Commonwealth v. Story

Pennsylvania COMMONWEALTH of STORY, Appellant. Stanton Supreme Court Pennsylvania.

Argued April 1977.

Decided Jan. White, Sharon, I. Gettleman, Leonard Paul R. Welsh S. for Pittsburgh, appellant. Eberhardt, Colville, E. Dist. Robert L. Atty.,

Robert Johns, Pittsburgh, appel- Asst. Dist. Attys., Charles W. lee. O’BRIEN, ROBERTS, EAGEN, J.,

Before C. POM- MANDERINO, EROY, NIX and JJ.

OPINION OF THE COURT ROBERTS, Justice. 3, 1974, Wallace,

On Patrick July Pittsburgh police officer, was shot and killed. Appellant, Stanton was Story, later arrested and with the murder. After a charged trial, he was found of the first murder guilty degree. Post-verdict motions were denied and a sentence of death was imposed.1

In contends he was denied a appellant this appeal,2 fair trial because the trial Common permitted wealth to introduce irrelevant and evidence con prejudicial cerning victim’s life and family professional reputation. We reverse of sentence and agree,3 judgment grant appel lant a new trial.4

1. The imposed death pursuant sentence was to 18 Pa.C.S.A. 1102 § (1973) and 18 (Supp.1977). Pa.C.S.A. 1311 § appeal pursuant Appellate 2. We hear this to the Court Jurisdiction 31, 1970, II, July 202(1), Act of Act of P.L. art. 17 P.S. § 211.202(1) (Supp.1977). § ground, 3. Because we appel- reverse on this we need not address remaining (1) lant’s grant refusing claims that: the trial court erred in change venue; (2) a motion for a the trial court erred in disclosing concerning trial, prosecution, to the before defense counsel’s offer expected witness; of a defense the trial admitting guns court erred in into evidence three which were found appellant’s possession at the time of his arrest two months after shooting; (4) refusing the to refusing appellant the trial court erred to allow testify concerning police; (5) his fear of the the trial court erred in permit appellant concerning to examine a defense witness prosecution inducements offered if the witness testified against appellant; (6) prejudicial the trial court made remarks in its charge ny jury; (7) excluding the trial court erred in the testimo- preferred witness; (8) penalty of a defense the death should be improperly vacated because veniremen were excluded for cause even though they automatically against was not clear that would vote imposition capital punishment; (9) procedure the voir dire competent, fair, impartial jury; (10) insufficient to ensure a penalty (a) imposition death should be vacated because its in this States, case would violate Jackson v. United 390 U.S. 88 S.Ct. (1968); (b) penalty 20 L.Ed.2d 138 statute violates the eighth and fourteenth amendments of the United States Constitution

I A. Wallace, trial, Marilyn At the Commonwealth called After widow, appellant as its second witness. the victim’s the Commonwealth stated that proof, an offer of sought of (1) Wallace for the introduc Marilyn purpose was calling of the victim and his which Mari daughter ing photographs vacation; was on Wallace had taken lyn family when status; (3) that Mari relating the victim’s describing family had last seen her husband alive on the morning Wallace lyn events, killed; other of a (4) presenting that he was and testi objected proposed nature. personal Appellant it was irrelevant and highly on the ground mony overruled the objection The trial court prejudicial. to testify. Wallace permitted Marilyn testified that she married the victim on Wallace Marilyn 22,1966, and that had a six old January they year daughter Ann, named Jennifer who school at the home for attended further children. She testified that she was em- crippled after her husband’s death ployed by county police. Only did she that her begin working. She stated husband had been as a officer for five that he was employed police years, in the armed forces reserves and was at attending college the time of his death. Wallace also testified that Marilyn she last her on the that he morning saw husband alive permit jury adequate range

because it does not to consider an circumstances; mitigating (c) penalty the death statute allocates the process; (d) proof burden of in a manner which violates due stage charging penalty trial at court erred appellant age. was of Appellant does not contend that the evidence is insufficient to However, support degree. this the verdict of murder of the first independent obligation Court has an to determine whether the evi- support degree. of murder of the first dence is sufficient a verdict February Act of P.L. 19 P.S. An § § examination of the record reveals that the evidence is sufficient support the verdict. killed5 and that she was notified of his death about noon. then two the victim with their She identified photographs on daughter which she had taken when the was family vacation in Canada. The were admitted into photographs evidence over and objection jury. shown

Appellant argues that Wallace’s and Marilyn testimony the two of the were photographs daughter victim with his irrelevant and asserts the prejudicial. that evi- Appellant dence that the victim left a widow and handicapped daughter, and that his widow was work after her forced to death, husband’s created for the victim and his sympathy and inflamed the family jury.6 Appellant argues permit

5. that it was the error for trial court to Marilyn on testify Wallace to that she had seen her last husband alive morning Appellant that he was killed. that this contends testimony was irrelevant because Commonwealth had other testify morning witnesses who could was on the victim alive July 3, Appellant testimony of relevant, 1974. if asserts that even this was prejudice outweighed probativeness. Compare its its Com- 303, (1976) Gaddy, (plurality monwealth v. opinion) 468 Pa. 362 A.2d 217 Evans, 12, and Commonwealth v. Pa. 465 State, (Fla.App.1968). with Ashmore v. So.2d Because we photographs daughter conclude that the of his the victim and and the testimony Marilyn concerning family Wallace victim’s status personal evidence, erroneously and not reach life were admitted into we need appellant’s Marilyn testimony claim that Wallace’s morning she last saw her husband alive on the that he was was killed improperly admitted into evidence. Appellant daughter contends that the evidence that the victim’s handicapped was prejudicial exacerbated the nature the evidence family argues the victim’s appel- status. The Commonwealth by prejudiced testimony lant cannot claim that he was that the daughter crippled victim’s because attended school home for children appellant on voir dire they asked the veniremen whether or Fund, their families had contributed to the Jennifer Wallace which up support daughter. help set after the victim’s death to his The part Commonwealth fails to note that all the veniremen who became they of the stated that or their families had not contributed to Moreover, question inquired only the fund. voir on dire whether jurors ques- had contributed to the Jennifer Wallace Fund. The Marilyn tion handicapped. did not reveal that Jennifer Wallace was only Wallace’s was the evidence which indicated that handicapped. Jennifer was Appellant photographs asserts that of the victim with his daughter prejudice on by a beach accentuated the created the testi- mony concerning family the victim’s life. Commonwealth con- 210, 360 A.2d 914 Walzack,

In v. 468 Pa. Commonwealth Court, Nix, for a this (1976), writing majority Mr. Justice whether determining inquiry articulated threshold into evidence. evidence is admitted properly of a admissibility particular type analysis “Any its as to inquiry must with a threshold start Jones, value. Commonwealth relevance probative 66, 10, 327 A.2d A.2d We McCusker, 448 Pa. propound- the test relevance have cited with approval authorities, Wigmore ed two leading evidentiary Jones, supra; McCormick. Commonwealth v. Common- 311 A.2d Lippert, wealth v. McCusker, supra. Wigmore Commonwealth v. axioms, terms of two ‘None but facts defines relevance in admissible,’ are and ‘All rational value having probative admissible, un- value are having probative facts rational Evidence, 1 Wigmore, less some rule forbids.’ specific Ed. the 1940). suggests McCormick (3rd 9-10 at 289-95 § relevance, . the ‘. . determining for following [d]oes more proba- render the desired inference evidence offered the it be without evidence? . ble than would then, in some degree is evidence that Relevant evidence value, has and probative the and thus advances inquiry, McCormick, admissible.’ 185 at Evidence facie prima § 1972).” (2nd Ed. 437-38 218, 360 A.2d at Pa. at

Id. 468 photographs prejudice appellant tends did not because the photographs handicapped. The did not reveal that Jennifer was point. photographs Commonwealth misses the The the victim regardless daughter prejudicial with whether his were irrelevant and they handicapped. photographs revealed that Jennifer was daughter vacationing no the victim-father with his on beach had Moreover, place appellant’s the Commonwealth is incorrect trial. photographs in its did not accentuate the testimo- contention that the ny handicapped. Although the which revealed that Jennifer was support photo- that the record does the Commonwealth’s contention handicapped, photo- graphs was do indicate Jennifer accused, jurors graphs prejudice for to the do accentuate photo- apply could their of Jennifer’s condition awareness Thus, graphs. photographs exacerbated we believe that testimony. prejudicial Marilyn nature of Wallace’s Here, Mrs. Wallace’s her concerning husband’s life, and family status and her personal description her photographs of husband with his child have no “rational probative value” to the issue whether appellant feloniously Rather, killed Patrick Wallace. this evidence extra- injected neous considerations into the case and appellant prejudiced by the victim his creating sympathy family. In its offer of proof, Commonwealth stated that that the was thought “entitled to know this man was jury married, father, he was he fact was a man.” family The prosecutor further stated that the victim “is more than a body” and that the prosecutor wanted the “to get some feel for this activity his life.” It is evident that the to explicitly sought create for the sympathy victim and his family to inflame jury against We condemn appellant. such trial tactics. As the Illinois Supreme Court has observed: defendant, crime, how no matter his reprehensible

“[The] jurors entitled have consider both the matter of his guilt and punishment, uninfluenced circumstance that decedent’s widow had been left alone with children of as ages tender the result of the homicide.” People Bernette, 30 Ill.2d 197 N.E.2d 436, 444 The Commonwealth relies on Commonwealth Ross, 195 A.2d 81 (1963), argue Wallace’s Marilyn the testimony and of photographs the victim on vacation his with on a beach were daughter relevant to demonstrate “the natural of development the facts of the case.” Ross provides no support for Commonwealth’s position. Ross was with charged of murder a woman with whom he once resided. The woman’s son was murdered at the same time. The Commonwealth called a to pathologist testify that he had an performed on the son autopsy and that the son had died from a gunshot wound. The defendant con- tended that it was error prejudicial to permit any testimony that the son died as a result of the shooting. In affirming the admission of evidence, this this that, Court noted ordi- of narily, evidence of commission a crime other than the 400 is the defendant is tried not admissible. being

one which rule is where We stated an to this exception recognized that “ scienter, ‘intent, act is to show the criminal or bad used motive, organi- or the accused to be one of an plan identity, to commit crimes of the sort together zation banded or act formed or such conviction criminal charged, prior acts, was a or chain, sequence of or one of of part trial, part of the event on or was part history became of the . Id. at of the facts . . development natural 83; Williams,307 40, 195 A.2d v. at quoting altered). 602, 160 A. (emphasis 607 is to designed give enunciated in Ross principle of fact information when such information background trier forms episode is understand the criminal which necessary to Here, evidence against the basis of the accused. charges the victim life and the family photographs victim’s his shed no on the criminal light with daughter absolutely This which resulted Patrick Wallace’s death. episode “the natural development evidence had no relevance to the facts” of this case. wheth jurisdictions which have addressed the issue

Other is family probative er evidence of a murder victim’s status have held such evidence irrelevant and prejudicial State, v. 273 Ala. 142 the accused. So.2d Knight See 13 State, v. Ark. 388 (1962); 899 Walker 239 S.W.2d State, v. 97 (1965); (Fla.Dist.Ct.App.1972); Foster So.2d dismissed, State, v. 133 (Fla.App.), appeal Wolfe So.2d Bernette, v. Ill.2d (Fla.1967); People So.2d Miller, 197 N.E.2d 436 N.Y.2d People 160 N.E.2d N.Y.S.2d Miller,

In the brother of the murder People supra, concerning victim testified his identification of the victim He was asked wife morgue. whether victim had a that it Appeals and children. The New York Court held permit was error to the victim prejudicial children, had a wife for such had “no and seven on the issues bearing materiality jury, before appeal passion sympathy calculated [and] . The court concluded that . . “[t]here to conjure be no to this line of but could purpose prejudice against in the minds of the undue up jurors 539, 160 N.E.2d at Id. at defendant.” N.Y.S.2d 77. into

The Illinois Court held that the admission Supreme error in evidence of the victim’s status was reversible family The court stated: Bernette, supra. People “A must be established by legal defendant’s guilt evidence, bias and prejudice uninfluenced competent by and, raised in such connection this irrelevant evidence evi- condemned the admission of court has consistently and a inas- family, dence that the deceased left a spouse or guilt much as such evidence has no to the relationship to be inflicted innocence of the accused or punishment him, him prejudice but serves upon only ordinarily ”. . . eyes the jury. omitted). (citations 30 Ill. at 197 N.E.2d at State, In Knight v. the Alabama Court supra, Supreme observed: had,

“How children the many ages slain man their . are evidence irrelevant facts . . hold such . . [T]o the reali- prejudicial disregard defendant is ties of trial and the emotional frailties of atmosphere human nature.” 491, 142 Ala. at So.2d at 910.7 State, (1965), In Walker v. 239 Ark. So.2d the Arkansas Supreme Court held that it was error to admit evidence of the Walker, family homicide victim’s status. In the victim’s wife testi- years fied that she had been married to the victim for twelve and that they children, girl eight boy had two and a of sixteen months. She also testified that the victim had been a wonderful husband. had, many The court observed that children their “[h]ow [the victim] ages, loving any whether he awas kind and husband . . . and relating good matter to his character are irrelevant facts in this case.” Id. at 388 S.W.2d at 18. State, dismissed, In (Fla.App.), appeal Wolfe v. 202 So.2d 133 (Fla. 1967), “[ejvidence So.2d 457 the court noted that of the victim’s family normally prosecution. status is inadmissible in a homicide alone, Standing irrelevant, such immaterial and highly prejudicial Accord, State, . . . .” Foster v. 266 So.2d 97 (Fla.App. 1972) (dictum). in whether evidence is ad determining

Ordinarily, trial, the probative missible at the trial court must balance Com its against prejudicial impact. ness of the evidence Ulatoski, monwealth v. n.11, 472 Pa. 371 A.2d (1977); McCormick, 191 n.11 J. Evidence at 438-40 § case, however, ed. in (2d 1972). question In this the evidence was irrelevant to the determination totally appellant’s or It for the guilt innocence. was therefore unnecessary trial court to determine whether out probativeness Fell, See Commonwealth 453 Pa. weighed prejudice. erred hold that the trial court A.2d We in Wal permitting present Marilyn Commonwealth to with his lace’s and the of the victim photographs Evidence at 304 daughter. See Wharton’s Criminal § (13th 1972) inspiring ed. which has the effect of (“Evidence the crime is prejudi- for the . . . victim of sympathy Thus, in a cial and inadmissible when otherwise irrelevant. murder, show that the for it is not prosecution permissible children .”). . . victim had a or number family specific B. asserts that the Commonwealth contin Appellant ued its inflaming against strategy appellant chief, evidence, when it in its case in presented concerning contends professional reputation.8 Appellant victim’s argues objection appellant’s ques- 8. The concerning professional reputation tion the victim’s had been sus- indicates, however, objection tained. The record that the was over- During examination, following ruled. Officer Scanlan’s direct occurred: Geary, prosecutor] “[Mr. community? thought Q. of in the Was Officer Wallace well Object that. Irrelevant. MR. GETTLEMAN [Defense counsel]: get question. THE I didn’t COURT: sir, community Q. you, thought I well of in the asked was he you patrolled? which A. Yes he was. [Officer Scanlan] by community? Q. respected Was he object you I instruct— MR. GETTLEMAN: to that and wish would question question, THE I didn’t hear the and I want the COURT: asked. it was improper the Commonwealth to present evidence of the victim’s since reputation neither appellant attacked the victim’s nor reputation asserted that the killing because justified the victim was the aggressor. We agree.

It is well established that the Commonwealth cannot offer evidence of the victim’s unless reputation and until victim’s the defense. Common reputation put issue Castellana, wealth v. 117, 121 277 Pa. (1923), A. 50 cited with Donovan, Commonwealth v. approval A.2d 116 (1972) (dictum); State, Walker v. J. supra; McCor mick, Evidence (2d at 461 1972); ed. 1 Wharton’s § Criminal Evidence 236 (13th 1972); ed. § A.L.R.3d 571 (1965). Here, did appellant not attack the victim’s reputa tion, and such evidence was therefore irrelevant to the issues before the jury.

The facts of this case are similar to those of strikingly Walker State, Walker, supra. In the defendant was you MR. please GETTLEMAN: Would instruct the witness not to rule, you please. answer before BY THE COURT: Q. you objection, If question hear an don’t answer the until the objection has been ruled on. Yes, A. sir. BY MR. GEARY: My was, Q. question Officer, you in the in area which worked for years two and a half respected with Patrick Wallace was he in that Community by people you that worked with? Object. MR. GETTLEMAN: objection

THE COURT: The is overruled. Yes, A. he was. Q. by community? Was he liked Objection. MR. GETTLEMAN: He can’t people tell whether liked him. Yes, THE COURT: I think that is true.” (emphasis added). Thus, support finding the record does not that the trial court appellant’s objection question concerning sustained whether respected community the victim was in in which he worked. The objection question court did sustain an to a whether the victim was However, ruling apparently well liked. the this based on the was form question admissibility reputation By not the evidence. -the objection sustained, already time this was the witness had stated respected community twice that Wallace was in well which he patrolled. testimony The was never informed that this disregard irrelevant or instructed to it. in its The prosecution,

accused of officer. killing police the chief of chief, police testimony by case in presented officer, liked, and did efficient well the victim was “a very 181, 239 Ark. at without complaints.” his work any testified that The chief of also police at 18. S.W.2d courtesy. a civic club for victim had received an award from the admission Court held that Supreme The Arkansas such was error. before

“This was introduced State evidence accused had not The testimony. accused had offered any man officer was a attacked the fact that this young police held . . . Our court has good reputation. should not be prosecution such evidence offered by admitted undertaken to attack the until the accused has in that . respect. character of the deceased force, on the efficiency police . [The victim’s] character are irrele- good matters to his any relating this case.” vant facts in at 18. 388 S.W.2d

Id. in

We believe the result Walker is sound. Just as the the victim left a widow and child bears no evidence innocence, so to the determination of or relationship guilt too the evidence that the victim was well respected by he has no bearing which worked people community on or innocence. appellant’s guilt victim’s for the victim and created reputation sympathy inflamed the We hold that the trial court erred in jury. evidence of the victim’s admitting professional reputation.

II The Commonwealth contends that error the admis- any sion of the Wallace and Officer testimony Marilyn Scan- lon, well as as the of the victim with his photographs daughter, agree. was harmless. We do not A. . 1 Our must with the determination of the inquiry begin in resolving standard of to be wheth proper proof employed er a non-constitutional error in a criminal prosecution harmless.

405 Where a trial error violates the federal constitu tion, Court, minimum, this at a must employ the federal harmless error rule. See California, v. Chapman 18, 386 U.S. 21, 824, 826-27, L.Ed.2d 705 A federal constitutional error cannot be found harmless unless an appellate is convinced beyond reasonable doubt that the error was harmless. Id. Where the trial error arises law, under state however, standard for proper determin ing whether such an error is harmless is a question state law.

Although this Court has held that an previously . error involving state law may harmless, be our cases have not articulated a consistent standard for determining wheth er an error is In harmless.9 order to eliminate any confusion exist,10 which may we hold that the proper standard for whether an determining error state involving law is harm less is the same as the standard this Court to federal applies constitutional error: an error can be harmless if only 9. Our cases have articulated the standard of error harmless in differ See, ways. g., Martinolich, 136, 160 ent e. v. Commonwealth 456 Pa. n.15, 680, n.15, denied, 1065, 318 A.2d cert. 419 U.S. 42 L.Ed.2d (1974) (error beyond S.Ct. 651 if harmless harmless a reason doubt); Davis, 466, 467, able Commonwealth v. 455 Pa. 317 A.2d (1974) (per (same); Canales, curiam) 422, 428, (1973) (error 311 A.2d not harmless in case erroneously where ical to admitted evidence corroborated “crit prosecution” disputed by defendant); (1972) (error Common Ravenell, wealth v. 448 Pa. 292 A.2d 365 harmless erroneously any where admitted evidence did not have influence on prejudice right the verdict and did not of the defendant to a fair trial); Fell, (1973) (error Commonwealth v. 453 Pa. 309 A.2d 417 improperly harmless where not admitted evidence cumulative and did prejudice right trial); of the defendant to a fair Common Lippert, wealth (1973) (error 454 Pa. improperly if merely harmless cumulative); admitted evidence not Settles, 159, 162, Commonwealth v. 275 A.2d (error possibly harmless if it “could have affected the [not] reaching verdict”). its 10. Commentators have criticized the confusion and lack of uniform- ity g., Traynor, application See, in the articulation and of harmless error rules. e. R. (1970); Saltzburg, The Riddle of Harmless Error Error, (1973). Harm of Harmless 59 Va.L.Rev. 988 a doubt that beyond court is convinced reasonable

appellate the harmless.11 error is us that persuade “beyond

Several considerations is the standard to proper apply a reasonable doubt” standard harmlessness of criminal trial error. any determining this is commensurate with standard First, standard be trials —that an accused cannot convicted in criminal proof a fact is convinced reasonable beyond the trier of unless Winship, In re charged. is as guilty doubt that accused In order 1068, (1970). 25 L.Ed.2d 368 358, 397 U.S. S.Ct. standard, courts of this appellate to maintain integrity determining whether standard comparable should utilize harmless. has Saltzburg Professor observed: an error was stan little sense to adopt Winship “It would make is to criminal convictions if dard, designed prevent which jurors in the minds of as is a reasonable doubt there even on to and then guilt person charged, appeal court standard when the trial evidentiary emasculate influ might rules which have has violated evidentiary requisite doubt. . creating enced the jury by be reversed where appellate must [C]onvictions error about the an impact cannot arrive at a conclusion degree certainty verdict with the same on demanded trial.” Error, 59 of Harmless Va.L.Rev.

Saltzburg, Harm omitted).12 992 (1973) (footnote the same Second, reasons for applying there are sound the error harmless error whether for determining standard addition, establishing was harmless that the error 11. In the burden of Chapman beyond doubt rests with Commonwealth. reasonable California, (1967); 17 L.Ed.2d 705 386 U.S. S.Ct. California, 20 L.Ed.2d 154 390 U.S. Fontaine v. Davis, Commonwealth v. 171, 177, Davis, Accord, 305 A.2d omitted): (citations reflects a fundamental belief that “This reasonable doubt standard established, far . error has been is worse once . . incorrectly harmless than it the error was conclude incorrectly the error reversible.” conclude or violates state federal law. rules often State implicate values, constitutional a the violation of state rule may rise of to level a federal constitutional violation. The protection rights, constitutional as well as the develop- ment aof coherent doctrine of error, harmless militate in favor of the same application standard for constitu- tional and non-constitutional errors. Because it be may unclear whether a well established state rule is also constitu- mandated,13 tionally separate harmless error standards be might prove Moreover, to unworkable. a relaxed more harmless error standard for errors as perceived violations of rules, state but which also might be violations of the federal Constitution, would leave constitutional values inadequately protected.

Third, is irrelevant whether is an error constitu tional or non-constitutional determining whether the er ror is to prejudicial the accused. Constitutional errors are not more injurious to an inherently accused than errors under state law.14 There is no reason a state why example, 13. For while the simply confrontation clause is a rule, hearsay Green, codification of the California v. 399 U.S. 1930, 1932, (1970), hearsay 90 S.Ct. 26 L.Ed.2d 489 rule and underpinnings confrontation clause have similar and the confron- may tation clause often bar admission of evidence violation of the McCormick, hearsay ly, (2d 1972). rule. J. Evidence ed. § Similar- recognize right our cases present a criminal defendant to g., Boyle, relevant evidence. E. Commonwealth v. (1977). point, right A.2d 661 At some denial of this amounts process. Mississippi, denial of due See Chambers v. 410 U.S. S.Ct. 35 L.Ed.2d 297 “Consider, instance, the introduction into evidence of con- or illegally fession dangerous admission which was obtained. evidence is likely great weight carry jury. because it is with the standpoint, But from the defendant’s it makes no difference wheth- jury verdict, confession, er an adverse based on the is reversed upon grounds illegal that the statement violates the rule federal Arizona, of Miranda v. U.S. [384 L.Ed. 694 (1966)] regarding Regardless or a state rule tacit admissions. legal theory, prevented precisely the harm the same .... impact upon It is the primarily of the error the defendant’s trial which should courts, concern the not whether the error be can labelled or constitutional non-constitutional.” to federal error standard a stricter harmless should apply rules, since the state especially rules than to constitutional fair trial.15 rules is to assure a of most state purpose error that a lenient harmless there is the danger Finally, the interests which both policies denigrate rule may rules We are promote. and non-constitutional constitutional standard a reasonable doubt” “beyond convinced that im- considerations competing reaches the balance proper The harmless error rule harmless error rule. in the plicated an accused is entitled the notion that although derives from entitled to a one. trial, perfect Thompson, he is not to a fair of Harm- Myth and the and Seizure Unconstitutional Search (1967). 457 The harmless Lawyer 42 Notre Dame Error, less of unneces- time, effort and expense rule can save the error has not been prejudiced by where the defendant retrials sary in the applying must be careful error. Id. But courts an of a rule is too rule, for if the violation harmless error effectiveness of harmless, the and importance held readily Error, Saltzburg, 1025 Harmless 59 Va.L.Rev. The Harm of Accord, Traynor, (1973) (footnotes omitted). The Riddle of Harm- R. Connecticut, (1970); Fahy 84 375 U.S. Error 47—49 less Harlan, J., (dissenting opinion 229, 234, L.Ed.2d White, Clark, JJ.): joined by Stewart and necessary connection between the “It is that there is no obvious unconstitutionally degree of seized and the fact that evidence was question error its of harmless harm caused admission. inadmissibility but on the effect on the not on the reasons for turns Erroneously particular admitted evidence in the context of a case. prejudicial may than erro- often be more ‘constitutional’ neously evidence.” admitted ‘unconstitutional’ Saltzburg 15. Professor has observed: may commonly “Although be considered the the Constitution evidentiary judicial procedure, the non-constitutional source of fair primary protection. may actually A state be a rules defendant’s vacuum; evidentiary design in a each rule is its rules does not by excluding guaranteeing play part a fair a in intended to unreliable trial — evidence, probative by balancing of certain the value effect, by barring against prejudicial extrane- kind of evidence matter, judge proper performance by guiding or ous signifies policy decision-making a state function. Each rule fairness, applicable respect policy to all cases that is with identity charge irrespective of the defendant.” and the Error, Saltzburg, of Harmless 50 Va.L.Rev. The Harm the rule is We denigrated. believe “beyond reasonable doubt” standard the most reaches reasonable balance judicial economy between the consideration of and which underlie constitutional important policies non-constitutional rules. proof standard of the proper articulated Having harmless, we now an error is must whether determining harmlessness,

address the proper definition theory any of harmless error must include both standard which degree to an be appellate must convinced that an error is harmless definition harmlessness. We adopt standard an error be cannot held harmless unless the appellate court determines the error could not have contributed verdict. Whenever there is a “ ” “ ‘reasonable that an error have con possibility’ ‘might ” conviction,’ tributed to the the error is not harmless. Com v. Davis, monwealth at A.2d quoting Chapman California, U.S. at S.Ct. at 828.

B. error principle an is harmless if it did not contribute the verdict only sets the for the stage harmless error As former inquiry. Chief Justice has ob- Traynor served:

“There are possible countless variations of error. There are also countless possible factors exponential that may determine effect, what if error in the any, course litigation may have upon judgment.” R. Traynor, The Riddle Harmless Error 16 It (1970). is therefore hardly the focus of this surprising Court’s into the inquiry of trial impact errors has varied depending upon the of the circumstances case. cases,

In numerous this Court has focused solely on the prejudicial impact evidence, admitted erroneously other, considering properly admitted evidence in rela- only 410 reveals that error the record an

tion to this When inquiry.16 defendant,17 or prejudice not did prejudice doubt, did that, a reasonable beyond so minimal In held the error harmless. we have jury,18 influence the Field, Assessing of Federal Con- generally the Harmlessness 16. See Rationale, 125 U.Pa.L.Rev. In Need stitutional Error —A Process 15, 16-19, (1976) “Field”]. n.68 cited as 36-37 [hereinafter usually Although focus on errors of harmless error discussions evidence, harmless permit to introduce which Commonwealth See, g., well. problems kinds of errors as e. error arise with other 342, (1976) Maloney, A.2d v. 469 Pa. 365 1237 Commonwealth closing argument); opinion) (improper prosecutorial (plurality Com- London, 566, (1975) (improper 337 v. 461 Pa. A.2d 549 monwealth prior impeachment own with inconsist- of Commonwealth’s witness statement). ent Moore, 231, (1975) (rely 17. v. 462 Pa. A.2d 447 Commonwealth 340 ing London, part prejudice); supra; on lack of Commonwealth v. Carr, 262, (1974); 328 Commonwealth v. 459 Pa. A.2d 512 Common Craft, 616, (1974); v. wealth v. 455 Pa. 317 A.2d 213 Commonwealth Knudsen, 137, Faison, (1973); v. 452 Pa. 305 A.2d 44 Commonwealth James, 412, (1971); Pa. 443 278 A.2d 881 Commonwealth v. 433 Pa. 508, 83, (1969); Snyder, 427 233 97 v. Pa. 253 A.2d Commonwealth A.2d 530 399, (1975); Rogers, Pa. A.2d 892 v. 463 344 Commonwealth 249, Mamon, (1972) (relying A.2d 471 Commonwealth v. 449 Pa. 297 error); part minimis nature Commonwealth v. on de denied, Camm, 253, (1971) (same), 405 cert. 443 Pa. 277 A.2d 325 1046, 1320, (1972); v. U.S. 589 Commonwealth 92 31 L.Ed.2d Collins, 159, Settles, (1971); v. 442 Pa. A.2d 61 Commonwealth 275 Padgett, 368, (1970); Pa. 440 v. 428 Pa. 269 A.2d 882 Commonwealth 284, 229, Lopinson, (1969); 427 209 v. Pa. 237 A.2d Commonwealth (1967) (semble). 552 A.2d assessing appellate court One factor to be considered an impact jury to the trial instructed the of an error whether brought disregard improperly to its atten- the information which was may impact Adequate cautionary tion. minimize instructions g., v. an Commonwealth error so as render it harmless. E. 543, Davenport, Maloney, supra (dictum); v. 462 Pa. Commonwealth Martinolich, (1975); 456 Pa. A.2d 67 Commonwealth cert, denied, A.2d L.Ed.2d 661 419 U.S. 95 S.Ct. Thomas, (1974); Pa. Collins, (plurality opinion). But see Commonwealth v. Russell, A.2d 492 Commonwealth v. 284, Potter, (1974); 285 A.2d 492 A.2d 127 v. 445 Pa. Commonwealth (1971).

411 we cases, other have reversed because the was prejudice more than de minimis.19 has

This Court also examined admitted properly evidence to determine whether admitted erroneously other, evidence was cumulative of untainted evid merely which, itself, minimal, ence.20 An error viewed is not by nonetheless if admitted evidence may properly be harmless similar to the admitted evid substantially erroneously ence.21 Heacock, 214, (1976);

19. Commonwealth 467 Pa. 355 A.2d 828 v. 196, Harkins, (1974); v. 459 328 156 Commonwealth Pa. A.2d Com Russell, Henderson, supra; monwealth v. Commonwealth v. 456 Pa. 234, Woods, 1, (1974); 317 A.2d 288 v. Commonwealth 455 Pa. 312 denied, (1974), 880, 145, A.2d 357 cert. 419 95 42 U.S. L.Ed.2d (1974); Canales, 422, v. Commonwealth 454 Pa. 311 A.2d 572 (1973); 9, Bynum, (1973); Commonwealth v. 454 Pa. 309 A.2d 545 Miller, 645, (1968). Commonwealth v. 429 Pa. 241 A.2d 346 20. Errors were found harmless on the in basis cumulative evidence 435, Rodgers, (1977) (plurali Commonwealth v. 472 Pa. 372 A.2d 771 ty opinion); 57, Knight, Commonwealth v. 469 Pa. 364 A.2d 902 (1976); 332, Cummings, Commonwealth v. 466 Pa. 353 A.2d 381 (1976); Fay, 158, (1975); Commonwealth v. 463 Pa. 344 A.2d 473 Moore, 231, (1975) Commonwealth (relying v. 462 Pa. 340 A.2d 447 part evidence); in Saunders, on cumulative v. Commonwealth 677, (1975); Ashburn, Pa. 625, 331 A.2d 193 Commonwealth v. 459 Pa. Turner, (1975); 309, 331 A.2d 167 Commonwealth v. 456 Pa. (1974) (opinion support affirmance); A.2d 113 in Commonwealth Greene, opinion) (plurality A.2d (alternative Brittain, holding); Commonwealth v. 455 Pa. (1974); Hancock, A.2d 219 Commonwealth v. 455 Pa. 317 A.2d (1974); Fell, (1973); 453 Pa. 309 A.2d 417 Mamon, supra part (relying Commonwealth v. on cumulative evidence); Budd, Commonwealth v. 443 Pa. 278 A.2d 879 Henderson, Commonwealth v. theory 21. “The [underlying approach] the cumulative evidence is that case, tainted nothing evidence government’s added and the Field, error is supra therefore harmless.” note at 37. recently, applied Until this Court the cumulative test evidence on case explicitly case outlining basis without the elements of the test. suggested Professor has requirements Field that three be must may met before a court improperly conclude that admitted merely presented cumulative of other evidence and therefore did not affect that verdict: “(1) similarity, There should be type substantial of evidence and incriminating details, factual between the tainted evidence and the 412

The not the error in Commonwealth does that argue evidence admitting family Officer life concerning Wallace’s impact and was because the professional reputation harmless was de minimis22 or the error of admitted improperly evidence was cumulative. Rather, the Common merely wealth in of this evi argues that error the admission any dence harmless in evidence light overwhelming appellant’s guilt. be may

This error Court has stated that an is so guilt harmless where the admitted evidence properly is so of the error effect overwhelming prejudicial reasona a it is clear insignificant by beyond comparison ble doubt not contributed error could have 178-79, Davis, 171, 305 Commonwealth v. verdict.23 452 Pa. (2) untainted untainted evidence of which it is ‘cumulative.’ indisputable, facts Eire in evidence should either be because way by affirmatively accepted or for other some the defendant (3) reasons. evidence Care should be tEiken the ‘untainted’ way no derives from the tainted evidence.” Parker, 381, A.2d 128 Id. at 55. See 327 Commonwealth v. 458 Pa. (error substantially (1974) not harmless where untainted evidence Turner, Pa. evidence); similar to 454 tainted v. Commonwealth (1973) (error evidence 311 A.2d 899 may harmless untainted not where evidence); generally, Common- have derived from tainted see Laws, opinion); (plurality v. 474 812 wealth Pa. 378 A.2d at Rodgers, supra, A.2d Commonwealth v. 472 Pa. at Nix, (concurring dissenting J.). opinion 6, supra. 22. See note erroneously likely admitted An error less if is to be harmless emphasized Compare v. Pad- evidence was trial. at Commonwealth (1969), gett, 428 Pa. Commonwealth 237 A.2d 209 with Pearson, Here, CommonweEdth argument: closing erroneously stressed the evidence in its admitted forget who was police “Let’s officer not Pat Wallace. He is the forget why here. A murdered. Let’s That we are not him. age young police prime officer in the life murdered his thirty-two, father, husband, friend, by respected a the commu- a nity, snapped family, in his loved his died with his revolver July 3rd, Hospital, left his holster last dead on Eurivalat Columbia return, morning on meeting wife that never to sudden death by this street man.” suggests, overwhelming As this test formulation of the though may prejudicial an error be so even that it is harmless not overwhelming guilt. there is See Common- evidence of defendant’s Dobson, (1975); wealth v. 348 A.2d Florida, Schneble accord, A.2d 405 U.S. 427, 430, 1056, 1059, 340 (1972). L.Ed.2d Under this determines whether approach, reviewing first evidence, the untainted considered independently evidence, tainted establishes the defendant’s overwhelmingly “ ‘honest, If guilt. very fair minded well have jurors might ” verdicts,’ brought an error cannot be guilty harmless Commonwealth v. on the basis of overwhelming evidence. Davis, 452 v. quoting Chapman 305 A.2d at California, 18, 26, 824, 829, 17 L.Ed.2d 705 U.S. S.Ct. (1967). Once guilt the court determines that the evidence of is overwhelming, it then so decides if the error was insignifi- cant by comparison could not have contributed to the verdict.

We have cautioned that

“a conclusion that admitted evidence is ‘so properly overwhelming’ and the prejudicial effect of the . error is ‘so insignificant’ by comparison, it is clear beyond a harmless, reasonable doubt error is is not to be arrived at lightly.” Davis, v.

Commonwealth 178-79, supra, 452 Pa. at 305 A.2d at 720. we have Accordingly, been to reluctant find an error harmless on the basis of overwhelming evidence.

Our cases support the proposition that in decid ing whether an error is harmless because there is properly admitted overwhelming evidence of guilt, the untainted evidence relied must upon be This uncontradicted.24 follows Barron, v. 438 Pa. 264 A.2d 710 Commonwealth v.

Pearson, 427 Pa. 24. The determination whether an is error harmless because of over- whelming closely case, evidence particular tied to the facts requiring Unfortunately, examination the entire record. this de- analysis. Field, termination is often supra, made with little or no See (“the overwhelming note 16 at 36 evidence test . . entails commitment may to examine in very complicated detail what be a only extensive record render a decision devoid precedential closely case”). value because so tied to the facts of the Thus, surprising isit not say that a few of our do cases whether overwhelming so, evidence was uncontradicted. Even our re- search clearly reveals no departed case in which this Court from the Court for the Rehnquist Mr. Justice test applied 1056, 1059, 31 Florida, 405 U.S. 427, 431, 92 v.

Schneble of a admission where the (1972), improper L.Ed.2d because the held harmless confession was co-defendant’s “over theory the prosecution’s supporting evidence evidence in other by any “not contradicted whelming” the case.” Henderson, v. 456 Pa. 317 A.2d

In Commonwealth Justice), (now Chief Court, Eagen Mr. Justice per this (1974), evidence overwhelming not harmless under held an error contradict- in the case which was evidence test because there harmless on the basis requirement cannot be found that an error overwhelming is uncontradicted. unless the evidence evidence overwhelming purport rely evidence on our which Two of cases prejudice from only that the part; also determine do these cases so minimis, merely challenged evidence was or that the was de the error Knight, 364 A.2d 469 Pa. v. cumulative. Commonwealth Collins, 368, 269 440 Pa. A.2d (1976) (cumulative); Commonwealth (de ). (1970) (semble) minimis Dancer, case, Similarly, a third (1973), analyzed evidence under the cumulative is better A.2d 364 Although overwhelming test. Court test than under the test, overwhelming apply evidence the evidence purported overwhelming the elements of the crime. as to all relied on was not Rather, prove on the same facts as the the evidence relied tended Moreover, previous in two cases this improperly evidence. admitted the same error as had determined in similar circumstances that Court v. in Dancer’s was de minimis. Commonwealth was made tried Stafford, 252, (1973) (dictum); Commonwealth 450 Pa. A.2d 412, Knudsen, 443 Pa. 278 A.2d 881 v. which reveeds three additional cases in this Court Our research overwhelming error harmless on evidence. found an the basis Thomas, 234, (1971); Com- v. 443 Pa. 279 A.2d 20 Commonwealth 597, Witherspoon, 442 Pa. 277 A.2d Com- v. monwealth cases, 356, Diaz, (1970). In these 264 A.2d 592 v. 438 Pa. monwealth it on was found the evidence relied unclear whether the Court analy- Thomas, supra, no offers uncontradicted. Commonwealth v. on, applied the relied or how the Court of what evidence the Court sis Witherspoon, overwhelming In v. test. Commonwealth evidence Diaz, supra, supra, v. the Court summarized and Commonwealth upon, not state if had determined that relied but did might To the that these cases uncontradicted. extent evidence was suggest may find harmless error on basis that this Court determining if overwhelming first the evidence is evidence without they proper inconsistent with the standard for uncontradicted finding are Hale, 293, 356 v. 467 Pa. harmless error. See Commonwealth case, In defendant. guilt ed we distinguished Camm, Commonwealth 325, 443 Pa. 277 A.2d cert. denied, 405 U.S. L.Ed.2d 589 an error harmless), because in (holding Camm “there was no evidence that could have supported acquittal.” 443 Pa. at 268-69, 277 A.2d at quoted 242, 317 at 456 Pa. A.2d at Henderson, however, In “There was . . . evi- dence to an and thus support acquittal,” the untainted evidence could not be considered overwhelming.

In Lasch, Commonwealth v. 464 Pa. 346 A.2d 547 (1975), the Commonwealth argued admis- improper sion of pre-trial Lasch’s statement was harmless police error, on relying testimony an and a eyewitness second individual to whom Lasch an made incrimi- allegedly admission. nating Lasch did not at trial testify and offered no evidence disputing Commonwealth witnesses. This Court nevertheless held that the error was not harmless, reasoning that the defendant’s cross-examina- tion cast doubt upon credibility the two witnesses. Accord, Davis, Commonwealth v. supra.

In Tucker, Commonwealth v. (1973), the Commonwealth improperly cross-examined its own witness. The Commonwealth argued that there was overwhelming evidence of guilt, Tucker’s based upon his in-custody statement himself in implicating the crime. We that, held because the of this accuracy statement was disput- ed, the evidence of was not guilt overwhelming.

The requirement that the “overwhelming” evidence relied upon be uncontradicted follows from the an principle that “ error cannot ‘honest, be harmless if fair minded jurors ” might well have very brought not guilty verdicts.’ Davis, 452 Pa. at supra, 305 A.2d at Chapman California, v. 386 quoting supra, U.S. at at 829. A has the to jury duty weigh evidence and resolve therein. E. g., conflicts Commonwealth Murray, (1975). 460 Pa. 334 A.2d 255 Unless the evidence is Lasch, (1974); Commonwealth v. A.2d 756 Pa. A.2d Tucker, (1975); Commonwealth v. (1973). 452 Pa. choose to credit may well juror minded a fair uncontradicted evidence. the Commonwealth’s than defendant’s, rather with The is in accord function proper principle ill to An court is equipped of an court. appellate appellate fact. findings in the or make conflicts evidence resolve Rose, 344 A.2d generally See Oates, 295 A.2d Commonwealth v. has written: former Chief Justice Traynor As is to the mute record made “The limited appellate factors affect the value may probative below. Many intelligence, experience, such as . . . testimony, age A demeanor, or of the witness. occupation, temperament trial court before whom witnesses is jury appear or in a An least to take note of such factors. position know doing court has no so. It cannot appellate way questions a answered some forthrightly whether witness It an evaded find answer may convincing but others. in form have sounded unrelia- may truthful written in it was A sentence given. ble at the time wellphrased have rehearsed at trial. A clumsy the record seemed may truth ring in record may convey sentence his to its it when the witness groped way that attended clues there cold to indicate print articulation. What are lies? clues are there indicate the truth What where lies?” the half-truth where Riddle Harmless 20-21 (1970). Error Traynor, R. in the evidence of conflicts in order to ascertain Resolution evidence of is guilt if the would involve overwhelming of the factfinder’s function. usurpation recognize that a We verdict guilty indicates conflicts the evidence were resolved in favor of the Common- However, the wealth. have on the jury may relied tainted evidence, while unsure of the of the untainted evi- verity dence. the corroboration the tainted Similarly, provided by have may led the the untainted jury accept evidence. overwhelming Unless the evidence claimed to be conclude, uncontradicted we a reasonable cannot beyond doubt, the conflicts in the would have resolved same manner absent the admitted evidence. improperly Thus, that, we hold in the applying overwhelming evidence test to determine if an error is a harmless, court may rely on only uncontradicted evidence. The uncontradicted evi- dence of must be guilt so and the overwhelming, prejudicial effect of the admitted evidence so improperly insignificant that by comparison, clear a reasonable doubt beyond that the error could not have contributed to the verdict.

C. Our review of the convinces us that record established, Commonwealth has a reasonable not beyond doubt, that the error in admission of concerning Officer Wallace’s life and was family professional reputation harmless. The in overwhelming evidence claimed to be was fact disputed. (1) Commonwealth’s case consisted of: primarily Scanlon, of the victim’s

testimony partner, Officer identify- killer; ing appellant as the made (2) statement allegedly arrest, by appellant after his in which shortly appellant admitted in the crime but participation firing denied shot;25 fatal testimony appellant’s and uncle hour placing about an and a half appellant Pittsburgh before the took the stand in his own killing.26 Appellant statement, alleged appellant 25. In the that admitted he Robert car, parked appellant Davis both fired at the officers from behind a firing weapon firing According an automatic and Davis a revolver. statement, police Davis fired the fatal shot. The found four spent weapon scene, shells from an automatic at the but Common- testify experts wealth that bullet which struck Officer Wallace weapon. testified, was fired from an automatic Officer Scanlon hand, only on person during shooting other that he saw appellant. was appellant Other evidence gray included that owned a Cadillac, gray shortly that a Cadillac was seen in the area after the shooting, appellant and that seen with two Florida others crime, Davis, Lafayette connected with the Jones and Robert fewa days Appellant Cadillac, gray later. admitted that he owned a he had been in Appellant Florida with Jones and Davis. ex- plained they together meeting travelled to Florida after in North appellant Carolina. gray While the evidence that owned Cadillac Charlotte, North Carolina he was in and testified behalf witnesses corrob- defense Several killing. day on this alibi. orated chal- defense, appellant the alibi to presenting

In addition cross- On testimony. identification Officer Scanlon’s lenged evidence, appel- conflicting examination, introducing and by to and credibility ability Officer Scanlon’s lant attacked statement to the making also denied flatly Appellant see.27 in the participation admitted allegedly in which he the police evidence to impeach introduced appellant crime. Finally, indisputable, it is Jones and Davis in Florida with that he was and certainly overwhelming guilt. evidence of not day examination, on the Scanlon testified that Officer direct On Jones, subject Lafayette the killing Wallace saw he and Officer the warrant, patrol Scan- outstanding car. Officers from their arrest an way, the Officer Jones’ home. On went towards lon and Wallace recog- gray he He testified that noticed a Cadillac. Scanlon twice appellant’s place name at appellant not the driver but could nized as home, him but did not see reached Jones’ the time. The officers Jones, they they spotted They when until there. continued drive again Scanlon saw stopped placed arrest. Officer and Jones under later, Thirty Jones broke gray seconds the street. the Cadillacdown he Scanlon testified that away ran after him. Officer and the officers closer,” any yell, after which four shots come a voice “Don’t heard had he saw the man who testified that fired. Scanlon were Officer direction from driving gray Wallace’s Cadillacfire Officer been pulled and fired parked his revolver Scanlon behind a car. Officer times. three cross-examination, day brought out that on the defense On appel- killing, man he identified Officer Scanlon observed the as period, For half of that Officer lant for a total of twelve seconds. he could Scanlon himself was under fire. Officer Scanlon admitted from, not tell what direction the voice came and did see parked gunman time, until shots were fired. At that behind the car eighty-five gunman was about feet from Officer Scanlon. though recognized appellant, that he even Officer Scanlon testified time, place appellant’s because he had he could not name at the before, loitering robbery. appellant arrested twice for and for Police indicated, however, appellant records had never been arrested appel- loitering participated Scanlon had not and Officer robbery lant’s arrest. testimony appellant Officer Scanlon’s had his hair braided on day testimony appellant’s of the crime conflicted with the Finally, impeached prior inconsistent uncle. Officer Scanlon statements. statement,28 the officer who claimed he heard this oral evidence to rebut certain details of the statement.29

Thus, we cannot conclude that the evidence of was so guilt the error overwhelming, admitting prejudicial so that the error was insignificant by comparison, harmless beyond reasonable doubt.

Judgment of sentence reversed and a new trial granted. POMEROY, J., filed concurring opinion.

NIX, J., concurs in the result.

POMEROY, Justice, concurring.

I with erred in agree that the trial court majority allowing admission into evidence of the testimony victim’s wife and the of the victim with his photographs also, crippled daughter. think, It was I allow improper the Commonwealth to evidence of the victim’s present good reputation when there had been neither community an attack the defendant nor a by reputation on victim’s defense asserted based on the victim’s nature. quarrelsome Irwin, 616, Commonwealth v. 475 Pa. Compare (1977). And, I too am unable to conclude that these errors were harmless. Thus I is entitled to agree appellant new trial and concur in the order of the court. allegedly driving

28. The statement was taken while the officer was appellant Safety Building to the Public after his arrest. The officer testified he took notes of the statement after it was made. sometime After Safety Building, appellant he arrived at the Public refused to any tape presence lawyer. make statement on of a without According officer, stopped way to the he on the to the Public Safety Building investigate testimony sup- an accident. His ported by officers, although two other their was inconsist- ent with his in certain details. The two drivers involved in the stopped accident for which the officer claimed he testified for the defense and denied that the officer was at the scene. that, attorney appellant The officer testified while an was at the Safety arrest, Building attorney Public on the afternoon of the appellant, officer, presence told you in the of the “The sooner have taped, attorney the statement the better it will be.” The testified at trial, making and denied this statement. placed appellant shortly 29. The statement with a James Davis before killing. James Davis denied this at trial. 420 to do with from the has majority opinion

My divergence and which expresses, harmless error which concept harmful to our system think is itself seriously I venture to I remain of the view1 that trial criminal jurisprudence. right which do not violate a constitutional errors test2 “Chapman” are not subject stringent accused in his for the opinion embraced Mr. Justice ROBERTS Hence this majority. opinion.

I. that appellate It has been a recognized principle long in the will convictions error despite courts affirm criminal trial court so as the error did hot affect the long appellant’s Evidence Wigmore, to a fair trial. right generally See but improper (3rd 1940). recognition Ed. This § accepted generally “harmless” trial court lies in the rulings but not a fair trial view that defendant is entitled to “[A] 135, States, 391 U.S. one.” Bruton v. United perfect Lutwak 1620, 1627, (1968),quoting S.Ct. L.Ed.2d 481, 97 L.Ed. 604, 619, 73 S.Ct. States, v. United 344 U.S. should seek to 593, 604 an (1953). appellate Thus for small errors or convictions avoid the aside “setting likelihood of little, having changed have if any, defects that California, trial.” Chapman the result of the U.S. 824, 827, 17 L.Ed.2d effect of which the trial errors prejudicial might standard by however, has been the subject be of considerable gauged, in recent years.3 debate See, n.7, g., Light, e. Commonwealth v. 326 A.2d 288, 294, Moore, (plurality opinion); n.7 302, 310, n.1, 569, 572, (1973) (dissenting 309 A.2d n.1 opinion Pomeroy, J.). of “

2. . . a federal constitutional error can be held harm [B]efore less, the court must be able to a it was harmless declare belief beyond California, 18, 24, Chapman a reasonable doubt.” 386 v. U.S. 824, 828, 705, (1967). 87 S.Ct. 17 L.Ed.2d 711 Saltzburg, Error, 3. See The Harm of Harmless 59 Va.L.Rev. 988 (1973); Osborn, Harmless, Cameron and Isn’t When Harmless Error Order, Law (1971); Traynor, & Soc. 23 R. The Riddle of Harmless

421 At an earlier stage legal our it was history generally held that even the most technical trivial trial errors give would rise to a trial.4 Errors of new constitutional would magnitude normally automatic reversal.5 require California, v. Then, in the now famous case of Chapman supra, of the Supreme Court United ruled that States errors of a constitutional dimension did automat- require ic reversal so as there was no long “reasonable possibility the evidence complained might have contributed to the conviction.” 24, 386 87 828, U.S. at at 17 at S.Ct. L.Ed.2d 710, v. quoting Fahy Connecticut, 85, 229, 375 84 U.S. S.Ct. 11 L.Ed.2d (1963). 171 The opinion in Chapman, however, expressly reserved to the individual states the standard by which errors of a non-constitutional nature be might judged.6 test which Pennsylvania courts should apply such situation here in issue. I cannot with Mr. agree Justice ROBERTS that a “harmless beyond reasonable doubt” standard should be as the adopted proper gauge harmlessness.

II. In support of Chapman test for state adoption evidentiary Mr. Justice purposes, ROBERTS concludes that such a test stringent is necessary because it will maintain (1970); Gibbs, Prejudicial

Error Error: Admissions and Exclusions of Courts, (1957). Evidence in the Federal 3 Vill.L.Rev. See, g., Traynor, 4. e. (1970); R. The Riddle of Harmless Error Kav- anagh, Improvement of Administration of Criminal Justice Exer- Power, cise of Judicial (1925); Wigmore, 11 A.B.A.J. 217 Criminal Reversals, Procedure —“Good” Reversals and “Bad” Ill.L.Rev. 352 (1909). See, g., 643, Georgia, e. v. 17 L.Ed.2d Whitus U.S. (1967); Haynes Washington, U.S. 83 S.Ct. Rogers Richmond, L.Ed.2d 513 365 U.S. 81 S.Ct. 5 L.Ed.2d 760 application is, course, 6. “The of a state harmless-error rule a state question only procedure where it involves errors of state or state law.” U.S. 87 S.Ct. at 17 L.Ed.2d at 708-709. of the trials;7 standard of in integrity proof (2) criminal the difficult distinction between constitutional and non-con stitutional errors will no to longer have be made in deciding harmless; whether an error is or is not in (3) the dichotomy of of treatment errors constitutional and non-constitu tional is be magnitude meaningless and should abrogated; and a danger that to a fair defendant’s trial right be might denigrated can thereby be avoided. Such consider ations are importance of in considering what standard be; not, review trial court errors should do they however, in view my support the Mr. Justice position of As ROBERTS. Mr. Justice Rutledge noted in Kotteakos States, United 750, 760, 1239, 1245, 90 U.S. 66 S.Ct. L.Ed. 1557, 1564 (1945), the general object the harmless error doctrine is “ . . .to preserve review as a check upon arbitrary

action and trials, essential unfairness in at but the same time to make the process perform that function without giving men convicted fairly of loopholes multiplicity which any highly rigid detailed scheme of minutely errors, in especially relation to will procedure, engender in reflect a printed record.” I believe that adoption a Chapman standard for review of trial court nature, errors of a non-constitutional rather than striking interests, a balance among these will result in inevitably the needless reversal of convictions which has guilt been conclusively established.

First, I do not believe that a standard of review of trial errors is less than the stringent Chapman test endangers the Winship requirement prosecution all prove elements of the beyond offense a reasonable doubt. rule Winship applies iota evidence every introduced a trial, but rather sum of bearing crime; on an element is, that when looking whole, the record as a can be said that the Commonwealth has proved every fact necessary to constitute the crime with is, course, proof beyond 7. That standard In reasonable doubt. Winship, Re 397 U.S. L.Ed.2d 368 which doubt? the defendant is reasonable charged beyond Winship It to be met for the standard entirely possible error occurred. despite the fact some minor has Second, ROBERTS, Mr. Justice I have confidence in unlike the to when of our courts ability appellate distinguish, errors of and non-constitu necessary, between constitutional McDowell, v. tional dimension. Commonwealth e. g., See Ransom, v. Commonwealth 460 Pa. A.2d 872 (1975); Mills, v. Commonwealth 446 Pa. (1972); 288 A.2d 762 v. Black 286 A.2d 638 man, I (1971). Third, while share Mr. Justice of of differing ROBERTS’ dislike standards review for errors of constitutional and non-constitutional proportions, I no see virtue in the differences eradicating further a extending rule which has been criticized as unduly rigid.8 And while I that a finally, defendant’s to agree right Traynor, Error, (hereafter (1970), See R. The Riddle of Harmless “Traynor”) where the former Justice of stated: Chief California Chapman “The A test itself close to automatic reversal. comes Chapman court to faithful violation of a test could hold that the right judgment, constitutional did not contribute to the hence harmless, only beyond if it a belief to effect could declare doubt, degree a approaching certainty. reasonable a belief This English equivalent currently required by belief is to that courts under Stirland Director of Prosecutions. Public test, conscientiously Chapman they “If apply courts will usually compelled declaring find themselves to a belief that balk at jury. there is The ing possibility no reasonable that an error influenced lip give tacitly alternative to service discount- the test while very severity discounting it. The of the test invites such to preclude well-nigh Appellate would automatic reversal. review gain forthrightness appellate as well reason if courts could as judge highly probable, certain, it almost that an error rather than judgment. did not court affect such a a conscientious Under test compelled highly would not be to reverse when it believed improbable judgment. an error contributed to the probable one, highly although “The rigorous test also be a would short of Chapman the excessive of the test. It should strictness prove rigorous enough impel significant to reversal constitu- unsympathetic updat- tional appellate errors even in an court with safeguards. ed constitutional The more rational test of harm- error, less the more likelihood there would be of its conscientious application. “Concededly, application highly probable test turns on appellate also, judge’s degree. Concededly an reflection the nth to judges perceptive some will be more than others. Nonetheless a I less insured, fair must be standard disagree trial such a Chapman necessarily denigrate right.

strict will than avoid the waste We have a commensurate to duty certainly overly in an zealous time, and resources entailed money reversal trials which are fair.9 basically

III. I believe strikes It the standard which remains discuss many balance considerations among proper then such standard apply harmless error controversy, at bar. case in fact prejudiced In a trial error has determining whether has three generally a defendant’s an rights, appellate Virgin from which to choose. See Government options Toto, 1976); Traynor, supra Islands (3rd Cir. F.2d is First, 34. court affirm if convinced that it might at a more than not that not probable error did affect however, and, too test, a is no doubt lax jury’s verdict. Such test, compel judge a realistic the formulated in terms to evaluate judgment, strengthen error is bound to risk that an affected the judicial professional discipline the The discretion. usual attends engender highly probable likely to a rea- test is much more Chapman test, judicial judgment than under which soned is the Tray- possibility.” thinking ceases at the first base of reasonable nor, omitted, (footnotes emphasis original). pp. 43-45 Indeed, speculation Supreme open is to as to even it whether Chap- rigidity of the Court of the United States has adhered to the man 223, See, States, g., U.S. 93 S.Ct. test. e. Brown v. United Florida, U.S. 36 L.Ed.2d 208 Schneble v. California, (1972) Harrington 31 L.Ed.2d Court, U.S. where that 89 S.Ct. 23 L.Ed.2d 284 Chapman, on the purporting while to affirmed convictions follow “overwhelming” despite Chapman’s emphasis on basis of any to the verdict. whether the error made contribution whatsoever Implicit opinion in the is the view that of Mr. Justice ROBERTS Chapman constitutionally protect against required standard is to prejudice Supreme trial court of the United of errors. Court indicated, however, Chapman States that the standard fashioned “appropriate congressional in the 87 of 386 U.S. at absence action.” Thus, all clear S.Ct. at L.Ed.2d at 709 it is at constitutionally required that such a standard is even errors magnitude. Accordingly, unconvinced that constitutional I remain capable guaran- only permissible such a standard is the standard teeing right a defendant’s to a fair trial. noted, as Chief Justice Traynor has allows an appellate an judge into as to the stray inquiry correctness result reached below rather than on the focusing effect the error might have had on the jury. Traynor, supra See p. 35. Second, a might affirm where it is convinced that it is highly that the probable error did not contribute verdict. See Virgin Government of Islands Toto, supra; U. S. v. Savage, 430 F.Supp. (M.D.Pa.1977). Lastly, court might affirm where it is almost certain that the error in no way This, course, affected verdict. is the standard adopted Chapman.

In choosing alternatives, these among I am guided largely Chief Justice reasoning Traynor. him, With I am convinced that the middle course—a standard of high proba- bility the best balance between the state’s interest —strikes in efficient and operation realistic of the judicial system the defendant’s right to fair trial. In Chief Justice Tray- nor’s words:

“What about the court, when it is appellate called upon to determine whether or not an error affected the judg- ment? How much of a true believer should it be? What degree of probability should it that the require judgment is contaminated? Should it affirm if it believes more probable than not that the error did not affect the judgment? Highly probable that it did not? Almost certain that it did not?

[*] ^{[*] [*] [*] [*] [*]} “The test nebulous of reasonableness is unlikely to foster either in uniformity the of application standards, should there be or in the any, pragmatic exercise of discretion. Discretion is at least under better control within tests that focus on the of degree as probability more not, probable than probable, or highly almost cer- I tain. should welcome a test of high for probability harmlessness. Given an error that affected a substantial right, the below is judgment Unless suspect. the appel- late court believes it probable highly that the error did not affect the it judgment, should reverse. too a risk less entails stringent great test

“Any an error. by that was influenced affirming judgment a deter Moreover, stringent may less test fail an from his on the correct- focusing inquiry appellate judge and then an error harmless holding ness of the result with his own predilections. whenever he result equated to the two that are more objections “There are also tests that of If the test were stringent than high probability. error, reverse, presence appellate the mere courts could error, century, as did in nineteenth for no many any was public matter how trivial. The result disaffection end Almost as is a judicial with the test process. stringent unless the that would reversal almost require certain that the error did not affect This judgment. Barrett, in still test, Baron Parke Crease v. adopted by It test is also the England. prescribed by in prevails when error is of constitu- Supreme United States Court 34—35 omit- (footnotes tional Traynor, pp. dimension.”10 ted).

I think the time has come for us articulate standard will in the which non-constitutional error be judged standard, view, in process. my Pennsylvania appellate in be an error will result the reversal of a should that such conviction where the court cannot with a reviewing say, the error not influenced that has high degree probability, otherwise, the judgment of the determination jury; be should affirmed.

IV. is with the above When this case reviewed mind,11 I conclude is highly standard cannot Traynor, regard cites In this I note that Mr. Justice ROBERTS 10. supra by application proposition justice will be served both non-constitutional a uniform standard for constitutional however, clear, Traynor support It Justice does errors. is rule, Chapman supports but further rather extension “high probability” adoption standard. uniform view, my whether error was or was not In the determination of against background made of the entire eviden- harmless to be probable the errors which into this case did crept not contribute to the verdict of guilty against Stanton It Story. is true that the prosecution quite adduced from proof apart that here challenged which, not while overwhelming, to ample hand, establish the Story’s guilt. On other Commonwealth’s case was tainted from the outset by totally irrelevant material in the form of the of the widow of Wallace, Patrick the victim, the of the photograph victim on the beach with child, his young the fact tiary record, merely the “uncontradicted” evidence. The latter approach, espoused by ROBERTS, think, Mr. Justice is I unnecessari- ly rigid and restrictive. must, reviewing course, A court evidence where its discount reliability contrary evidence; by inquiry has been undermined likely determination, jury’s must be the effect of on the the error regardless might of whether otherwise be to the evidence sufficient Bruno, See, g., guilty. sustain a verdict e. Commonwealth Rankin, A.2d 40 appellate I have no doubt that in this Commonwealth courts possess ability to scrutinize the as a to arrive at an record whole intelligent judgment highly probable to is as whether or not it particular jury’s approach errors The narrow influenced the verdict. ROBERTS,moreover, my application, brother would be difficult of say example, for who is to might what For constitutes “contradiction”? overwhelming simply by an otherwise case be an contradicted unsupported problem pointed up is defense assertion of alibi? This by Florida, Supreme supra, the division Court in Schneble v. majority overwhelming where the of the Court found “uncontradict- harmless, ed” evidence so as to render the asserted error whereas a strong by dissent three members of the Court would have reversed ground the conviction on depended upon prosecution’s that the in chief case by allegedly given appellant a statement which ground the dissenters discredited on the it was contradicted appellant’s police claims of coercion. I share Mr. Justice While ROBERTS’ appellate concerns that an respect the discretion of the or factfinder to believe disbelieve evidence, solely upon the offered a determination based a mechanical simply determination of what evidence is “uncontradicted” avoids admittedly task,

what appellate a difficult task but a never- theless, which I finding believe is critical to a proper of “harmless- “Concededly, Traynor As ness”. Justice he Chief noted: once [an appellate error, judge] he is undertakes evaluate driven to review- record, ing weighing the whole even to I evidence. Nevertheless deliberately process possible put believe that in the it is for him judgment. question aside the correctness Given will, reasoning working keep he finds intuition and as one to his

child was crippled, Wallace, the fact a police officer, These factors enjoyed reputation. were splendid calculated to excite the of the and formed a sympathy jury, picture jurors mental in the minds of the they before heard the of facts of the case.12 I any operative think quite fact possible images these did in have purpose intended; made they impossible approach unemotional with jurors which should undertake difficult and impor- tant of reaching objective task and reasoned verdicts. By on this kind of of the slain insisting creating “profile” man, court, with the of the prosecution, permission engaged in the kind of “overkill” which unhappily causes verdicts to be set in the of aside interest not a assuring, perfect trial, but a trial Which meets the standards of fairness. ordinary It is for this reason that I concur in the judgment of Court. Pennsylvania of

COMMONWEALTH McKENNA, (two cases). Appellant Gerard Paul Court Supreme Pennsylvania. of Argued April 1977. Decided Jan. 1978. Reargument Denied March inquiry degree probability in focus on that error influenced the Traynor, supra (footnote omitted). result.” at 36 feelings outrage are 12. We unmindful attend which cruel and senseless murders of innocent citizens or concern society perpetrators apprehended the victims and of that the be is, however, punished. precisely It emotions can these which endan- ger right presumed an individual’s to be innocent. Courts have a duty insulate a from such influences so as to as assure far as possible dispassionate that a the result verdict consideration question defendant perpetrate did whether indeed the acts charged. of which he stands

Case Details

Case Name: Commonwealth v. Story

Court Name: Supreme Court of Pennsylvania

Date Published: Jan 26, 1978

Citation: 383 A.2d 155

Docket Number: 135

Court Abbreviation: Pa.