Commonwealth v. Mitchell

Justice SAYLOR

dissenting.

The majority correctly frames the standard governing harmless error review as recently articulated in Commonwealth v. Young, 561 Pa. 34, 748 A.2d 166 (1999) (on reargument): “[T]he properly admitted and uncontradicted evidence of guilt [must be] so overwhelming and the error ... so insignificant by comparison that the error could not have contributed to the verdict.’ ” Id. at 87, 748 A.2d at 194 (citation omitted). None the less, in its application the majori*285ty is apparently unable to characterize the uncontradicted evidence of Appellant’s guilt in the present case as overwhelming. See Majority Opinion at 576 Pa. 280, 839 A.2d at 215 (“Taking [the uncontradicted] evidence and comparing it in weight to the impact of the error ..., the court concludes that the error created by this improper query was harmless.”).1 This appears, at least to me, to be a dilution of the harmless error standard which the Court took pains to apply correctly in Young.

Here, as in Young, the defendant testified and, in doing so, contradicted material and substantial elements of the Commonwealth’s case. Although I view the defense evidence as implausible, as several dissenting Justices also did in Young, the Young Court explained that courts are nevertheless obliged to faithfully implement the long standing, constitutionally based standard for harmless error, as follows:

The dissenting opinion suggests that the evidence presented by Appellant was simply incredible, and thus should not be considered by this court to have in any fashion refuted the Commonwealth’s case. Such credibility determinations, however, are for the factfinder to make, and are not within the province of an appellate court.

Young, 561 Pa. at 87 n. 16, 748 A.2d at 194 n. 16; see also id. at 86, 748 A.2d at 194 (“Where such factfinding functions are implicated, appellate courts are incompetent to choose which side’s evidence is more persuasive.”). Additionally, in its single-sentence comparative assessment concerning the impact of the prosecutor’s reference to Appellant’s silence, the majori*286ty fails to address this Court’s past recognition of the substantial potential for prejudice associated with silence in the face of confrontation with alleged criminal conduct. See, e.g., Commonwealth v. Turner, 499 Pa. 579, 583, 454 A.2d 537, 539-40 (1982) (“We would be naive if we failed to recognize that most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt.” (quoting Walker v. United States, 404 F.2d 900, 903 (5th Cir.1968))); see also Commonwealth v. Clark, 533 Pa. 579, 587, 626 A.2d 154, 158 (1993) (characterizing references to an accused post-arrest silence as “innately prejudicial”). See generally Jeffrey O. Cooper, Searching for Harmlessness: Method and Madness in the Supreme Court’s Harmless Constitutional Error Doctrine, 50 U. Kan. L.Rev. 309, 340, 344 (2002) (discussing the rigorous analysis essential to harmless error review and questioning conclusory decision making that is “essentially opaque because it tends to [affirm on the basis of harmless error] in the most summary fashion, with little or no analysis”); Harry T. Edwards, To Err Is Human, But Not Always Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U.L. Rev. 1167 (1995) (discussing, at length, the difficulties facing appellate judges in adhering to an effect-on-the-verdict framework for harmless error review in cases in which the defendant’s guilt seems well established, and the substantial consequences of failing to do so, particularly in terms of the erosion of constitutional rights).

Since I am unable to meaningfully distinguish Young in terms of harmless error review, or concur in the majority’s weighing assessment, I am compelled to dissent.

. Indeed, I am unaware of any previous decision in which this Court has described the quantum of circumstantial evidence identified by the majority as proof of Appellant’s guilt (Appellant’s having traveled to the crime scene — an outside location adjacent to a public street intersection — to meet one victim and his subsequent flight) as overwhelming. (While the majority also notes that the same gun fired the bullets that struck each victim, it does not explain, in terms of uncontradicted evidence, how this fact connects the gun to Appellant). Notably, in Young, involving a similar situation in which the defendant also evaded police and testified in contradiction to the Commonwealth's central proofs, see Young, 561 Pa. at 87, 748 A.2d at 194, the Court determined that the uncontradicted evidence of guilt was, in fact, not overwhelming.