                         [J-64-2013][M.O. – Stevens, J.]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,               :   No. 23 EAP 2013
                                            :
             Appellee                       :   Appeal from the Judgment of Superior
                                            :   Court entered on 9/11/12 at No. 1336
             v.                             :   EDA 2010, affirming the judgment of
                                            :   sentence entered on 4/16/10 in the
HAROLD WINSTON NOEL, JR.,                   :   Court of Common Pleas of Philadelphia
                                            :   County, Criminal Division, at Nos. CP-
             Appellant                      :   51-CR-0011510-2008; CP-51-CR-
                                            :   0011511-2008 and MC-51-CR-
                                            :   0033142-2008
                                            :
                                            :   ARGUED: September 11, 2013




                               DISSENTING OPINION


MR. JUSTICE SAYLOR                                    DECIDED: November 21, 2014


      I agree with Mr. Justice Baer’s conclusion that the trial court violated Rule of

Criminal Procedure 631. See Concurring Opinion, slip op. at 6. That being the case,

and as Appellant preserved this meritorious claim of trial court error, the appropriate

inquiry implicates a harmless error analysis, for which the Commonwealth is obligated

to prove, beyond a reasonable doubt, that the error did not contribute to the verdict.

See Commonwealth v. Howard, 538 Pa. 86, 100, 645 A.2d 1300, 1307 (1994); see also

Commonwealth v. Strong, 575 Pa. 433, 437, 836 A.2d 884, 887 (2003) (applying a

harmless error analysis to a violation of a rule of criminal procedure and collecting
cases); Commonwealth v. Morris, 522 Pa. 533, 541, 564 A.2d 1226, 1230 (1989)

(holding that a violation of the hearsay rule was harmless).1

       Accordingly, I do not agree with the proposition of the majority and responsive

opinions that Appellant is not entitled to relief because he has failed to establish

prejudice.    See Majority Opinion, slip op. at 24 (“Because Appellant has not

demonstrated that the process deprived him of a fair and impartial jury, neither do we

conclude that Appellant suffered actual prejudice.”); Concurring Opinion, slip op. at 7 (“I

ultimately find myself in a concurring posture in this appeal because Appellant has failed

to preserve for appellate review the discrete issue of whether he suffered any actual

prejudice . . ..”). Consequently, and as the Commonwealth has not attempted to satisfy

its harmless error burden or offer grounds for shifting the evidentiary burden to

Appellant, I respectfully dissent.




1
  The Court has not consistently applied harmless error constructs when faced with a
violation of a criminal rule. See, e.g., Commonwealth v. Brown, 556 Pa. 131, 136, 727
A.2d 541, 544 (1999) (upon finding a violation of the criminal rule governing the
amendment of a criminal information, proceeding to examine whether the defendant
was prejudiced by that violation). Absent persuasive policy justifications for undertaking
an ad hoc approach based upon the character of the rule violated, which the
Commonwealth has not advanced in this case, I see no grounds for deviating from the
general rule imposing the burden upon the Commonwealth to prove that preserved
meritorious trial court errors are harmless.


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