Commonwealth v. Lowery

Concurring Opinion by

Mr. Justice Roberts.

I can only concur in the majority’s result, for I believe this case is yet another instance where the majority demonstrates its inability to apply its basic and fundamental error “test” consistently.

Seemingly a comment by the prosecution on the defendant not taking the stand, even if it occurs at the outset of the trial, is an error in violation of the Fifth Amendment, and thus should be basic and fundamental. See Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229 (1965). However, previous applications of the doctrine by the majority have been uneven. Compare Commonwealth v. Myers, 439 Pa. 381, 266 A. 2d 756 (1970) (holding damaging error in charge could not be raised on appeal, since it was not objected to at trial) and Commonwealth v. Scoleri, 432 Pa. 571, 248 A. 2d 295 (1968) (holding that deprivation of right to assistance of counsel not basic and fundamental error and hence would not be considered for first time on appeal) with Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968) (holding that unobjected to error in charge could be raised on appeal).

In my view, appellant has waived his right to challenge the district attorney’s statement, because appellant did not object at the time of trial. The efficient and proper administration of justice dictates that this Court not consider issues on appeal which were not raised at trial when the trial court could have corrected the error had it been brought to that court’s attention. See Commonwealth v. Simon, 432 Pa. 386, 248 A. 2d *368289 (1968); Commonwealth v. Scoleri, 432 Pa. 571, 582, 248 A. 2d 295, 300 (1968) (concurring and dissenting opinion).

Mr. Justice Jones joins in this concurring opinion.