise that the burden to prove harmless error falls upon the Commonwealth. Yet, the Court again invoked the right-for-any-reason doctrine as a basis to overlook the Commonwealth‘s omission. See id. at 1073. Mitchell had metastasized into a line of
This Court‘s treatment of harmless error grew increasingly casual. In Commonwealth v. Hitcho, 123 A.3d 731 (Pa. 2015), another capital direct appeal, this Court not only ignored the existence of a burden on the question of harmlessness, but, unlike earlier cases in this line, glossed over the fact that the Commonwealth had not advanced a harmlessness argument.4 After spending over a decade with the Mitchell footnote, it was no longer “inexplicable” that the Commonwealth had failed to carry its burden; the prosecution now could count on this Court to do the job for it. In Hitcho, this Court further abbreviated the analysis. The Court not only performed a harmlessness assessment on the Commonwealth‘s behalf, it also declined even to consider a claim of error. This Court held that “we need not resolve the issue of whether the trial court abused its discretion in denying Appellant‘s motion in limine . . . . Assuming, arguendo, the trial
Absent any advocacy from the parties on the question, and instead forging ahead sua sponte, this Court then disregarded that the “overwhelming evidence” variety of harmless error necessitates that the evidence be uncontradicted—a requirement that prevents the reviewing court from making questionable assessments of the credibility of competing evidence from its inherently limited appellate perspective.6 As Story stated:
The requirement that the “overwhelming” evidence relied upon be uncontradicted follows from the principle that an error cannot be harmless if “‘honest, fair minded jurors might very well have brought in not guilty verdicts.‘” Davis, 305 A.2d at 721 (quoting Chapman, 386 U.S. at 18). A jury has the duty to weigh the evidence and resolve conflicts therein. E.g., Commonwealth v. Murray, 334 A.2d 255 (Pa. 1975). Unless the evidence
is uncontradicted a fair minded juror may well choose to credit the defendant‘s, rather than the Commonwealth‘s evidence. The principle is in accord with the proper function of an appellate court. An appellate court is ill equipped to resolve conflicts in the evidence or make findings of fact.
Story, 383 A.2d at 167-68 (citations modified). Although the Hitcho Court quoted precedent that identified the correct standard, it nonetheless ignored this important element, and instead expressly rested its “overwhelming evidence” assessment, in part, upon an appellate credibility finding. The Court concluded that the defendant‘s testimony, which “offered an explanation for his actions to the jury” and, thus, ostensibly contradicted at least portions of the Commonwealth‘s evidence or the inferences derived therefrom, was “fraught with inconsistencies and based on an unbelievable version of events.” Hitcho, 123 A.3d at 748. In other words, this Court deemed a (potential) error harmless, sua sponte, based at least in part upon its own post hoc assessment of the defendant‘s credibility, which the Court somehow gleaned on appeal from a cold record. Such disregard for established standards sets a poor example for our courts, and does not inspire confidence in the soundness of this line of precedent.
The Mitchell line of cases never overruled our landmark decision in Story, never disapproved of its progeny, and never disputed the longstanding and well-settled principle that the burden to prove harmlessness rests with the prosecution. See supra at 2 & n.1. The cases also never recognized the contradiction—they merely cited the right-for-any-reason doctrine, then proceeded sua sponte as though the tension were resolved. But the tension remains. I addressed it directly in dissent in Commonwealth v. Hicks, 156 A.3d 1114, 1158 n.1 (Pa. 2017) (Wecht, J., dissenting), and the Superior Court in this case quoted my concerns before proceeding sua sponte to address harmlessness. See Maj. Op. at 2; Commonwealth v. Hamlett, 1172 WDA 2016, slip op. at 28 n.8, 2018 WL 4327391, at *13 n.8 (Pa. Super. Sept. 11, 2018).7 Hamlett identified the need for this Court to confront the matter, brought us this important appeal, and has directly framed this significant problem in our law with a challenge to the conflicting precedent. And so, here we are.
II.
The Majority does not concern itself with the soundness of the Mitchell line of cases, see Maj. Op. at 4 n.3, nor does it address the interests of the accused that are implicated by harmless error review. Although it rejects various of Hamlett‘s arguments, in a manner that I address seriatim below, the Majority articulates one central conclusion to explain why sua sponte review for harmless error is permissible, notwithstanding the Commonwealth‘s failure to make any attempt to carry its burden of persuasion: “[t]he harmless-error doctrine functions as the underlying substantive principle of law, and the right-for-any-reason precept merely provides the explanation for when and why an appellate court may exercise its discretionary prerogative to proceed of its own accord to preserve a valid verdict in appropriate circumstances.” Maj. Op. at 9.
This is not a satisfactory answer. Whether the verdict to be preserved is “valid” is precisely the question that a harmless error analysis seeks to answer, and the answer
Additionally absent from the Majority‘s analysis is any recognition of the oft-repeated reasons that sua sponte decision-making is roundly disfavored in the law. Even setting aside the express burden applicable in the harmless error context, it is axiomatic that “[s]ua sponte consideration of issues deprives counsel of the opportunity to brief and argue the issues and the court of the benefit of counsel‘s advocacy.” Wiegand v. Wiegand, 337 A.2d 256, 257 (Pa. 1975). Raising and addressing issues sua sponte “disturbs the process of orderly judicial decision-making by depriving the court of the benefit of counsel‘s advocacy, and depriving the litigants the opportunity to brief and argue the issues.” Johnson v. Lansdale Borough, 146 A.3d 696, 709 (Pa. 2016) (citations omitted). But beyond mere prudential challenges, and of particular relevance given Hamlett‘s specific argument to this Court, sua sponte decision-making may implicate due process concerns, to the extent that it deprives litigants of notice and an opportunity to be heard on potentially dispositive matters. See infra Part II(D). Before delving further into broader concerns, however, I turn next to the Majority‘s various rationales for rejecting
A. Judicial Economy
The Majority first invokes principles of judicial economy, noting the “systemic interest in avoiding costly and unnecessary proceedings before the judiciary” and the “social costs of retrial, including those of the judicial system at large, jurors, victims, other witnesses, and the general public.” Maj. Op. at 10. Due to these interests, the Majority asserts, “[j]udicious recourse to the discretionary prerogative to review for harmless error may appropriately proceed” sua sponte, when the court deems it appropriate. Id.
First, the Majority‘s justification begs the question inasmuch as it relies upon the interest in avoiding “unnecessary” retrials, which again is precisely the question that a harmless error analysis seeks to answer. Through the harmless error doctrine, the parties litigate, and the court decides, whether it is a “valid verdict,” id. at 9, that the prosecution seeks to preserve despite an error, such that a retrial becomes “unnecessary.” Id. at 10. The answer to the question is meant to be provided through the parties’ advocacy—the Commonwealth‘s, specifically—not through judicial intuition.
Moreover, the Majority refers only to interests that underlie the harmless error doctrine generally, but which have little relation to the question of the Commonwealth‘s burden. As it concerns the question before us, the typical framing of the interest in judicial economy is largely beside the point. It is no secret that the harmless error doctrine, at bottom, is informed significantly by principles of judicial economy. But that interest is in no way incompatible with the Commonwealth‘s advocacy. Indeed, requiring the Commonwealth to carry its burden advances judicial economy in many ways, while sua sponte consideration of harmless error directly and palpably disserves the interest in judicial economy. Precisely because it is a highly record-intensive inquiry, harmless error
Setting aside precedent, fairness, important underlying interests, and institutional concerns, perhaps it is helpful to discuss the reasons that the Commonwealth is better suited than the appellate court to advocate for harmless error, as a purely practical matter. Although appellate courts regularly review evidentiary records, we necessarily maintain a relatively detached relationship with them. When we first open the papers filed in a given appeal, we have no prior knowledge of the case. We were not in the courtroom at trial, nor have we observed any witness’ demeanor, nor have we seen the parties’ pre-trial or post-trial motions, nor have we heard their objections or offers of proof. We and the record simply are not acquainted. We rely heavily upon the lower courts’ summaries of the facts and proceedings, and to a lesser extent the parties’ representations, in order to orient ourselves to the legal questions presented for review. Naturally, those questions generally require us to consult the record, but we tailor our review to the issues before us, and we require that the parties provide us with citations to the portions of the record that contain the pertinent material. See, e.g.,
In the absence of any argument from the Commonwealth, the appellate court is left in unfamiliar terrain without a guide. In order to render its judgment with any degree of confidence, the court seeking to establish harmless error on its own initiative must commence an exacting, systematic, and laborious review of the record with no direction from the parties. This is plainly a burdensome exercise for any appellate court. See, e.g., United States v. Giovannetti, 928 F.2d 225, 226 (7th Cir. 1991) (per curiam) (noting that sua sponte consideration of harmless error “would place a heavy burden on the reviewing court, deprived as it would be of the guidance of the parties on the question whether particular errors were harmless“). This is not a revolutionary observation.
Certainly, in both the right-for-any-reason and harmless error contexts, the interest in judicial economy often refers to the avoidance of unnecessary retrials—surely a considerable burden upon our trial courts. See Maj. Op. at 10. But, from the trial court‘s perspective, it does not matter at all whether it is the Commonwealth or the appellate court that makes the harmlessness showing. If an error is to be deemed harmless, the end result—affirmance—is the same, and the resources of the trial court are spared to precisely the same degree regardless of whether the Commonwealth satisfies its burden or the appellate court shoulders that burden itself. The difference is that, where the parties litigate the matter and guide the court through the fact record, the analysis can be completed much more quickly, efficiently, and with greater confidence in the outcome. By contrast, where the Commonwealth fails to carry its burden, and the appellate court undertakes a self-directed harmless error analysis, the court must enmire itself in the record, parse it for any and all potentially relevant details, and thereby expend a significant amount of the court‘s time and resources, at the expense of other cases on its docket.
There can be no serious argument that it is not at least preferable for the Commonwealth to provide the reviewing court with meaningful advocacy on a potentially challenging, highly record-intensive inquiry such as harmless error. It is for this reason that the crux of Hamlett‘s argument regarding judicial economy is that, although “the practice of sua sponte review for harmless error might hypothetically advance judicial economy in the trial courts, it does so at the expense of judicial economy in the appellate courts.” Brief for Hamlett at 38. This is plainly true, but with one caveat. Condoning the practice of sua sponte review advances judicial economy in the trial court only if we assume that the Commonwealth, if required, would regularly fail to perform its duty as an advocate, and that it somehow becomes the appellate court‘s role to do the Commonwealth‘s job as an alternative to the consequence that should rightly follow from
The Majority‘s focus upon judicial economy extends only to the harmless error doctrine‘s standard, general admonitions relating to the costs of retrial. None of that is inconsistent with the placement of a burden upon the Commonwealth, nor with requiring the Commonwealth to carry that burden. The Majority criticizes a number of Hamlett‘s arguments as “impugning harmless-error review as such, as distinguished from the sua sponte aspect.” Maj. Op. at 11 n.9. Yet, a number of the Majority‘s “primary lines of attack,” id., also rely upon principles applicable to harmless error review as such, as distinguished from the sua sponte aspect. Avoidance of the “societal costs” of unnecessary retrials is wholly compatible with the Commonwealth advocating for its position. The sua sponte component of this jurisprudence has never concerned itself with the fact that the appellate court is doing the actual work of conducting self-guided harmless error analyses, which speaks volumes about the law‘s concern for judicial economy. By contrast, if the Commonwealth advocates for its position, every step of the appellate process becomes more efficient.
The most reasonable solution to these problems, from a judicial economy perspective, is that the Commonwealth must be made to carry its burden. If we begin to enforce the burden, the Commonwealth will learn to carry it again. It was once “inexplicable” for the Commonwealth to so fail. Mitchell, 839 A.2d at 215 n.11. Opting instead to find harmlessness sua sponte changes nothing in the trial courts, but shifts a heavy workload onto our busy appellate courts. It saves no precious judicial resources. It expends them. The entire exercise spares the effort of one party alone—the Commonwealth. Sua sponte harmless error review is not judicial economy. It is prosecutorial economy.
B. Right-For-Any-Reason
I would prefer not to dwell at great length upon the right-for-any-reason doctrine, nor upon its conflation with the harmless error doctrine, because I think it plain that the two doctrines are indeed distinct, that they have distinct purposes, and that there is a reason that they were given distinct names in the first place. I also believe that the sua sponte practice that the Majority approves is not actually an application of the right-for-any-reason doctrine, but rather that it is simply an attempt to apply harmless error principles on the court‘s own initiative, with the Commonwealth‘s burden conspicuously absent from the analysis. But the ostensible connection between these doctrines is the jurisprudential anchor of the Majority‘s approach, so it is worth considering the ways in which harmless error and the right-for-any-reason doctrine converge and diverge.
To separate the right-for-any-reason doctrine from harmless error, Hamlett proposes a taxonomy to this Court, suggesting that trial error be classified as either error of “admission,” “use,” or “rationale.” Brief for Hamlett at 17-23. He argues that only errors in rationale are amenable to disposition under the right-for-any-reason doctrine, because, in such a circumstance, the admission or use of the evidence was not erroneous; the only deficiency was the trial court‘s reason for a correct action. But if the admission or use of the evidence had no valid justification at all, then it is truly erroneous, and the error may find no safe harbor under the right-for-any-reason doctrine.
The Majority rejects Hamlett‘s framework, opining that “the selection of an incorrect basis for admitting evidence can be viewed as employment of an erroneous rationale,” and, thus, that Hamlett‘s categories are “not mutually exclusive.” Maj. Op. at 11. Rejecting Hamlett‘s lexicon, however, does not result inexorably in a functional equivalence between the harmless error and right-for-any-reason doctrines. I find that Hamlett‘s classification scheme presents a useful exercise, but it merely places a label
Of course, an immediate and dispositive distinction is that the harmless error doctrine always has imposed a burden upon the prosecution, while the right-for-any-reason doctrine places no parallel burden upon the party seeking its benefit. But that is not even the most obvious difference. As evidenced by their very names, the doctrines pose different questions to the court. When an appellate court applies the right-for-any-reason doctrine, it ultimately finds no reversible error, because the challenged decision was “right,” for a different reason than was articulated below. The right-for-any-reason doctrine asks the question: “Was the challenged action erroneous?” Harmless error, by contrast, is a question of effect—once аn error has been found, harmless error doctrine asks the question: “Did the error change the outcome?”
The right-for-any-reason doctrine is best conceptualized as allowing for the identification of an alternative, valid, legal justification for a challenged action. “We have often stated that where a court makes a correct ruling, order, decision, judgment or decree, but assigns an erroneous reason for its action, an appellate court will affirm the action of the court below and assign the proper reason therefor.” Bearoff, 327 A.2d at 76 (emphasis added; capitalization modified). It is self-evident that an “error” is not a “correct ruling” suitable for disposition under the right-for-any-reason doctrine. Rather, an error is an error, suitable for analysis under the harmless error doctrine.
An archetypal example of the right-for-any-reason precept occurs when the trial court offers a flawed rationale for its decision to admit a challenged piece of evidence, but the facts nonetheless support the admission of that evidence for a different reason or pursuant to a different rule. To perform the right-for-any-reason analysis in such a case, the appellate court merely must assess whether the established evidence of record
The right-for-any-reason doctrine does not require the appellate court to consider the effect of an error on the totality of the proceedings. The analysis does not require a speculative inquiry into the likely impact upon a juror of hearing erroneously admitted evidence, or an examination of whether the evidence may have strengthened certain arguments in the eyes of a juror or called others into question, or—ultimately—a determination that the jury still would have returned a guilty verdict absent the evidence. These latter inquiries are hallmarks of the challenges underlying harmless error. Where the right-for-any-reason doctrine is concerned with legal justifications, harmless error is essentially more of a factual judgment than a legal one—whether, under the facts and circumstances presented, beyond a reasonable doubt, a jury would have returned the same verdict regardless of the error.
Answering the harmlessness question, moreover, poses intractable difficulties stemming from the inherent limitations of appellate review. Quoting California Chief Justice Roger Traynor‘s famous treatise on harmless error, this Court in Story observed:
The appellate court is limited to the mute record made below. Many factors may affect the probative value of testimony, such as age . . . intelligence, experience, occupation, demeanor, or temperament of the witness. A trial court or jury before whom witnesses appear is at least in a position to take
note of such factors. An appellate court has no way of doing so. It cannot know whether a witness answered some questions forthrightly but evaded others. It may find an answer convincing and truthful in written form that may have sounded unreliable at the time it was given. A wellphrased sentence in the record may have seemed rehearsed at trial. A clumsy sentence in the record may not convey the ring of truth that attended it when the witness groped his way to its articulation. What clues are there in cold print to indicate where thе truth lies? What clues are there to indicate where the half-truth lies?
Story, 383 A.2d at 168 (quoting Roger J. Traynor, The Riddle of Harmless Error 20-21 (1970)).
This Court has developed certain guidelines in order to make our journey into these unfamiliar waters more comfortable—such as requiring that harmlessness be predicated upon uncontradicted evidence so as to avoid the morass of appellate credibility determinations. See Story, 383 A.2d at 166-68. This Court also has overlooked those guidelines in our sua sponte pursuit of the doctrine. See Hitcho, 123 A.3d at 748. The truth of the matter is that harmless error analysis remains a challenging task in a significant number of cases. The endeavor is unavoidably speculative. The doctrine asks appellate judges to evaluate and assess the persuasiveness of the entirety of an evidentiary record, to run a hypothetical trial in our minds sanitized of the legal error before us, while setting aside our own suspicions as to the guilt or innocence of the accused (which may indeed be influenced by the error at issue), and to opine conclusively as to how a hypothetical jury would have viewed a hypothetical body of evidence.9 This is
The Majority may dismiss Hamlett, or me, as “impugning harmless-error review as such, as distinguished from the sua sponte aspect.” Maj. Op. at 11 n.9. But by these observations, I mean to reveal disparities between the doctrines before us, to the extent that those disparities tend to undercut the Majority‘s thinly supported assertion that one doctrine may be viewed as a mere application of the other.10 Given the specific challenge
Perhaps some additional insight into the Majority‘s reasoning may be gleaned from its summary of the Commonwealth‘s arguments, inasmuch as the Majority “agree[s] with the Commonwealth in all material respects.” Maj. Op. at 8. Accordingly, one may presume that the Majority endorses at least all of the Commonwealth‘s arguments that it summarizes in its Opinion. Concerning the absence of the Commonwealth‘s burden when the court pursues harmless error sua sponte under the right-for-any-reason doctrine, the Majority favorably quotes the Commonwealth‘s reliance upon a “core precept underlying the right-for-any-reason doctrine, which is that only appellants are charged with issue preservation obligations, whereas appellees bear none.” Id. (citing Brief for Commonwealth at 42) (emphasis in original). Hamlett‘s position, the Majority and the Commonwealth fret, might “upend this conventional approach to issue preservation by imposing waiver, or its functional equivalent, on the government as appellee.” Id. (citing Brief for Commonwealth at 7, 42).
First of all, it is curious that the Majority would deem “issue preservation obligations” to be a “core precept” of the right-for-any-reason doctrine, for it apparently does not view the prosecution‘s burden of persuasion to be a “core precept” of the harmless error doctrine. The prosecution‘s burden is indeed a “core precept” of harmless error; in fact, it is the “second general precept” underlying the doctrine. Davis, 305 A.2d at 719; see supra at 7; see also supra n.1. When harmless error “functions as the
In any event, the Commonwealth‘s focus upon the absence of an issue-preservation obligation upon appellees is a non sequitur. Maj. Op. at 8; Brief for Commonwealth at 42, 46. We have never suggested that the Commonwealth‘s burden is one of issue-preservation; the Commonwealth need not raise the issue before the trial court in the first instance on pain of waiver. Its burden is one of persuasion, and may be satisfied by offering argument to the reviewing court for the first time on appeal. The absence of an issue-preservation burden upon appellees, thus, is irrelevant. The point would be roughly equivalent to suggesting that a court may research, litigate, and rule upon a claim that the appellant fails to assert in its brief, simply because the appellant preserved an objection and included the issue in its
We speak of a burden of persuasion. Even if one assumes that it would be absurd or unreasonable to impose an issue-preservation burden upon the Commonwealth as to the harmlessness question, the suggestion of the Commonwealth‘s “waiver” would not follow from failure to preserve an issue. A finding of waiver is not a ludicrous response to an observation that a litigant has failed to develop advocacy on a question as to which it bears the burden. Even guiding federal jurisprudence, to which the Majority adverts but does not discuss, recognizes the government‘s failure to advocate as precisely this sort of “waiver.” Giovannetti, 928 F.2d at 226; see infra at 38-40; but see Maj. Op. at 10 n.7. The point that the Majority appears not to appreciate is that we will enforce an appellant‘s
After its diversion into issue-preservation concerns, the Majority next favorably quotes a set of excuses that the Commonwealth provides as to why it is onerous for it to carry its burden of persuasion—a point that strikes me less as concerning the right-for-any-reason doctrine and more as an argument in favor of overruling Story, but I digress. The Majority summarizes the Commonwealth‘s assertion that “there are many reasons why advocates representing appellees may refrain from presenting certain alternative arguments, such as out of a concern that such references might dilute the strength of primary contentions, or on account of word-count limitations on briefing.” Id. (citing Brief for Commonwealth at 43, 50). The Commonwealth, and by extension the Majority, seems to question whether our courts are capable of effectively weighing a legal argument that is followed by an alternative analysis. I am not so skeptical of our appellate jurists’ abilities. Able lawyers themselves, I am confident that they can identify and recognize the purpose of an alternative argument. There is no reason to believe that courts will suddenly begin to overlook meritorious legal arguments because the Commonwealth also argues, in the alternative, that the asserted error was harmless. As for word-count limitations, we do not allow such requirements to serve as an excuse for any other litigant to fail to advocate for his or her position, and they manage to do so even in highly complex cases. And, of course, if the Commonwealth fears that presenting arguments to the court will cause it to expend the 14,000 words allotted to it, it remains free to seek the court‘s
The right-for-any-reason and harmless error doctrines may ultimately serve similar ends—affirmance—but they are not the same doctrine. In the Majority‘s conflation of them, the obligation of the Commonwealth to advocate for its position has gone missing. The Majority asserts that what it describes is an invocation of the “right-for-any-reason precept” to apply the harmless error doctrine as the “underlying substantive principle of law,” Maj. Op. at 9, but I fail to understand why the “second general precept” of the harmless error doctrine, Davis, 305 A.2d at 719, simply disappears from the analysis. Because core precepts of these doctrines stand in clear tension with one another, perhaps the analysis is not as straightforward as the Majority suggests.
C. Judicial Impartiality
Hamlett further contends that sua sponte harmlessness findings are in tension with the fundamental obligation of the judiciary to remain neutral and impartial. He reminds us that the adversarial process, essential to the American model of criminal justice, has two central components: “(1) neutral and passive decision makers and (2) party presentation of evidence and arguments.” Brief for Hamlett at 38 (quoting Adam A. Milani & Michael R. Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 Tenn. L. Rev. 245, 272 (2002)). Hamlett argues that the practice of raising and deciding issues sua sponte, harmless error in particular, stands in tension with the well-understood role of appellate courts, articulately described by then-Judge Antonin
The Majority rejects Hamlett‘s argument without substantial discussion, adverting again to principles of judicial economy and the “larger concerns” of the “social costs of retrial.” Maj. Op. at 10. I believe that those latter interests are largely the responsibility of the Commonwealth to advance, if it so desires. I also find the perceived neutrality of the judiciary to be an exceptionally weighty concern. Hamlett‘s observations ring true in many respects. Although there are other issues that a court may raise sua sponte pursuant to longstanding precedent, I can conjure no other circumstance where a party has an express and established burden to prove a particular assertion, yet the court may excuse that burden, take it upon itself, and declare victory for the party who has done nothing to claim it. Earlier in this opinion, I characterized the finding of harmlessness as a “knockout blow,” inasmuch as it adversely disposes of the appellant‘s claim of error.
At the very least, the continued absence of guidance from this Court as to when the harmlessness question may or should be raised sua sponte—a problem that persists through today‘s decision—allows for inconsistent application and potentially arbitrary results. As it stands now, different panels of our Superior Court may take wholly different approaches. One panel finding an error may observe that the words “harmless error” appear nowhere in the Commonwealth‘s brief, and simply reverse. Another panel may take that same appeal and same error, and proceed to a harmlessness inquiry sua sponte. Further, without guidance or argument from the parties, panels undertaking the inquiry sua sponte may emphasize different aspects of the case, or find something in the record that others might overlook on their self-guided tour, leading panels to reach very different conclusions on the question. The fault for inconsistency in the case law, however, lies not with the Superior Court. The Commonwealth is not to blame either, even though the routine absence of its advocacy is the source of many of the identified ills. The fault lies with this Court, which gradually has eroded the Commonwealth‘s burden, but has left our lower courts without guidelines for sua sponte application of the doctrine.
Concern for evenhandedness would appear to be particularly acute in this context, inasmuch as a finding of harmlessness always redounds to the benefit of the prosecution, never to the defense. Perhaps this is why a portion of the Commonwealth‘s argument
D. Due Process
The Majority rejects Hamlett‘s due process argument in one paragraph, with two indirect responses. Hamlett develops an intriguing claim. He begins with the most fundamental command of due process: “that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Brief for Hamlett at 30 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). The critical right to be heard “has little reality or worth unless
Notably, unlike the United States Constitution, the Pennsylvania Constitution expressly guarantees the right to appeal.13 Accordingly, in this Commonwealth, a convicted defendant has an express right to appeal his judgment of sentence, and has а right to due process, which, at a minimum, contemplates notice and an opportunity to be heard before the disposition of a matter in which his life or liberty is at stake. At least in this context,14 merely combining a few fundamental propositions of law reveals that Hamlett‘s suggestion is compelling.
The Majority provides one additional reason to dispense with Hamlett‘s due process argument. The Majority states: “In cases in which harmlessness may be a
First, this is nothing more than improper burden-shifting. The Majority seems to be giving standing instructions to defense attorneys that, if they wish to represent their clients “ably,” perhaps effectively, they had better argue against harmlessness as a matter of course, lest the Commonwealth fail to meet its burden and the appellate court choose to tag itself in. This strikes me as no different than inverting the Commonwealth‘s burden and placing it upon defense counsel. The Majority cautions against the right-for-any-reason doctrine imposing a “high barrier to reversal,” id. at 11, but it imposes ever more hurdles to relief. Where once the Commonwealth had a burden to establish harmless error, now the Majority expects “able” defense counsel to anticipate that the Commonwealth will fail to advocate for its position, and it instructs defense counsel, on counsel‘s own initiative, to expend additional resources to rebut an argument that has not yet been made, as to which the Commonwealth nominally has the burden of persuasion and the defense accordingly should stand in a responsive posture, so as to persuade the court that the substantive legal error, which defense counsel will have just proven on the merits, is worthy of relief—all of this depending, of course, upon whether the court employs its discretion to consider harmless error at all. The Majority instructs defense attorneys not only to satisfy their own burdens to prove legal error, but also to rebut, in advance, the argument that the Commonwealth might or might not choose to make, and that the court might or might not choose to undertake. The Majority not only shuffles the responsibility for the doctrine ovеr to defense counsel, it asks defense counsel to go first.
Is the Commonwealth not an “able” advocate for its own position?
Second, the Majority‘s comment on the duties of able defense counsel arises in the context of a due process claim regarding the deprivation of notice and an opportunity to be heard on a critical matter. To my knowledge, due process jurisprudence has never placed the onus upon the individual subject to the deprivation to anticipate such deprivation and launch a prophylactic challenge thereto. To the contrary, it is inherent in the concept of “notice” that the individual is to be provided with notice of adverse action; he is not expected to divine and preempt it. See, e.g., Mullane, 339 U.S. at 314 (“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.“) (emphasis added).
Third, the Majority‘s suggestion to able defense counsel overlooks our own precedent. In the Mitchell footnote, itself—the beginning of this line of cases that has usurped Story—this Court used an able defense attorney‘s proactive advocacy as a substitute for the Commonwealth‘s burden, and went so far as to suggest that our consideration of harmless error therefore was not even an action taken sua sponte. See Mitchell, 839 A.2d at 215 n.11; supra at 8. We then overlooked the Commonwealth‘s dereliction, and ruled against the appellant. Today‘s Majority does not suggest its disapproval of the Mitchell footnote, and indeed it directly embraces the legal approach that Mitchell piоneered, or clumsily engrafted upon our case law. Against the backdrop of the precedent challenged in the very case before us, the Majority‘s suggestion that able
The Majority speaks of what it deems to be the current state of Pennsylvania law, and lauds its “due and appropriate regard for defendants’ substantive rights.” Maj. Op. at 6-7. I see due and appropriate regard in Story. I do not find it in the Mitchell footnote, or in Hitcho. I see a credible assertion of a substantive constitutional right in this case, which the Majority dodges with arguments that do not respond to the deprivation that both Hamlett and amicus have identified and placed squarely within this Court‘s view. I do not doubt that the law on this question can reflect a better balance between “the promotion of judicial economy” and the “due and appropriate regard for defendants’ substantive rights.” Maj. Op. at 7. The law can require the Commonwealth to advocate for the Commonwealth‘s position, can demand that the defense be given notice and an opportunity to respond, and can tell the court to simply adjudicate rather than attempt to play judge, prosecutor, and defense counsel all at once.
Harmless error is often the line between a new trial and many years in prison. Where the stakes are such, it is only fair to provide the interested party with notice that the issue is under consideration, and with an opportunity to speak on the matter through counsel. Regardless of whether the deprivation of that notice and opportunity constitutes a due process violation, it certainly is less than a completely fair practice. The Majority seems to recognize as much, at least by implication. See Maj. Op. at 12 (suggesting that a court considering harmlessness sua sponte in “close cases” may order supplemental briefing in order to “enhance fairness to the defendant“). Every defendant should be entitled to fairness; fairnеss should not need to be “enhanced” in any particular case. The way to encourage evenhanded treatment is to set a consistent standard and then apply it rigorously. Due process or not, that is simply a matter of good judicial practice.
All participants here—the parties, the Majority, the Concurrence, and myself—have made some references to federal harmless error practice. Both the Majority and the Concurrence refer to the standard for sua sponte consideration of harmless error outlined in the Seventh Circuit‘s oft-cited, per curiam decision in Giovannetti, 928 F.2d 225, though they do not discuss its details. See Maj. Op. at 12 n.10; Conc. Op. at 2 (Donohue, J.). Giovannetti also appears in the advocacy of the parties. Accordingly, it is worth considering the legal analysis to which the parties, the Majority, and the Concurrence all refer, alongside a recognition of the ways in which Pennsylvania jurisprudence differs from its federal counterpart on matters of harmless error.
Federal criminal law provides for harmless error analysis by statute and rule, neither of which have a corollary in Pennsylvania criminal law. Both the federal statute and rule direct a reviewing court, in mandatory language, to disregard any error that does not affect the “substantial rights” of a party. Brief for Hamlett at 26-27 & nn. 17-18 (quoting
Also noteworthy, in my view, is that the Supreme Court of the United States has described the harmless error inquiry under the Federal Rules of Criminal Procedure as the inverse of the appellant‘s burden to prove plain error. See United States v. Olano, 507 U.S. 725, 734 (1993) (“When the defendant has made a timely objection to an error аnd Rule 52(a) [(harmless error)] applies, a court of appeals normally engages in a specific analysis of the district court record—a so-called ‘harmless error’ inquiry—to determine whether the error was prejudicial. Rule 52(b) [(plain error)] normally requires the same kind of inquiry, with one important difference: It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.“). Unlike the federal judiciary, this Court does not recognize the plain error doctrine; rather, we strictly adhere to a paradigm of issue-preservation and waiver. See generally
Earlier I quoted the Seventh Circuit‘s per curiam decision in Giovannetti for its observation that conducting a harmless error analysis sua sponte “would place a heavy burden on the reviewing court.” Giovannetti, 928 F.2d at 226; supra at 17. The court discussed this labor while rejecting the government‘s primary argument: that the government‘s harmless error arguments, themselves, are “nonwaivable.” Id. at 226. The court rejected the government‘s contention that the mandatory language of
Despite its deep reservations about sua sponte use of the harmless error doctrine, and despite its refusal to excuse the government‘s waiver in the very case before it, the Giovannetti court nonetheless developed a multifactorial test pursuant to which a court may “overlook” the government‘s waiver and proceed sua sponte. Id. at 227. The “controlling considerations,” the court explained, are: (1) “the length and complexity of the record“; (2) “whether the harmlessness of the error or errors found is certain or debatable“; and (3) “whether a reversal will result in protracted, costly, and ultimately futile proceedings in the district court.” Id. Applying that standard, the Giovannetti court ultimately concluded that the case before it did not warrant sua sponte consideration of harmless error, and it accordingly “decline[d] to relieve the government from the consequences of its failure to raise the issue of harmless error in its brief on appeal.” Id.
Regardless, the third Giovannetti factor—avoidance of “costly” but “ultimately futile” retrials—is merely a reference to the concerns with judicial economy that undergird the whole doctrine, not a helpful or case-specific consideration. The Majority refers in passing to the second Giovannetti factor, which I take to be the essence of the test: that the court should be “certain” that the error is harmless, and should not conduct the inquiry if it is “debatable.” Giovannetti, 928 F.2d at 227. It remains mysterious to me how one
Contrary to what may be the tacit suggestion of either the Majority or the Concurrence, or both, the Giovannetti test is not fit for this inquiry. A nоtable feature of many decisions applying Giovannetti or inquiries like it in other jurisdictions is some measure of caution in the approach, and some recognition of the potential downsides of sua sponte review. See, e.g., Gonzales-Flores, 418 F.3d at 1101 (“[W]e are particularly sensitive to the . . . concerns that sua sponte consideration of harmlessness will often burden reviewing courts and give the government too many chances to argue harmless error. Even more troubling, the practice may unfairly tilt the scales of justice by authorizing courts to construct the government‘s best arguments for it without providing the defendant with a chance to respond. . . . We therefore conclude that sua sponte recognition of an error‘s harmlessness is appropriate only where the harmlessness of the error is not reasonably debatable.“) (emphasis in original); People v. Sandoval, 363 P.3d 41, 78 (Cal. 2015) (“Courts in other jurisdictions have warned of ‘the dangers of allowing
The Majority attempts to echo some of this caution, noting that many federal courts generally find sua sponte harmless error review to be “extraordinary” and that it “should be disfavored.” Maj. Op. at 12.16 The Majority urges that its approach “not be routinely or liberally employed to impose a high barrier to reversal of criminal convictions.” Id. at 11. However, the Majority sets no meaningful standard, and it proposes no guardrails to ameliorate the worst of the dangers of its holding. The Majority does not even attempt to set forth any specific considerations along the lines of the Giovannetti test, flawed though that test may be. The Majority seemingly has left us with among the most amorphous of rules in the nation, leading the Concurrence to note the Majority‘s reference to Giovannetti, and to ponder a “question left unanswered” by the Majority. Conc. Op. at 2 (Donohue, J.). The question that the Concurrence believes the Majority has left unanswered is not an insignificant one: “What is the relevant test for determining whether an error affected the outcome when harmless error is invoked sua sponte?” Id. I wish to
IV.
The Majority does not speak to the facts, and alludes only generally to the substance of the Superior Court‘s sua sponte application of the harmless error doctrine in this case. See supra n.2; Maj. Op. at 1-2, 3 n.2. Although the Majority considers the substance of the case before us to be outside the scope of the question presented, its approval of sua sponte review for harmless error suggests that we may consider the matter irrespective of the parties’ advocacy. I do not feel it improper, then, to exercise my discretion to consider the very finding of harmless error that precipitated the instant appeal. But we need not dwell on the matter, for only a small amount of additional detail reveals significant problems.
The Majority relates that the Superior Court found error in the admission into evidence of a video-recorded forensic interview with the victim of the alleged sexual assault, but the Superior Court deemed the error harmless, sua sponte, because it found the video to be merely cumulative of properly-admitted evidence in the form of the victim‘s testimony. Maj. Op. at 1-2. To reach that point, however, the Superior Court undertook a thorough analysis of
The court further noted that Hamlett testified in his own defense, and it did not purport to base its conclusion upon overwhelming and uncontradicted evidence of Hamlett‘s guilt, but rather upon the “merely cumulative” variety of harmless error. Yet, the court saw fit to predict the manner in which the jury would have viewed the credibility of competing testimony, but for the error. Hamlett understandably asserted that the impermissible corroboration of the victim‘s in-court testimony may have prejudiced him in the eyes of the jury, inasmuch as the video could tend to bolster the credibility of the victim‘s in-court testimony. The Superior Court disagreed:
The jur[ors] heard from [the victim] under oath and their fundamental task was to weigh the credibility of her story against that of [Hamlett], who testified in his own defense. While we agree that our evidentiary rules prefer to avoid prior consistent statements, as set forth at length supra, we do not believe that the jury would be unduly swayed by the knowledge [the victim] previously related the same story. Indeed, the jury presumptively assumed that was the case. Thus, while there was no need to buttress her testimony, the recorded statement was merely cumulative and harmless beyond a reasonable doubt. [Hamlett] is therefore not entitled to a new triаl despite the error.
Hamlett, slip op. at 30, 2018 WL 4327391, at *14 (citation omitted).
This was not a sufficient application of any of the harmless error standards discussed in Story. See supra n.6. The analysis of the cumulative nature of the evidence was nonresponsive to the nature of the error, and the evidence that otherwise might have been deemed “overwhelming” was expressly contradicted. It requires an appellate credibility determination to say that an error such as this was harmless. To do so, the appellate court must step into the juror box. The “superficiality” that the Majority rightly criticizes is present in the very case before us. Maj. Op. at 12. Here, the “right-for-any-reason doctrine” was indeed “routinely” and “liberally” employed to “impose a high barrier to reversal” of a criminal conviction. Id. at 11. Hamlett merely points to ills in our jurisprudence that appear plainly in the pages before us, which continue to echo the flaws in cases like Mitchell and Hitcho.
Future courts and litigants will research this question, they will find our decision today, and they will rely upon it. Particularly given this Court‘s admonition that “decisions are to be read against their facts,” Maloney v. Valley Med. Facilities, Inc., 984 A.2d 478, 489 (Pa. 2009),18 I can only presume that many of those courts and litigants will consult
V.
Our harmless error jurisprudence has gone astray because we have eroded one of its foundations. We have before us the opportunity to rein in the worst of its potential for misuse. The problems are apparent in our own precedent and in the very case before us. The Majority sees at least some of these problems, and it criticizes the “superficiality” with which harmlessness is commonly discerned. Maj. Op. at 12. But today the Majority declines the opportunity to do anything about it.
Instead, the Majority places all of these weighty considerations within the sole discretion of the appellate court, but it offers no test, no set of factors, no interests to
To that end, I reiterate that the most straightforward solution is simply to resuscitate and then enforce the Commonwealth‘s burden of persuasion on appeal. The Commonwealth‘s principal brief is the best place to carry its burden, thereby allowing the appellant to address the Commonwealth‘s argument in a reply brief in the ordinary course.
The Commonwealth is the best and most able advocate for its own position, particularly as it concerns a highly record-intensive inquiry such as harmless error. Our appellate courts are busy, and I see no compelling reason why the Commonwealth‘s work should ever fall to the court, for that does not advance judicial economy. Thus, should the Commonwealth fail to advance a harmless error argument, or should it be expected to fail so regularly as to require us to place a safety valve in our jurisprudence, I view a focused briefing procedure to be the only possible solution that would achieve a more fair balance of harms, relative to the alternative of standardless exercises in sua sponte
A supplemental briefing procedure also would have clear downsides, in that it would result in quite a bit of additional delay for appellants, who often are incarcerated and eagerly awaiting resolution of their appeals. A significant increase in the volume of briefs filed also surely would place an additional administrative burden upon our prothonotaries. Accordingly, the Commonwealth‘s principal brief remains the best place for the argument, and the court should not have to invite the Commonwealth to carry its burden. To the extent that our courts lack the will to enforce the Commonwealth‘s burden with the threat of reversal, however, I would not exclude the possibility that certain deficiencies in our practice perhaps could be mitigated by a nuanced and informed rulemaking process. The Court need only find the will to try.
I would insist upon a clear and predictable standard that calls for adversarial presentation of argument to the court. Such a standard would require the party with the burden to develop the issue, provide the party with the rights with an opportunity to
Because the Majority has a very different vision and arrives at a markedly different conclusion, I respectfully dissent.
Notes
Can the tension between the well-settled rule that the Commonwealth bears the burden of demonstrating harmless error beyond a reasonable doubt and the contradictory principle that an appellate court has the ability to affirm a valid judgment or verdict for any reason appearing as of record be reconciled? If these conflicting principles must be reconciled in favor of the Commonwealth proving harmlessness beyond a reasonable doubt, did the Superior Court err in finding harmless error sua sponte?
Commonwealth v. Hamlett, 202 A.3d 45 (Pa. 2019) (per curiam).The Majority states that, due to Hamlett‘s framing of the appeal, “the issue does not encompass the narrower question of whether the Superior Court may have erred in the substantive aspects of its harmless-error review.” Maj. Op. at 3 n.2. However, because this Court rephrased the question presented, this conclusion is somewhat suspect. Because it is emblematic of certain problems in our jurisprudence, and because the Majority holds that such analyses may be conducted sua sponte in any event, I bеlieve that the Superior Court‘s present application of the harmless error doctrine warrants at least brief comment. See infra Part IV.
Commonwealth v. Petroll, 738 A.2d 993, 1005 (Pa. 1999) (emphasis added).Harmless error exists if the reviewing court is convinced from the record that (1) the error did not prejudice the defendant or the prejudice was de minimis, (2) the erroneously admitted evidence was merely cumulative of other untainted evidence, or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the guilty verdict.
As the Majority notes, Justice Baer‘s concurrence in Hicks also recognized our precedential conflict, but resolved it in favor of sua sponte invocation of harmless error via the right-for-any-reason doctrine. Maj. Op. at 3; Hicks, 156 A.3d at 1140 (Baer, J., concurring). Because this rationale is duplicative of that of the Mitchell line of cases, and reflects the same reasoning that the Majority adopts today, I will not separately address Justice Baer‘s comments in Hicks.
For its recourse to Georgia law, the Majority invokes Jones v. State, 802 S.E.2d 234, 237 (Ga. 2017) (admission of prior bad acts evidence “was harmless as to appellant‘s conviction and sentence . . . and so the Court of Appeals’ judgment is affirmed as right for any reason“); see Maj. Op. at 9. However, the same tension that the Mitchell footnote has engendered in Pennsylvania appears to afflict Georgia‘s jurisprudence in precisely thе same way. The Jones Court did not refer to the harmless error rule as imposing a “burden” at all, despite the Georgia Supreme Court‘s recognition of that burden with respect to evidentiary errors like that found in Jones, even in cases decided in the same year as Jones. See Bozzie v. State, 808 S.E.2d 671, 677 (Ga. 2017) (“For nonconstitutional harmless error, the State has the burden to show that it was highly probable that the error did not contribute to the verdict.“). Although the Majority establishes that we are not alone in rendering incompatible pronouncements on harmless error, nothing in Jones helps to reconcile the incongruity between unfettered sua sponte review and the recognition of a burden imposed upon a party.
Hamlett‘s invocation of due process also is echoed by the only amicus curiae participating in this appeal. See Brief for Amicus Curiae Pennsylvania Association of Criminal Defense Lawyers at 4-12 (arguing that sua sponte findings of harmless error deprive the appellant of the right to counsel and the due process right to notice and an opportunity to be heard).
(c) Witness‘s Prior Consistent Statement to Rehabilitate. Evidence of a witness‘s prior consistent statement is admissible to rehabilitate the witness‘s credibility if the opposing party is given an opportunity to cross-examine the witness about the statement and the statement is offered to rebut an express or implied charge of:
(1) fabrication, bias, improper influence or motive, or faulty memory and the statement was made before that which has been charged existed or arose; or
(2) having made a prior inconsistent statement, which the witness has denied or explained, and the consistent statement supports the witness‘s denial or explanation.