Com. v. Clair

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Before JONES; NIX; The rule of Commonwealth v. Williams, Supra, however has been subject to attack. Dissenting in that case; POMEROY; POMEROY
• Citation: 326 A.2d 272,458 Pa. 418
• Parties: COMMONWEALTH of Pennsylvania v. Alvin Menno CLAIR, Appellant.
• Decision Date: 16 October 1974

Page 272

326 A.2d 272 458 Pa. 418 COMMONWEALTH of Pennsylvania
v.
Alvin Menno CLAIR, Appellant. Supreme Court of Pennsylvania. Oct. 16, 1974.

[458 Pa. 419] Thomas H. Wentz, III, New Holland, D. Patrick Zimmerman, Lancaster, for appellant.

Henry J. Rutherford, Dist. Atty., George T. Brubaker, Asst. Dist. Atty., Lancaster, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

NIX, Justice.

This appeal raises the question of the applicability of the basic and fundamental

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error doctrine to the failure to properly preserve trial errors in criminal matters.

Appellant was convicted by a jury of the murder of his wife in the second degree. He was sentenced to a term of imprisonment of not less than seven nor more than fourteen years. This is a direct appeal from the judgment of sentence. Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202, 17 P.S. § 211.202 (Supp.1974--75).

[458 Pa. 420] Appellant raises three objections to the jury charge. They are: (1) that the trial judge invaded the jury's province; (2) that the judge prejudiced appellant when reviewing the testimony and (3) that the charge as to murder in the second degree was erroneous. Although appellant admits that he failed to raise these objections before the jury retired to deliberate in accordance with Rule 1119(b) of the Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix, he nevertheless claims that these errors are reviewable by this Court because they are basic and fundamental errors which justify reversal absent an objection or exception. Appellant cites Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968).

The rule of Commonwealth v. Williams, Supra, however has been subject to attack. Dissenting in that case, Mr. Justice Roberts pertinently observed:

'The proper functioning of our guilt-determining process neither requires nor assures a defendant an errorless trial. A defendant is, however, entitled to a fair trial free of such trial errors as his trial counsel timely sought to have corrected by calling them to the court's attention. Trial errors are made in the courtroom and it is there that the correction process should at least be Initiated.

The defense may not successfully complain of trial errors for the first time Only after the jury has returned a verdict of guilty, unless the errors were initially challenged at trial, and thereby preserved on appeal. The majority now--contrary to the whole course of modern trial procedure--encourages defense counsel to sit by silently without calling errors to the trial court's attention until After the guilty verdict is returned. In effect the majority's present approach places the appellate court in the role of a super-trial-defense counsel. Where counsel fails to call errors to the attention of the trial judge, the majority ignores that deficiency and [458 Pa. 421] assumes the function of protecting those failures by granting relief despite the silence of counsel at trial.' 432 Pa. at 569--70, 248 A.2d at 307.

In our judgment the basic and fundamental error doctrine has created greater problems than it has alleviated. First it is difficult to determine what is a basic and fundamental error. Compare Commonwealth v. Scoleri, 432 Pa. 571, 248 A.2d 295 (1968) with Commonwealth v. Williams, Supra and Commonwealth v. Ewell, Pa., 319 A.2d 153 (filed May, 1971). Secondly, the doctrine has created the anomalous situation whereby all reversible error is not basic and fundamental error yet there is no readily perceptible substantive difference between the two. Thus, the test is merely a vehicle whereby the Court can arbitrarily reverse on an otherwise unpreserved issue.

Most recently this Court has expressly abrogated the doctrine of basic and fundamental error in civil cases, Dilliplaine v. Lehigh Valley Trust Company, 322 A.2d 114 (filed June, 1974). There the Court reasoned that the doctrine (1) 'removes the professional necessity for (diligent preparation),' (2) penalizes the opposing party, (3) denies the trial court an opportunity...