apportionment of comparative negligence here.” (emphasis added)). 1            The error of

omission was, of course, exacerbated by the trial court’s affirmative admonishment to

the jurors that Appellant’s statutory duties were “not an issue in this case.” N.T., Sept.

27, 2016, at 326.

       In its harmless error analysis, the majority distinguishes between whether a

preserved trial error “could” or “would” have affected a verdict, opining that a new trial is

justified only in the latter scenario. See Majority Opinion, slip op. at 16, 19. However,

whether an error would have affected a particular verdict is most often unknowable, and

accordingly, appellate courts are generally relegated to considering probabilities.2

       “[A]n inquiry into what makes an error harmless, though one of philosophical

tenor, is also an intensely practical inquiry into the health and sanitation of the law.”

Elizabeth Price Foley & Robert M. Filiatrault, The Riddle of Harmless Error in Michigan,

46 W AYNE L. REV. 423, 424 (2000) (quoting ROGER J. TRAYNOR, THE RIDDLE                   OF

HARMLESS ERROR at ix (1970)). “Harmless error rules are, essentially, proxies for the


1  As the majority relates, the negligence per se charge proposed by Appellee
incorporated a developed treatment of the specific statutes governing street crossings
by pedestrians. See Majority Opinion, slip op. at 4 n.3. Not only are the duties
particularized by the statutes, there are multiple duties of which the jurors should have
been apprised. It seems to me to be likely that a jury which would find that a litigant
disregarded multiple duties might be more inclined to attribute a higher degree of fault to
that litigant. In any event, I believe that the nature of the duty (a generalized common
law duty of due care versus specific statutory obligations) can be quite relevant to a
jury’s determination of the degree of negligence.

2 Indeed, the standard for post-conviction relief from a judgment of sentence in criminal
cases based on unpreserved trial errors would appear to be less stringent than the
would-have-affected requirement enforced by the majority here for preserved trial error
in civil cases. In this regard, in terms of prejudice, a post-conviction petitioner need only
demonstrate “a reasonable probability” of a different outcome. See Commonwealth v.
Pierce, 515 Pa. 153, 157, 527 A.2d 973, 974 (1987) (quoting Strickland v. Washington,
466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984) (emphasis added)).


                          [J-19A&B-2019][M.O. – Mundy, J.] - 2
level of assurance that an appellate court must have before it is permitted to set aside

the judgment below.” Id. at 425.

        To the degree that refinements to the Pennsylvania standard are implicated, I

take no issue with the assignment of the burden to establish prejudice to the appellant.

I would clarify, however, that such burden shouldn’t be an onerous one.                Where

appellate courts cannot express confidence that an outcome would have been the same

in the absence of a preserved trial error, the courts ought to be more receptive to the

position that errors are prejudicial. Accord Shinseki v. Sanders, 556 U.S. 396, 410, 129

S. Ct. 1696, 1706 (2009) (“Often the circumstances of the case will make clear to the

appellate judge that the ruling, if erroneous, was harmful and nothing further need be

said.   But, if not, then the party seeking reversal normally must explain why the

erroneous ruling caused harm.”); cf. Warren v. Pataki, 823 F.3d 125, 138 (2d Cir. 2016)

(“An error is harmless if we can conclude with fair assurance that the evidence did not

substantially influence the jury. In civil cases, the burden falls on the appellant to show

that the error was not harmless and that it is likely that in some material respect the

factfinder’s judgment was swayed by the error.”).3



3 Complicating the harmless error inquiry, in some cases, such as the present one, the
assessment of whether a trial error is ultimately harmless may be steeped in credibility
matters, which are generally outside the province of appellate courts which did not hear
and see the witnesses. The fact that an appellant cannot secure a resolution of the
credibility matters on appellate review, and thereby solidify a prejudice determination,
should not serve to entrench verdicts infected by trial court error. Cf. Commonwealth v.
Young, 561 Pa. 34, 87 & n.16, 748 A.2d 166, 194 & n.16 (2000) (Opinion on
Reargument) (refusing to even consider harmless error in terms of whether a criminal
verdict might be supported by overwhelming evidence when the appellant had placed
material credibility matters in issue at trial, because credibility matters “are not within the
province of an appellate court”). Rather, in these scenarios, the appellate courts’
confidence in the verdict should be diminished and the appellant’s burden thereby
advanced.


                          [J-19A&B-2019][M.O. – Mundy, J.] - 3
       By failing to instruct the jurors about highly material statutory provisions

specifically defining multiple duties owed by Appellant, I conclude that the trial court

committed error. Additionally, it seems more likely than not to me that such error had

an impact on the jurors’ assessment of the degree of Appellant’s negligence. See supra

note 1. While the majority’s elevated threshold for disproving harmless error in civil

cases may be of practical benefit to the court system in terms of curtailing the number of

retrials, to my mind, it unduly impedes fairness to those suffering errors by the trial

courts, despite their time-of-trial efforts to secure the essential remediation.




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