Com. v. Hill
Decision Date | 31 October 1980 |
Citation | 422 A.2d 491,492 Pa. 100 |
Parties | COMMONWEALTH of Pennsylvania, v. Clyde Eugene HILL, Appellant. |
Court | Pennsylvania Supreme Court |
Raymond C. Hedger, Jr., Harrisburg, for appellant.
Richard A. Lewis, Dist. Atty., Marion E. MacIntyre, First Asst. Dist. Atty., for appellee.
ORDER
NIX, J., filed an Opinion in Support of Affirmance in which KAUFFMAN, J., joins.
ROBERTS, J., filed an Opinion in Support of Reversal in which O'BRIEN, C. J., and FLAHERTY, J., join.
The Court being evenly divided the Judgments of Sentence are again affirmed.
Appellant, Clyde Eugene Hill, was convicted by a jury on October 18, 1973 of two counts of murder in the second degree. 1 We affirmed the judgments of sentence on direct appeal, Commonwealth v. Hill, 453 Pa. 349, 310 A.2d 88 (1973). 2 On May 9, 1977, Hill filed a pro se petition seeking post-conviction relief. 3 Counsel other than trial counsel was appointed and, after a hearing, Hill was granted permission to file post verdict motions nunc pro tunc. The court en banc denied these motions and Hill appealed to this Court pursuant to 42 Pa.C.S.A. § 722(1). 4 We transferred the case to the Special Transfer Docket of the Superior Court. 5 The Superior Court, sitting in a panel consisting of the late Mr. Justice Manderino, former President Judge Watkins and Judge Cirillo, affirmed the order of the court en banc. 6 The Superior Court panel noted that this Court had failed to reach agreement on the underlying question, see, Commonwealth v. Ernst, 476 Pa. 102, 381 A.2d 1245 (1977), and urged that we accept review of this appeal, which we did.
The factual predicate of today's case in not complex. At his trial in 1973 for murder, the issue of Hill's sanity was raised. The trial court instructed the jury that when a defendant asserts the defense of insanity, the defendant has the burden of proving insanity by a fair preponderance of the evidence. Hill's trial counsel did not object to this charge. It is conceded that the charge as given was in conformity with the law as it existed at that time. See e. g., Commonwealth v. Zlatovich, 440 Pa. 388, 393, 269 A.2d 469 (1970); Commonwealth v. Vogel, 440 Pa. 1, 9-10, 268 A.2d 89 (1970); Commonwealth v. Woodhouse, 401 Pa. 242, 248-49, 164 A.2d 98 (1960); Commonwealth v. Carluccetti, 369 Pa. 190, 199, 85 A.2d 391, 395 (1952).
We subsequently changed the controlling law in Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974), and provided that where there is evidence in the case sufficient to raise the insanity issue, the prosecution must bear the burden of proving a defendant's sanity beyond a reasonable doubt. There is no doubt that under the Demmitt standard, the instructions given the jury at Hill's trial would now be deemed erroneous. In the Ernst case, all six members of the Court agreed that where a defendant tried prior to the decision in Demmitt had timely objected to such a charge, he should be given retroactive benefit of the Demmitt standard, where his direct appeal was heard after Demmitt, and awarded a new trial. The Court was evenly divided, 7 as to whether an appellant on direct appeal should be allowed to raise the question where a timely objection had not been interposed at trial.
The major thrust of the opinions in Support of Affirmance and in Support of Reversal in Ernst -and, indeed, the primary focus of the briefs presented to us in the present case-was directed to whether Demmitt was based on state evidentiary law or constitutional law, and whether the Demmitt ruling should be given retroactive effect. 8 After study we are now convinced that the true crux of the problem presented is the proper application of our strict requirement that litigants must timely preserve their objections to the actions of the trial court as a condition precedent to appellate review of those actions. The question of retroactivity of the Demmitt rule was answered when it was decided that the objection could apply to trials before the file date of the opinion in Demmitt. See e. g., Commonwealth v. Moyer, 466 Pa. 464, 468, 353 A.2d 447, 449 (1976); Commonwealth v. Williams, 463 Pa. 370, 373 and n.1, 344 A.2d 877 (1975). The question as to whether we should foreclose an issue because of the absence of a timely objection is not one of retroactivity but rather one of issue preservation. 9 These are two mutually exclusive concepts. The determination of the retroactivity of a principle goes to the question of whether that principle is at issue in the case; i. e., its applicability to the trial in question. The question of issue preservation assumes the applicability of the principle but precludes consideration of that question because of procedural defects in the raising of the claim. The failure to interpose an objection is clearly the type of factor which raises a question of issue preservation and it is not one of the concerns relevant in a determination as to the appropriateness of retroactive application. 10
The basic principle of issue preservation, which was espoused in Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), has been incorporated into the rules of procedure governing the actions before our courts. 11 Specifically, Criminal Procedure Rule 1119(b) regarding requests for instructions and the charge to the jury, states:
(b) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. Pa.R.Crim.P., Rule 1119(b).
This rule and the underlying principle it reflects has been upheld in a variety of contexts by this Court. See e. g., Commonwealth v. Johnson, 484 Pa. 545, 400 A.2d 583 (1979) ( ); Commonwealth v. James, 483 Pa. 425, 397 A.2d 417 (1979) ( ); Commonwealth v. Kozek, 479 Pa. 171, 387 A.2d 1278 (1978) ( ); Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978) ( ); Commonwealth v. Smith, 477 Pa. 505, 384 A.2d 1202 (1978) ( ); Commonwealth v. Culberson, 467 Pa. 424, 358 A.2d 416 (1976) ( ); Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976) ( ); Commonwealth v. Dukes, 460 Pa. 180, 331 [492 Pa. 107] A.2d 478 (1975) (claimed error of trial court in failing to charge jury on presumption of innocence could not be raised as a reason for a new trial and could not be entertained on appeal, where defendant failed to take exception to failure of court to so charge). Furthermore, this principle applies to the prosecutor as well as to the defendant. See Commonwealth v. Brown, 232 Pa.Super. 26, 332 A.2d 188 (1974) ( ).
The "sound jurisprudential considerations" underlying the policy "that an appellant may not assign as error a portion of a charge to a jury or an omission therefrom unless specific objection is made before the jury retires to deliberate (, )... is reflective of the elementary principle that an appellate court does not review issues raised for the first time on appeal." Commonwealth v. Ernst, 476 Pa. at 107-08, 381 A.2d at 1246-47 (opinion in Support of Affirmance). In Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), we set forth the factors compelling the strict enforcement of this policy:
...
To continue reading
Request your trial-
Commonwealth v. Geschwendt
... ... Desist v. United States, 394 U.S. 244, 256, 89 S.Ct ... 1030, 1037, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting); ... Commonwealth v. Hill, 492 Pa. 100, 115, 422 A.2d ... 491, 499 (1980) (Opinion in Support of Reversal); ... Commonwealth v. Ernst, 476 Pa. 102, 111, 381 A.2d ... ...
-
Williams v. State
...it is not one of the concerns relevant in a determination as to the appropriateness of retroactive application. Commonwealth v. Hill, 492 Pa. 100, 105, 422 A.2d 491, 494 (1980) (Opinion in Support of Affirmance) (footnotes omitted) (emphasis added). In short, the failure to raise an issue, ......
-
Com. v. Geschwendt
...Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 1037, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting); Commonwealth v. Hill, 492 Pa. 100, 115, 422 A.2d 491, 499 (1980) (Opinion in Support of Reversal); Commonwealth v. Ernst, 476 Pa. 102, 111, 381 A.2d 1245, 1249 (1978) (Opinion in......
-
Com. v. Carr
...the same.' " Commonwealth v. Brown, 494 Pa. 380, 385, 431 A.2d 905, 908 (1981) (quoting Commonwealth v. Hill, 492 Pa. 100, 115, 422 A.2d 491, 499 (1980) (Opinion in Support of Reversal, Roberts, J.)). The common law approach thus requires that where an appellate decision overrules prior law......