[J-64-2013][M.O. – Stevens, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 23 EAP 2013
:
Appellee : Appeal from the Judgment of Superior
: Court entered on 9/11/12 at No. 1336
v. : EDA 2010, affirming the judgment of
: sentence entered on 4/16/10 in the
HAROLD WINSTON NOEL, JR., : Court of Common Pleas of Philadelphia
: County, Criminal Division, at Nos. CP-
Appellant : 51-CR-0011510-2008; CP-51-CR-
: 0011511-2008 and MC-51-CR-
: 0033142-2008
:
: ARGUED: September 11, 2013
DISSENTING OPINION
MR. JUSTICE SAYLOR DECIDED: November 21, 2014
I agree with Mr. Justice Baer’s conclusion that the trial court violated Rule of
Criminal Procedure 631. See Concurring Opinion, slip op. at 6. That being the case,
and as Appellant preserved this meritorious claim of trial court error, the appropriate
inquiry implicates a harmless error analysis, for which the Commonwealth is obligated
to prove, beyond a reasonable doubt, that the error did not contribute to the verdict.
See Commonwealth v. Howard, 538 Pa. 86, 100, 645 A.2d 1300, 1307 (1994); see also
Commonwealth v. Strong, 575 Pa. 433, 437, 836 A.2d 884, 887 (2003) (applying a
harmless error analysis to a violation of a rule of criminal procedure and collecting
cases); Commonwealth v. Morris, 522 Pa. 533, 541, 564 A.2d 1226, 1230 (1989)
(holding that a violation of the hearsay rule was harmless).1
Accordingly, I do not agree with the proposition of the majority and responsive
opinions that Appellant is not entitled to relief because he has failed to establish
prejudice. See Majority Opinion, slip op. at 24 (“Because Appellant has not
demonstrated that the process deprived him of a fair and impartial jury, neither do we
conclude that Appellant suffered actual prejudice.”); Concurring Opinion, slip op. at 7 (“I
ultimately find myself in a concurring posture in this appeal because Appellant has failed
to preserve for appellate review the discrete issue of whether he suffered any actual
prejudice . . ..”). Consequently, and as the Commonwealth has not attempted to satisfy
its harmless error burden or offer grounds for shifting the evidentiary burden to
Appellant, I respectfully dissent.
1
The Court has not consistently applied harmless error constructs when faced with a
violation of a criminal rule. See, e.g., Commonwealth v. Brown, 556 Pa. 131, 136, 727
A.2d 541, 544 (1999) (upon finding a violation of the criminal rule governing the
amendment of a criminal information, proceeding to examine whether the defendant
was prejudiced by that violation). Absent persuasive policy justifications for undertaking
an ad hoc approach based upon the character of the rule violated, which the
Commonwealth has not advanced in this case, I see no grounds for deviating from the
general rule imposing the burden upon the Commonwealth to prove that preserved
meritorious trial court errors are harmless.
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