Commonwealth v. Scoleri

Concurring Opinion by

Mr. Justice Roberts:

I must file a concurring opinion for two reasons. First, I believe the majority applies the incorrect standard. They state that while this Court “has entertained questions raised for the first time upon an appeal, such cases have always involved errors of such substance and prejudice as to result in an unfair trial and a deprivation of justice.” It is my view that this rule is no more than new words to express the “basic and fundamental” error test used by the dissent in Commonwealth v. Simon, 432 Pa. 386, 248 A. 2d 289 (1968) and the majority in Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968). Therefore, my objections as stated in those two cases apply with equal vigor here. The correct test for whether this court will consider an issue on appeal which was not raised below must hinge upon the ability of the trial court to have corrected the error if it had been brought to that court’s attention. See Commonwealth v. Simon, 432 Pa. 386, 248 A. 2d 289 (1968).

Second, and perhaps more importantly, I am certain the majority employs its own standard incorrectly. The opinion explicitly states that they will consider questions not raised below if they are of “such substance and prejudice as to result in an unfair trial and a deprivation of justice.” The majority then decides that Scoleri’s denial of his right to the assistance of counsel during trial, a right guaranteed by the sixth amendment of the Constitution and of paramount importance was not of such substance. See my discussion of the importance of this right in Commonwealth v. Simon, 432 Pa. at 386, 248 A. 2d at 289. This *583would appear to preclude any issue, even if of Constitutional dimensions, from being considered by our court unless raised below. But the same majority in Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968) holds that a mere error in the charge (for which no objection was made) can rise to “basic and fundamental error which affects the merit of the ease ... or offends against the fundamentals of a fair and impartial trial.” Examining these two cases provides a shocking contrast—denial of a constitutional right is not fundamental (Scoleri) but an error in a charge is (Williams). This demonstrates two things: (1) the “basic and fundamental” test (or its equivalent “errors of such substance or prejudice”) is very difficult to apply; (2) the test is so vague that it may result in denying the administration of even-handed justice since the determination of what constitutes errors sufficiently “fundamental” to merit consideration by our Court may be colored by the severity not of the error but of the crime itself.

The majority, in order to be consistent in the application of its rule, should reach the same result in Scoleri and Williams. Equal justice requires that the majority either deny Scoleri and Williams new trials (results which I believe would be correct) or grant both Scoleri and Williams the relief requested. In my view, the error of granting Williams a new trial is made more grievous and obvious by denying Scoleri relief.

Because I believe the failure of Scoleri’s counsel to object to the judge’s instructions was fatal to appellant’s claim, see Commonwealth v. Simon, supra, I concur in the result reached by the majority.