                              [J-26-2015] [MO: Baer, J.]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT


RANDALL A. CASTELLANI AND JOSEPH :               No. 117 MAP 2014
J. CORCORAN,                     :
                                 :               Appeal from the order of the Superior Court
               Appellants        :               at No. 907 MDA 2012 dated March 11,
                                 :               2014 affirming the order of the Lackawanna
                                 :               County Court of Common Pleas, Civil
           v.                    :               Division, at No. 2005 CV 69 dated August
                                 :               19, 2011.
                                 :
THE SCRANTON TIMES, L.P. T/D/B/A :               ARGUED: April 8, 2015
THE SCRANTON TIMES AND THE       :
TRIBUNE AND JENNIFER L. HENN,    :
                                 :
               Appellees         :


                       CONCURRING AND DISSENTING OPINION


MR. JUSTICE EAKIN                                          DECIDED: October 27, 2015
       I agree with the Majority that Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899

(Pa. 2007), imposed no requirement of verifiability, and that the judicial opinions are not

inadmissible hearsay when offered solely to prove actual malice. See Majority Slip Op.,

at 23-24. All agree they are hearsay opinions about falsity and thus not admissible on

the issue of falsity. I dissent because I believe a limiting instruction is insufficient to

ensure the jury will not consider these opinions as proof the publications were in fact

false; it would be asking the impossible of jurors to do so, and thus, I find them unfairly

prejudicial if admitted before the jury finds the articles are in fact false.

       With all due respect to counsel’s choice of trial strategy, that “right” is hardly

sacrosanct or absolute, nor is it even remotely of constitutional magnitude. There are

always considerations that can cause counsel’s plans to give way, particularly where
strategy confounds the prospects of a fair verdict — a fair trial must trump a lawyer’s

strategy every time. And there really is but one strategic reason to insist on introducing

the opinions before proving the articles are false, and that reason is obvious — limiting

instruction or no, judicial opinions saying the articles are false simply cannot be ignored

by jurors who have the task of deciding whether those articles are false. No other

reasonable strategic rationale appears, and it is a good strategy, for after having heard

that evidence, can we honestly believe the jury could return with a verdict that says those

judges lied, that despite what these judges said, the articles are not false?

       The Majority states the proposed limiting instruction is sufficient to cure any unfair

prejudice and preclude the jury from considering the opinions when determining falsity.

See id., at 26 (“[T]he potential for the jury to consider the judicial opinions for an improper

basis H can be ameliorated by a limiting instruction to the jury that it alone must decide

whether the Newspaper’s articles were published with malice, and the judicial opinions

were offered for the limited purpose of supporting [a]ppellants’ claim in this regard.”).

       With all respect, in my view, this general notion of “amelioration by instruction” is

unrealistic here. The evidence of malice and falsity cannot be sequestered by merely

instructing the jury to ignore the judges’ statements that the articles are false before

deciding whether the articles are, in fact, false. See generally McCormick on Evidence §

59, at 408-09 (7th ed. 2013) (“Some hearsay problems cry out for the invocation of Rule

403. Assume that the proponent offers an out-of-court statement for a nonhearsay

purpose but on its face the declaration asserts facts directly relevant to a critical issue in

the case and the declarant would presumably have personal knowledge of the facts.

Here common sense suggests that there is a grave risk that the jurors will misuse the

testimony as substantive evidence.”).




                               [J-26-2015] [MO: Baer, J.] - 2
       While jurors are generally presumed to follow a court’s instructions,

Commonwealth v. Chmiel, 30 A.3d 1111, 1147 (Pa. 2011) (citation omitted), the issue is

whether McCormick’s manifest “grave risk” should be ignored in this unique

circumstance. I simply cannot agree the jurors will be able to disregard statements

made by two judges opining on facts that are required for the very basic determination the

jurors are to make.     No matter the length or repetition of precise and completely

understandable legal instructions, no matter the jurors’ desire to abide thereby, we cannot

unring this bell.   Do we really think the jurors will compartmentalize this manifestly

pertinent evidence, turning a deaf ear and a blind eye to judicial statements, simply by

telling them not to consider it? Cf. Nipper v. Snipes, 7 F.3d 415, 418 (4th Cir. 1993)

(“[J]udicial findings of fact present a rare case where, by virtue of their having been made

by a judge, they would likely be given undue weight by the jury, thus creating a serious

danger of unfair prejudice.” (citations and internal quotation marks omitted)). This is a

prospect so unlikely that we should not give it our imprimatur.

       The cure would not be complicated. A simple bifurcated trial on the questions of

malice and falsity would eliminate the fiction that a jury could disregard the inadmissible

evidence.   That is, if the jury finds the articles were false, without hearing of the

inadmissible judicial statements opining on falsity, that finding is fair; we are assured the

prejudicial hearsay evidence was not considered. Only then would ex parte opinions on

falsity be given to them, as evidence unique to the second question, malice. I view this

as the best safeguard against unfair prejudice while providing appellants the latitude to

present their case as they see fit.

       For these reasons, I respectfully dissent.




                               [J-26-2015] [MO: Baer, J.] - 3
