                                   [J-93-2019]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA,                :   No. 8 WAP 2019
                                             :
                     Appellee                :   Appeal from the Order of the Superior
                                             :   Court entered 9/11/18 at No. 1172 WDA
                                             :   2016, vacating the judgment of
                v.                           :   sentence of the Court of Common Pleas
                                             :   of Allegheny County entered on 6/30/16
                                             :   at No. CP-XX-XXXXXXX-2015 and
JAMES CALVIN HAMLETT, JR.,                   :   remanding
                                             :
                     Appellant               :   ARGUED: October 16, 2019




                                       OPINION


CHIEF JUSTICE SAYLOR                             DECIDED: JULY 21, 2020


      Appeal was allowed to determine whether this Court should prohibit

Pennsylvania appellate courts from exercising their discretion to apply the harmless-

error doctrine when deemed warranted, in criminal cases where advocacy from the

Commonwealth on the subject is lacking.

      In 2016, Appellant was convicted of numerous crimes deriving from a sexual

assault upon a minor, and lengthy concurrent terms of incarceration were imposed at

sentencing.   On appeal, the Superior Court found that the trial court had erred in

admitting a video of a forensic interview of the victim into evidence. Nevertheless, the

intermediate court invoked the harmless-error doctrine to deny Appellant’s request for a
new trial, reasoning that the video was merely cumulative of properly-admitted evidence

in the form of the victim’s testimony.1

       Given that the Commonwealth hadn’t argued harmlessness, the Superior Court

invoked the precept that an appellate court may affirm a valid verdict based on any

reason appearing in the record, regardless of whether the rationale was raised by the

appellee. See Commonwealth v. Hamlett, No. 1172 WDA 2016, slip op. at 27-28, 2018

WL 4327391, at *13 n.8 (Pa. Super. Sept. 11, 2018) (citing Commonwealth v. Moore,

594 Pa. 619, 638, 937 A.2d 1062, 1073 (2007)).          In discussing this “right-for-any-

reason” doctrine, the intermediate court referenced Justice Wecht’s dissenting opinion

in Commonwealth v. Hicks, 638 Pa. 444, 156 A.3d 1114 (2017) (plurality).

       There, the Justice noted an “apparent tension between” this right-for-any-reason

precept and the allocation to the Commonwealth of the burden to demonstrate that an

error is harmless. Id. at 518 n.1, 156 A.3d at 1158 n.1 (Wecht, J., dissenting). Albeit

expressing a belief that “we can apply the [harmless-error] doctrine without prior

invocation,” he nonetheless proceeded to observe:

              it seems inconsistent to assign to a party a burden of proof
              that is applicable only in appellate proceedings, while
              determining simultaneously that the party has satisfied that
              burden without the party raising or addressing the doctrine in
              any way.
Id.




1 The Superior Court also discerned an error, in sentencing, pertaining to one of the
charges, and that court remanded for resentencing. Such assertion of error is
immaterial to this Court’s present review.


                                      [J-93-2019] - 2
       In the same passage of its opinion, the intermediate court also alluded to Justice

Baer’s concurrence in Hicks, in which he explained as follows:

              As Justice Wecht notes in his dissenting opinion, there are
              two seemingly incompatible pronouncements from this Court
              with respect to the Commonwealth's burden to raise
              harmless error. Traditionally, we have held that the
              Commonwealth must establish beyond a reasonable doubt
              that an error was harmless. More recently, however, this
              Court has recognized that we may affirm a judgment based
              on harmless error even if that argument was not raised by
              the Commonwealth because “an appellate court has the
              ability to affirm a valid judgment or verdict for any reason
              appearing as of record.” Thus, while ordinarily the
              Commonwealth has the burden of persuasion when it
              asserts that a particular error was harmless, sua
              sponte invocation of the harmless error doctrine is not
              inappropriate as it does nothing more than affirm a valid
              judgment of sentence on an alternative basis.
Hicks, 638 Pa. at 488, 156 A.3d at 1140 (Baer, J, concurring) (emphasis added;

footnote and citations omitted).

       We allowed appeal to consider Appellant’s contention that application of the

right-for-any-reason doctrine to deem an error harmless improperly relieves the

Commonwealth of its burden to demonstrate harmlessness beyond a reasonable doubt.

See Commonwealth v. Hamlett, ___ Pa. ___, 202 A.3d 45 (2019) (per curiam). The

issue is a legal one, over which our review is plenary. See, e.g., Yussen v. MCARE

Fund, 616 Pa. 108, 117, 46 A.3d 685, 691 (2012).2




2 Notably, Appellant has framed the question presented to center exclusively on the sua
sponte dynamic of the Superior Court’s decision-making. Accordingly, the issue does
not encompass the narrower question of whether the Superior Court may have erred in
the substantive aspects of its harmless-error review.


                                     [J-93-2019] - 3
       Presently, Appellant candidly acknowledges that Pennsylvania appellate courts --

including this one -- occasionally exercise their discretion by invoking the right-for-any-

reason doctrine to proceed, sua sponte, to determine whether errors are harmless. See

Brief for Appellant at 23-25 (citing, inter alia, Commonwealth v. Allshouse, 614 Pa. 229,

261 & n.21, 36 A.3d 163, 182 & n.21 (2012) (“This Court may affirm a judgment based

on harmless error even if such an argument is not raised by the parties.”)).3

Furthermore, he recognizes that “most federal circuit courts agree that they may

conduct harmless error analysis sua sponte.”         Id. at 26 (citing, inter alia, U.S. v.

Giovannetti, 928 F.2d 225, 226 (7th Cir. 1991) (per curiam)); see also U.S. v. Arrous,

320 F.3d 355, 356 (2d Cir. 2003) (portraying sua sponte consideration of harmless error

as a matter of common sense in a particular set of circumstances).4

       It is Appellant’s core position, however, that the practice should be disapproved

and discarded.    Principally, he maintains that application of the right-for-any-reason

doctrine to support sua sponte harmless-error review inappropriately relieves the

government from the requirement to meet its burden of proof of harmlessness, upon an

appellate court’s discernment of a trial error.     See, e.g., Brief for Appellant at 24

(depicting a “slow but sure dilution” of the harmless-error doctrine).      Appellant also

3Appellant also references: Commonwealth v. Hitcho, 633 Pa. 51, 79-80, 123 A.3d
731, 748 (2015); Commonwealth v. Moore, 594 Pa. at 638, 937 A.2d at 1073; and
Commonwealth v. Mitchell, 576 Pa. 258, 280 n.11, 839 A.2d 202, 215 n.11 (2003).

4 Appellant observes, however, that sua sponte review in the federal courts is supported
by a specific statute and rule. See 28 U.S.C. §2111 (“On the hearing of any appeal or
writ of certiorari in any case, the court shall give judgment after an examination of the
record without regard to errors or defects which do not affect the substantial rights of the
parties.”); Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded.”). And Appellant highlights the
absence of any similar approval via rulemaking or legislation in Pennsylvania.
Appellant, however, fails to provide any reason why this Court’s precedential case law
would lack the force of law in this arena.


                                      [J-93-2019] - 4
charges that this approach “jeopardizes the neutrality and impartiality of the appellate

courts, undermines the adversarial system, and presents serious . . . separation of

powers concerns.” Id. at 9.

       Throughout his brief, Appellant downplays concerns with judicial economy

underlying applications of the harmless-error precept, while stressing that the doctrine

was also implemented to secure justice for criminal defendants. See, e.g., Brief for

Appellant at 11 (citing Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 827

(1967)). In this vein, he highlights the observation, by the Supreme Court of the United

States, that “harmless-error rules can work very unfair and mischievous results when,

for example, highly important and persuasive evidence, or argument, though legally

forbidden, finds its way into a trial in which the question of guilt or innocence is a close

one.” Chapman, 386 U.S. at 22, 87 S. Ct. at 827. For this very reason, Appellant

relates, the Supreme Court imposed the exacting beyond-a-reasonable-doubt threshold

to findings of harmlessness associated with violations of federal constitutional law. See

id. at 24, 87 S. Ct. at 828; see also id. at 23, 87 S. Ct. at 828 (stressing “an intention not

to treat as harmless” those errors which affect substantial rights).

       In the seminal decision in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155

(1978), Appellant further explains, this Court extended the Chapman standard of proof

to instances of trial error in Pennsylvania state courts. See id. at 408, 383 A.2d at 164

(reasoning that, absent the beyond-a-reasonable-doubt litmus, “there is the danger that

a lenient harmless error rule may denigrate the interests and policies which both

constitutional and non-constitutional rules promote”).       Ultimately, he observes, the

harmless-error doctrine operates as a due-process guarantee to assure fundamental

fairness relative to criminal trials, notwithstanding any errors that may have occurred.

See Brief for Appellant at 17.


                                       [J-93-2019] - 5
         With respect to the right-for-any-reason principle, Appellant also highlights the

inherent limitations, such as the doctrine’s inapplicability where factual matters are in

dispute. See id. (citing SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S. Ct. 454, 459

(1943), and Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 501, 327 A.2d 72, 76 (1974)).

More centrally, he contends that the harmless-error and right-for-any-reason constructs

are entirely separate and unrelated. From Appellant’s point of view, the harmless-error

doctrine pertains to actual trial errors, which he categorizes as encompassing “errors in

admission” or “errors in use” of evidence. Id. at 19. By contrast, he envisions that

application of the right-for-any-reason doctrine is limited to “errors in rationale.” Id. at

20; see also id. at 21 (suggesting that the right-for-any-reason precept can apply only

where “no true trial error occurred”). It is Appellant’s position that “true trial errors”

render a trial potentially unfair, whereas “errors in rationale” do not. Id. at 22; id. at 23

(“Errors in rationale . . . do not render a trial potentially unfair because the evidence is

both properly admitted and the finder of fact is instructed to consider the evidence for

the correct evidentiary purpose.”).    In this regard, he asserts that the right-for-any-

reason doctrine is concerned solely with preventing a defendant whose conviction was

never impacted by an actual error from obtaining a windfall in the form of a new trial. Id.

at 23.

         The Commonwealth, for its part, urges that harmless-error review administered

by an appellate court of its own accord should be regarded as a “rarely-employed

exception” to the allocation of the burden of proof to the Commonwealth, and that

Pennsylvania appellate courts should retain the authority to raise harmless error sua

sponte in cases where no unfairness to criminal defendants will result.            Brief for

Appellee at 9.      The Commonwealth relies substantially on the current state of

Pennsylvania law -- as acknowledged by Appellant -- and the underlying policy of


                                      [J-93-2019] - 6
facilitating the promotion of judicial economy with due and appropriate regard for

defendants’ substantive rights.

       In these respects, the Commonwealth emphasizes that a criminal “defendant is

entitled to a fair trial but not a perfect one.” Lutwak v. U.S., 344 U.S. 604, 619, 73 S. Ct.

481, 490 (1953); accord Allshouse, 614 Pa. at 261, 36 A.3d at 182 (citation omitted).

The Commonwealth references other similar expressions by the Supreme Court of the

United States, such as the following:

              The harmless-error doctrine recognizes the principle that the
              central purpose of a criminal trial is to decide the factual
              question of the defendant’s guilt or innocence and promotes
              public respect for the criminal process by focusing on the
              underlying fairness of the trial rather than on the virtually
              inevitable presence of immaterial error.
Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 1436 (1986).

       Thematically, the Commonwealth stresses the high social costs of retrials and

the policy favoring conservation of limited judicial resources.       While conveying an

appreciation that such exactions are often unavoidable, the Commonwealth argues

nonetheless that “the balance of interest tips decidedly the other way when an error has

had no effect on the outcome of the trial.” Brief for Appellee at 11-12 (quoting U.S. v.

Mechanik, 475 U.S. 66, 72, 106 S. Ct. 938, 942-43 (1986)).              Like Appellant, the

Commonwealth recognizes that the relevant review litmus -- beyond a reasonable doubt

-- is a demanding one. See, e.g., id. at 25.

       Eschewing Appellant’s position that sua sponte harmless-error review and the

application of the right-for-any-reason doctrine are entirely distinct, the Commonwealth

reasons that the power of an appellate court to raise the issue of harmless error of its

own accord is a logical corollary of its authorization to affirm a valid judgment of

sentence for any sound reason that appears as of record. See id. at 39 (“The broader


                                        [J-93-2019] - 7
of the two concepts, ‘right for any reason,’ is . . . customarily offered as the

jurisprudential underpinning of the narrower proposition that an appellate court may

raise harmless error on its own motion.”). It also emphasizes that the two precepts

serve the same purposes, namely, to arrive at legally-correct, fair, and just decisions

while also fostering judicial economy. See id. at 40.

       Additionally, the Commonwealth relies on a core precept underlying the right-for-

any-reason doctrine, which is that only appellants are charged with issue preservation

obligations, whereas appellees bear none. See, e.g., id. at 42 (citing Sherwood v.

Elgart, 383 Pa. 110, 115, 117 A.2d 899, 901 (1955)); accord, e.g., Heim v. MCARE

Fund, 611 Pa. 1, 10, 23 A.3d 506, 511 (2011). In the Commonwealth’s view, Appellant

seeks a novel decisional rule that would necessarily upend this conventional approach

to issue preservation by imposing waiver, or its functional equivalent, on the

government as the appellee.       See Brief for Appellee at 7, 42.        By way of further

explanation, the Commonwealth relates that there are many reasons why advocates

representing appellees may refrain from presenting certain alternative arguments, such

as out of a concern that such references might dilute the strength of primary

contentions, or on account of word-count limitations on briefing. See id. at 43, 50.

       Finally, responding to Appellant’s portrayal of outcome-oriented judicial decision-

making by judges, the Commonwealth posits that, “[s]urely, the appellate courts of this

Commonwealth do not take lightly their duty to make fair and just decisions when the

lives and liberty of criminal defendants are at stake.” Id. at 27. In this regard, a litany of

cases in which appellate courts have found that errors were not harmless are

referenced in the government’s brief. See id. at 27 n.2.

       Upon our review, we agree with the Commonwealth’s position in all material

respects. And we credit Justice Baer’s salient conclusion that “sua sponte invocation of


                                       [J-93-2019] - 8
the harmless error doctrine is not inappropriate as it does nothing more than affirm a

valid judgment of sentence on an alternative basis.” Hicks, 638 Pa. at 488, 156 A.3d at

1140 (Baer, J, concurring).

      As the Commonwealth ably explains, the availability of discretionary sua sponte

review in appropriate cases serves as an exception to the ordinary rule that the

government bears the burden of persuasion relative to harmless error. Accord United

States v. Burgos-Montes, 786 F.3d 92, 114 (1st Cir. 2015) (explaining that the

“government generally bears the burden of persuasion on whether an error was

harmless, although an appellate court may also consider sua sponte whether an error

was harmless” (emphasis added)).5        The harmless-error doctrine functions as the

underlying substantive principle of law, and the right-for-any-reason precept merely

provides the explanation for when and why an appellate court may exercise its

discretionary prerogative to proceed of its own accord to preserve a valid verdict in

appropriate circumstances. See, e.g., Allshouse, 614 Pa. at 261 & n.21, 36 A.3d at 182

& n.21; Jones v. State, 802 S.E.2d 234, 237 (Ga. 2017) (reasoning that “the error in

admitting [certain] evidence was harmless as to appellant’s conviction and sentence . . .

and so the Court of Appeals’ judgment is affirmed as right for any reason”).6




5 While the burden assigned to the Commonwealth is frequently denominated as one of
“proof,” we also agree with Justice Baer’s approach of addressing this obligation in
terms of persuasion, given that the advocacy on the subject is presented via appellate
briefing. See Hicks, 638 Pa. at 488, 156 A.3d at 1140 (Baer, J, concurring).

6 We note that many of the other jurisdictions which permit review for harmlessness by
an appellate court of its own accord do not specifically reference the right-for-any-
reason doctrine. In these instances, their sua sponte consideration of harmless error in
appropriate circumstances may simply be regarded as a close cousin of right-for-any-
reason review.


                                     [J-93-2019] - 9
       It is widely recognized that the appellate courts may proceed of their own accord

in this fashion for institutional reasons, in particular, based on the systemic interest in

avoiding costly and unnecessary proceedings before the judiciary.                 See, e.g.,

Giovannetti, 928 F.2d at 226.       Indeed, as Appellant observes, federal courts are

directed by statute and by governing rules of procedure to disregard “[a]ny error, defect,

irregularity, or variance that does not affect substantial rights.” Fed. R. Crim. P. 52(a).7

       To the degree that Appellant implies that judges step into the role of advocates

when they undertake sua sponte harmless-error review, we disapprove the suggestion.

There are a litany of other interests impacted by the social costs of retrial, including

those of the judicial system at large, jurors, victims, other witnesses, and the general

public. See, e.g., U.S. v. Mechanik, 475 U.S. at 72, 106 S. Ct. at 942-43. Judicious

recourse to the discretionary prerogative to review for harmless error may appropriately

proceed on account of these larger concerns. Accord In re A.J.R.-H., 647 Pa. 256, 288,

188 A.3d 1157, 1176 (2018) (“It would be wasteful to send a case back to a lower court

to reinstate a decision which it had already made but which the appellate court

concluded should properly be based on another ground within the power of the

appellate court to formulate.” (quoting Chenery Corp., 318 U.S. at 88, 63 S. Ct. at 459)).

       And, contrary to Appellant’s position, appellants in criminal cases are not

deprived of fundamental requisites of due process -- including notice and an opportunity

to be heard or their right to assistance of counsel -- by virtue of the mere fact of sua

sponte review for harmlessness. If this were the case, of course, the Congressional

enactment and federal rule facilitating such review would be patently unconstitutional as


7 This is not to say that federal courts are necessarily required to invoke harmless-error
precepts sua sponte. See, e.g., Giovannetti, 928 F.2d at 227 (portraying the federal
courts’ authority to “overlook a failure to argue harmlessness” as discretionary, as is
also the case in the Pennsylvania state courts).


                                      [J-93-2019] - 10
applied to their authorization of harmless-error review by the federal appellate courts

acting of their own accord. See supra note 4. In cases in which harmlessness may be

a factor, however, able defense attorneys can well anticipate that appellate courts may

be legitimately concerned with the societal costs attending a new trial, and those

attorneys are free to address the prejudicial impact of trial errors in their own appellate

briefs.8 Such opportunity, of course, alleviates the noted constitutional concerns.

       Appellant also cites no authority to support his position that there is a gateway to

the right-for-any-reason doctrine that distinguishes between errors in rationale and

mistakes in the admission or use of evidence. Significantly, these categories are not

mutually exclusive.    For example, the selection of an incorrect basis for admitting

evidence can be viewed as employment of an erroneous rationale. Moreover, in our

view, the primary constraints arise from the requirements that matters in issue cannot

involve otherwise unresolved questions of disputed fact, see, e.g., Chenery Corp., 318

U.S. at 88, 63 S. Ct. at 459, and that there must be great confidence in the validity of

the verdict, despite the trial error or errors discerned.9

       We emphasize that the right-for-any-reason doctrine should not be routinely or

liberally employed to impose a high barrier to reversal of criminal convictions. In this

8   On the other hand, since invocation of the right-for-any-reason construct is
discretionary with the appellate court, the Commonwealth proceeds at its own risk when
it elects not to address the subject in its responsive brief.

9 Notably, as the Commonwealth observes, a number of Appellant’s primary lines of
attack go more toward impugning harmless-error review as such, as distinguished from
the sua sponte aspect. Accord Brief for Appellee at 52 (explaining that Appellant “does
not show that there is a logically necessary -- or ineluctable -- connection between this
Court’s act of raising and deciding harmless error sua sponte and incorrect judicial
decisions”); id. (“Indeed, the Commonwealth disagrees strenuously with the
unsupported assumption that a court’s act of taking up an issue sua sponte results, in
and of itself, in an incorrect, unjust, tendentious or result-oriented decision.”).



                                       [J-93-2019] - 11
respect, we note that various federal courts have suggested that sua sponte review is

extraordinary and should be disfavored, see, e.g., United States v. Gonzalez–Flores,

418 F.3d 1093, 1100–01 (9th Cir. 2005), and that the Commonwealth itself suggests

similar restraint in its present brief. See Brief for Appellee at 9. Along these lines, we

find that the difficulties attending application of the harmless-error doctrine derive -- not

from employment of the right-for-any-reason precept to permit such review -- but from

the superficiality with which harmlessness may sometimes have been discerned.10

       Finally, we observe that, when an appellate court deems it appropriate to

exercise its discretion to undertake a harmless error analysis of its own accord in close

cases, it has the ability to enhance fairness to the defendant and facilitate its own

review by directing that there be supplemental briefing.




10  See generally Harry T. Edwards, To Err Is Human, But Not Always Harmless: When
Should Legal Error Be Tolerated?, 70 N.Y.U. L. REV. 1167 (1995) (discussing, at length,
the difficulties facing appellate judges in enforcing a rigorous threshold in harmless-error
review in cases in which the defendant's guilt seems well established, and the
substantial consequences of failing to do so, particularly in terms of the erosion of
constitutional rights); Jeffrey O. Cooper, Searching for Harmlessness: Method and
Madness in the Supreme Court's Harmless Constitutional Error Doctrine, 50 U. KAN. L.
REV. 309, 340, 344 (2002) (discussing the exacting analysis essential to harmless-error
review and questioning conclusory decision-making that is “essentially opaque because
it tends to [affirm on the basis of harmless error] in the most summary fashion, with little
or no analysis”).

Notably, some courts have provided for more discerning review when harmless error is
invoked sua sponte. See, e.g., Giovannetti, 928 F.2d at 226-27 (discussing the relevant
test in terms of “certain[ty] that the error did not affect the outcome” (emphasis added)).
This position, however, is not before the Court at this time.


                                      [J-93-2019] - 12
The order of the Superior Court is affirmed.

Justices Baer, Todd, Donohue, Dougherty and Mundy join the opinion.

Justice Donohue files a concurring opinion.

Justice Wecht files a dissenting opinion.




                              [J-93-2019] - 13
