                             [J-93-2019] [MO: Saylor, C.J.]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                 WESTERN DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                     :   No. 8 WAP 2019
                                                   :
                          Appellee                 :   Appeal from the Order of the
                                                   :   Superior Court entered September
                                                   :   11, 2018 at No. 1172 WDA 2016,
                v.                                 :   vacating the Judgment of Sentence
                                                   :   of the Court of Common Pleas of
                                                   :   Allegheny County entered June 30,
 JAMES CALVIN HAMLETT, JR.,                        :   2016 at No. CP-02-CR-0014824-
                                                   :   2015 and remanding.
                          Appellant                :
                                                   :   ARGUED: October 16, 2019


                                      DISSENTING OPINION


JUSTICE WECHT                                      DECIDED: JULY 21, 2020
       Does the Commonwealth have a burden to establish harmless error? Unless the

Majority is inclined to overrule our seminal decision on the harmless error doctrine, the

answer incontrovertibly is “yes.” Commonwealth v. Story, 383 A.2d 155, 162 n.11 (Pa.

1978) (“[T]he burden of establishing that the error was harmless beyond a reasonable

doubt rests with the Commonwealth.”). Why, then, may a court raise the issue of

harmless error sua sponte, and then proceed to rule in the Commonwealth’s favor

thereon, despite the Commonwealth’s failure to carry its burden, and despite any attempt

by the Commonwealth to raise, assert, cite, discuss, or apply the harmless error doctrine

to the facts of the case? The Majority appears to suggest that it has resolved this second

question today, but its answer is irreconcilable with the settled answer to the first question.

A burden must be satisfied by the litigant who bears it, not by the adjudicator. Otherwise,

it is no burden at all.
       The essential meaning of a “burden” in the law is readily understood by judges,

lawyers, law students, scholars, television commentators, and laypersons alike. It means

that there is some kind of obligation to carry one’s point, lest the point be lost. This might

make the question before us appear to have an obvious answer.                 Not so.    The

jurisprudential waters have significantly muddied over the last two decades. The crux of

today’s appeal is the “tension” that has grown within our harmless error jurisprudence, a

tension that manifests itself in two divergent lines of precedent. On the one hand, there

is the fundamental principle, recognized by the Supreme Court of the United States in

Chapman v. California, 386 U.S. 18 (1967), and by nearly every court that has followed,

that it is the prosecution’s burden to establish the harmlessness of an error that potentially

tainted a defendant’s conviction.       See id. at 24; Story, 383 A.2d at 162 n.11;

Commonwealth v. Davis, 305 A.2d 715, 719 (Pa. 1973).1 On the other hand, there is this

1       State courts overwhelmingly recognize this burden. The cases are legion. See,
e.g., State v. James, 443 P.3d 1063, 1079 (Kan. 2019) (“The burden of demonstrating
harmlessness is on the party benefiting from the error, which, in this case, is the State.”);
Coleman v. Binion, 829 S.E.2d 1, 26 (W.Va. 2019) (“In a criminal case, the burden is upon
the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.”) (citation and internal quotation
marks omitted); State v. Larkin, 183 A.3d 589, 595 (Vt. 2018) (“The State bears the
burden of proving that an error . . . is harmless.”); State v. Rivas, 398 P.3d 299, 313-14
(N.M. 2017) (“For a non-structural, constitutional error as has been established here, the
State bears the burden of proving beyond a reasonable doubt that the error was harmless
to the outcome.”); State v. DeLeon, 374 P.3d 95, 100 (Wa. 2016) (“The State bears the
burden of showing that the constitutional error was harmless.”); State v. Perry, 245 P.3d
961, 973 (Idaho 2010) (constitutional error necessitates reversal “unless the State proves
beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained”) (citation and internal quotation marks omitted); State v. Sayles, 49 S.W.3d 275,
280 (Tenn. 2001) (“Once a constitutional error has been established . . . the burden is
upon the State to prove that the constitutional right violation is harmless beyond a
reasonable doubt.”) (citation and internal quotation marks omitted); Dawson v. State, 608
A.2d 1201, 1204 (Del. 1992) (“The defendant has the initial burden of demonstrating error.
If the defendant is successful in discharging that obligation, the burden of proof shifts to
the State.”).



                             [J-93-2019] [MO: Saylor, C.J.] - 2
Court’s more recent suggestion that an appellate court’s sua sponte invocation of the

harmless error doctrine is a permissible exercise of the court’s prerogative to apply the

right-for-any-reason doctrine—a notion floated in an undeveloped footnote in

Commonwealth v. Mitchell, 839 A.2d 202, 215 n.11 (Pa. 2003), and applied by this Court

on a handful of occasions since.

       Where our precedents hold simultaneously that there is a burden placed upon a

party and that the court may elect at will to shoulder that burden itself, the precedents are

incompatible. I would preserve the foundations of the harmless error doctrine, adhere to

Story, and disavow our Mitchell line of cases. I would enforce the burden recognized in

Chapman.




       Every United States Court of Appeals that adjudicates criminal cases also has
come to the same conclusion. See, e.g., United States v. Rivera-Carrasquillo, 933 F.3d
33, 47 (1st Cir. 2019) (“The government bears the burden of proving harmlessness.”);
United States v. Groysman, 766 F.3d 147, 155 (2d Cir. 2014) (“With respect to harmless-
error analysis, the government bears the burden of proof.”); United States v. Franz, 772
F.3d 134, 151 (3d Cir. 2014) (“The government bears the burden of establishing
harmlessness.”); United States v. Garcia-Lagunas, 835 F.3d 479, 488 (4th Cir. 2016)
(“The burden rests on the government, the beneficiary of the error, to show
harmlessness.”); United States v. Gutierrez-Mendez, 752 F.3d 418, 426 (5th Cir. 2014)
(“The government has the burden of establishing harmlessness beyond a reasonable
doubt.”); United States v. Susany, 893 F.3d 364, 368 (6th Cir. 2018) (“The government
bears the burden of proof on harmless error . . . .”); United States v. Robinson, 724 F.3d
878, 888 (7th Cir. 2013) (“The burden of demonstrating harmlessness rests with the
government.”); United States v. Davis, 859 F.3d 592, 597 (8th Cir. 2017) (“The
government bears the burden of proving an error is harmless.”); United States v. Esparza,
791 F.3d 1067, 1074 (9th Cir. 2015) (“The government bears the burden of proving that
the error was harmless beyond a reasonable doubt.”); United States v. Russian, 848 F.3d
1239, 1248 (10th Cir. 2017) (“The government bears the burden of making this
[harmlessness] showing.”); Bester v. Warden, 836 F.3d 1331, 1338 (11th Cir. 2016) (“The
government, not the defendant, bears the burden of establishing that a constitutional error
is harmless.”); United States v. Burnett, 827 F.3d 1108, 1119 (D.C. Cir. 2016) (“The
government bears the burden of proving harmless error.”) (internal citation and quotation
marks omitted).


                            [J-93-2019] [MO: Saylor, C.J.] - 3
       The Majority chooses a different path, opting to provide no standard at all.

Ultimately, the Majority holds that a court may assume the Commonwealth’s burden “in

appropriate cases.” Maj. Op. at 9. The court may conduct a harmless error analysis on

its own initiative, the Majority reasons, pursuant to its “discretionary prerogative.” Id. at

10.   Both the Majority and the Concurrence suggest some understanding that our

appellate courts are expected to glean from today’s decision, pursuant to which jurists will

recognize their sua sponte invocation of harmless error to be an “exception to the ordinary

rule,” id. at 9, one that must be used with caution in response to the “extremely occasional

need,” Conc. Op. at 2 (Donohue, J.), to do the Commonwealth’s job for it. I too am

concerned by the “superficiality” with which harmless error analyses are commonly

conducted. Maj. Op. at 12. But I find no practical limitations here, no standard, no rubric

by which to distinguish an “appropriate” case from an inappropriate one, and no reason

to expect that this purported “exception” to a litigant’s burden will prove to be anything

other than the norm, to the extent that the exception has not swallowed the rule already.

       There is a straightforward path toward mitigating many of the problems that

Appellant Hamlett has brought to our attention—a path grounded in the foundational case

law from which we have departed. We should preserve the burden, in a form that is

recognizable as such.

       The Majority does not discuss much of the jurisprudence underlying this inquiry.

The Majority does not discuss the facts or history of this case, nor the intermediate court’s

application of the law to the facts. See infra Part IV. Aside from a footnote providing

citations to the decisions of this Court that Hamlett specifically challenges, Maj. Op. at 4

n.3, the Majority does not meaningfully confront the precedents at issue. The harmless

error doctrine has a long history; the approach that this Court embraces today is of a more




                            [J-93-2019] [MO: Saylor, C.J.] - 4
recent vintage.   In order to frame the question presented,2 to appreciate Hamlett’s

criticisms of the approach that the Court embraces today, and to articulate the grounds

for my profound disagreement with the Majority, it is necessary to set forth some

background. It is imperative to understand the competing interests at play, to review the

guiding principles of the doctrines at issue, and to consider where our jurisprudence has

brought us and where it will go from here.

                                             I.

       Harmless error often is treated as a routine matter in the law, but we must remain

cognizant of the stakes of the inquiry before us. To the individual appellant whose case

is under review, the importance of the inquiry is immense—a harmless error analysis

often represents the line between an accused’s entitlement to relief and the failure of his

appeal. A finding of harmlessness deals a knockout blow, simultaneously acknowledging

the merit in the appellant’s assertion of legal error while nonetheless informing the

2     The Majority does not quote the question presented. We granted allowance of
appeal on the following question, which we rephrased for clarity:
       Can the tension between the well-settled rule that the Commonwealth bears
       the burden of demonstrating harmless error beyond a reasonable doubt and
       the contradictory principle that an appellate court has the ability to affirm a
       valid judgment or verdict for any reason appearing as of record be
       reconciled? If these conflicting principles must be reconciled in favor of the
       Commonwealth proving harmlessness beyond a reasonable doubt, did the
       Superior Court err in finding harmless error sua sponte?
Commonwealth v. Hamlett, 202 A.3d 45 (Pa. 2019) (per curiam).
       The Majority states that, due to Hamlett’s framing of the appeal, “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.” Maj. Op. at 3 n.2. However,
because this Court rephrased the question presented, this conclusion is somewhat
suspect. Because it is emblematic of certain problems in our jurisprudence, and because
the Majority holds that such analyses may be conducted sua sponte in any event, I believe
that the Superior Court’s present application of the harmless error doctrine warrants at
least brief comment. See infra Part IV.



                            [J-93-2019] [MO: Saylor, C.J.] - 5
appellant that no remedy for that error will be forthcoming. And beyond the individual

case lie important institutional concerns. In Story, we cautioned that “there is the danger

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

constitutional and non-constitutional rules promote.” Story, 383 A.2d at 164. We further

admonished that “courts must be careful in applying the harmless error rule, for if the

violation of a rule is too readily held harmless, the importance and effectiveness of the

rule is denigrated.” Id. This unpleasant side effect not only can dilute and defeat

important rights, but also can undermine the deterrence value of appellate reversal,

demonstrating to future parties and courts that similar errors are inconsequential, and that

scrupulous care need not be taken to avoid them.3 A rule that frequently is broken without

consequence soon becomes no rule at all.

       There is, of course, another side to this coin. It would be unreasonable to demand

perfection throughout the entire course of a criminal prosecution and trial. For that

reason, it is a longstanding tenet of our law that, “although an accused is entitled to a fair

trial, he is not entitled to a perfect one.” Story, 383 A.2d at 164. Modern harmless error

doctrine developed in the early twentieth century as a response to a “widespread and

deep conviction” that appellate review of criminal cases had grown too demanding, and

that appellate courts had become “‘impregnable citadels of technicality’” that often

reversed hard-won convictions on the basis of trivial irregularities. Kotteakos v. United

States, 328 U.S. 750, 759 (1946) (quoting Marcus A. Kavanagh, Improvement of

3      See Hon. Harry T. Edwards, To Err Is Human, But Not Always Harmless: When
Should Legal Error Be Tolerated?, 70 N.Y.U. L. REV. 1167, 1170 (1996) (hereinafter
“Edwards”) (“When we hold errors harmless, the rights of individuals, both constitutional
and otherwise, go unenforced. Moreover, the deterrent force of a reversal remains unfelt
by those who caused the error. In his seminal book on harmless error, entitled The Riddle
of Harmless Error, the late Justice Roger Traynor aptly observed that ‘[i]n the long run
there would be a closer guard against error at the trial, if appellate courts were alert to
reverse, in case of doubt, for error that could have contaminated the judgment.’”) (quoting
ROGER J. TRAYNOR, THE RIDDLE OF HARMLESS ERROR 23 (1970)) (footnotes omitted).


                             [J-93-2019] [MO: Saylor, C.J.] - 6
Administration of Criminal Justice by Exercise of Judicial Power, 11 A.B.A.J. 217, 222

(1925)). Undoubtedly, it is inefficient to order the repetition of an entire trial because of

an immaterial error that could not possibly have affected the outcome.            Thus, the

“harmless error rule can save the time, effort and expense of unnecessary retrials where

the defendant has not been prejudiced by an error.” Story, 383 A.2d at 164. But because

the individual and institutional stakes are high, a balance must be struck: the rule must

aim to “save the good in harmless-error practices while avoiding the bad, so far as

possible.” Chapman, 386 U.S. at 23.

       Both the Supreme Court of the United States and this Court historically struck that

balance by constraining the harmless error doctrine with two fundamental rules. First,

before an error may be deemed harmless, “the court must be able to declare a belief that

it was harmless beyond a reasonable doubt.” Davis, 305 A.2d at 719 (quoting Chapman,

386 U.S. at 24).      “The second general precept” is that “the burden is on the

Commonwealth to establish that the error was harmless.” Id. at 719; see Chapman, 386

U.S. at 24; Story, 383 A.2d at 162 n.11. The beyond-a-reasonable-doubt standard is

commensurate with the prosecution’s burden at trial, and it would make little sense for an

appellate court to apply a lesser standard to the harmlessness inquiry. Story, 383 A.2d

at 162. Moreover, this Court has explained, the beyond-a-reasonable-doubt standard

reflects the prudent belief that “it is far worse to conclude incorrectly that the error was

harmless than it is to conclude incorrectly that the error was reversible.” Davis, 305 A.2d

at 719.

       It is the “second general precept” of harmless error jurisprudence that is on the

chopping block today. Davis, 305 A.2d at 719. Fundamentally, the purpose of assigning

the burden to the prosecution is to minimize the potential for unfairness to the appellant,

for it is the prosecution that benefits from the finding of harmlessness. The Supreme




                             [J-93-2019] [MO: Saylor, C.J.] - 7
Court of the United States has explained that trial error “casts on someone other than the

person prejudiced by it a burden to show that it was harmless.” Chapman, 386 U.S. at

24. “It is for that reason that the original common-law harmless-error rule put the burden

on the beneficiary of the error either to prove that there was no injury or to suffer a reversal

of his erroneously obtained judgment.”        Id.   Although there are additional practical

challenges in the application of the doctrine, these two essential safeguards—the

governing standard and the assignment of the burden—maintain the relative balance in

the competing interests that underlie harmless error, and restrain the doctrine from

embracing too much of “the bad” about which Chapman warned us.

       In the past two decades, however, this Court began to distort this balance, tipping

the scales in favor of the prosecution. In Mitchell, a capital direct appeal, this Court

agreed with the appellant that the trial court had erred in permitting the prosecutor to

impeach the appellant’s testimony at trial by reference to his exercise of his right to remain

silent. The Court proceeded to a harmlessness inquiry. In a footnote that ultimately would

engender the so-called “tension” in our jurisprudence that we confront today, this Court

stated:

       Inexplicably, in this case the Commonwealth offers no alternative argument
       that the error was harmless, as it simply argues that no error occurred. We
       remind the Commonwealth that the burden of establishing harmless error
       rests squarely upon its shoulders. Story, 383 A.2d at 162 n.11. Despite
       this lapse by the Commonwealth, we are not without advocacy on this issue
       as the question of harmless error was directly raised and addressed by
       Appellant. Jurisprudentially, we can affirm the action of the court below on
       other grounds. Bearoff v. Bearoff Bros., Inc., 327 A.2d 72, 76 (Pa. 1974).


Mitchell, 839 A.2d at 215 n.11(citation modified).

       Although the Mitchell footnote is brief, there is much to unpack in it. It is evident

that sua sponte invocation of harmless error was not commonplace at the time, as

demonstrated by this Court’s scolding of the Commonwealth for its “lapse” in failing to



                             [J-93-2019] [MO: Saylor, C.J.] - 8
carry its burden—an oversight that this Court found “inexplicable.” Nonetheless, with a

touch of judicial sleight of hand, this Court escaped the suggestion that it had raised the

issue sua sponte at all, capitalizing upon the appellant’s foresight to have argued that the

error was not harmless, and proceeding then to deem that sufficient “advocacy” to decide

the issue. In one sentence, this Court flipped the longstanding burden on its head. The

Commonwealth wholly failed to address, let alone meet, its burden; the appellant not only

met his own burden to prove error, but went above and beyond to preempt the

harmlessness argument that the appellant anticipated but which the Commonwealth itself

never advanced.     As a reward for his diligence, this Court held that the appellant

effectively had satisfied his opponent’s burden. It appears that the appellant would have

been better served by less punctilious advocacy. Finally, without any reasoned analysis

or discussion, this Court cited a single civil case referring to the right-for-any-reason

doctrine, ostensibly as a justification for its decision to engage in harmless error analysis

despite the Commonwealth’s failure to litigate the matter at all. This Court did not

acknowledge that its approach facially conflicts with the universal understanding of a

“burden” in the law as an obligation upon a party to prove the claim, or else to suffer

defeat.

       Mitchell and its progeny embody the dangers of bad precedent. As sometimes

happens, what began as merely an underdeveloped excuse for an unsound decision soon

became the norm. In Commonwealth v. Moore, 937 A.2d 1062 (Pa. 2007), this Court

again confronted an error as to which the Commonwealth had failed to advance a

harmlessness argument. Citing Mitchell, this Court again paid lip service to the waning

premise that the burden to prove harmless error falls upon the Commonwealth. Yet, the

Court again invoked the right-for-any-reason doctrine as a basis to overlook the

Commonwealth’s omission. See id. at 1073. Mitchell had metastasized into a line of




                             [J-93-2019] [MO: Saylor, C.J.] - 9
precedent, binding upon this Court and all below, despite its patent but unacknowledged

conflict with Story, Davis, Chapman, and the foundational tenets of harmless error

doctrine. By the time this Court decided Commonwealth v. Allshouse, 36 A.3d 163 (Pa.

2012), Mitchell’s approach was so engrained that the Court started simply citing the right-

for-any-reason doctrine as a justification for sua sponte consideration of harmless error

without even referring to the Commonwealth’s burden as such. See id. at 182 (“It is well

settled that an appellate court has the ability to affirm a valid judgment or verdict for any

reason appearing as of record . . . . This Court may affirm a judgment based on harmless

error even if such an argument is not raised by the parties.”) (citation and internal

quotation marks omitted).

       This Court’s treatment of harmless error grew increasingly casual.                  In

Commonwealth v. Hitcho, 123 A.3d 731 (Pa. 2015), another capital direct appeal, this

Court not only ignored the existence of a burden on the question of harmlessness, but,

unlike earlier cases in this line, glossed over the fact that the Commonwealth had not

advanced a harmlessness argument.4         After spending over a decade with the Mitchell

footnote, it was no longer “inexplicable” that the Commonwealth had failed to carry its

burden; the prosecution now could count on this Court to do the job for it. In Hitcho, this

Court further abbreviated the analysis. The Court not only performed a harmlessness

assessment on the Commonwealth’s behalf, it also declined even to consider a claim of

error. This Court held that “we need not resolve the issue of whether the trial court abused

its discretion in denying Appellant’s motion in limine . . . . Assuming, arguendo, the trial

4       The Commonwealth’s brief in Hitcho made a single, passing reference to harmless
error in the context of one discrete claim, but did not develop an argument on the matter,
and did not refer to the “overwhelming evidence” standard that we would deem dispositive
of a wholly different claim of error. Brief for Commonwealth, Commonwealth v. Hitcho,
691 CAP, at 29 (“Even if [Pa.R.E. 106] was applicable, which it is not, the error would be
harmless error.”). The analysis that I discuss was undertaken by this Court sua sponte.



                            [J-93-2019] [MO: Saylor, C.J.] - 10
court erred, given the overwhelming evidence establishing first-degree murder, we find

any error to be harmless, and thus not warranting relief.” Hitcho, 123 A.3d at 748. Putting

the proverbial cart before the horse, the Court found harmlessness without finding error.5

       Absent any advocacy from the parties on the question, and instead forging ahead

sua sponte, this Court then disregarded that the “overwhelming evidence” variety of

harmless error necessitates that the evidence be uncontradicted—a requirement that

prevents the reviewing court from making questionable assessments of the credibility of

competing evidence from its inherently limited appellate perspective.6 As Story stated:

       The requirement that the “overwhelming” evidence relied upon be
       uncontradicted follows from the principle that an error cannot be harmless
       if “‘honest, fair minded jurors might very well have brought in not guilty
       verdicts.’” Davis, 305 A.2d at 721 (quoting Chapman, 386 U.S. at 18). A
       jury has the duty to weigh the evidence and resolve conflicts therein. E.g.,
       Commonwealth v. Murray, 334 A.2d 255 (Pa. 1975). Unless the evidence

5        We took a similar approach in Allshouse, 36 A.3d at 182. Although we are not the
first court to conduct such an analysis, and certainly will not be the last, this practice also
raises self-evident doctrinal concerns. See Edwards, supra n.3, at 1182 (“Another
troubling aspect of this trend is judicial use of the harmless-error rule to avoid reaching a
difficult issue in a case. Courts sometimes openly decline to decide whether a
defendant’s rights have been violated, instead evading the issue by stating that any error
that might have occurred was harmless. This practice leaves unresolved the question of
whether an error even occurred, thus offering no guidance to trial courts. What may be
an important question of trial error is therefore sidestepped by the application of a doctrine
that itself presupposes the existence of such an error. Nothing suggests that the
harmless-error rule was meant to serve such a purpose.”).
6     For ease of reference, this Court traditionally recognizes three varieties of
harmless error, which we have gleaned from our seminal discussion in Story:
       Harmless error exists if the reviewing court is convinced from the record that
       (1) the error did not prejudice the defendant or the prejudice was de minimis,
       (2) the erroneously admitted evidence was merely cumulative of other
       untainted evidence, or (3) the properly admitted and uncontradicted
       evidence of guilt was so overwhelming and the prejudicial effect of the error
       was so insignificant by comparison that the error could not have contributed
       to the guilty verdict.
Commonwealth v. Petroll, 738 A.2d 993, 1005 (Pa. 1999) (emphasis added).


                            [J-93-2019] [MO: Saylor, C.J.] - 11
       is uncontradicted a fair minded juror may well choose to credit the
       defendant’s, rather than the Commonwealth’s evidence.

       The principle is in accord with the proper function of an appellate court. An
       appellate court is ill equipped to resolve conflicts in the evidence or make
       findings of fact.


Story, 383 A.2d at 167-68 (citations modified).        Although the Hitcho Court quoted

precedent that identified the correct standard, it nonetheless ignored this important

element, and instead expressly rested its “overwhelming evidence” assessment, in part,

upon an appellate credibility finding. The Court concluded that the defendant’s testimony,

which “offered an explanation for his actions to the jury” and, thus, ostensibly contradicted

at least portions of the Commonwealth’s evidence or the inferences derived therefrom,

was “fraught with inconsistencies and based on an unbelievable version of events.”

Hitcho, 123 A.3d at 748. In other words, this Court deemed a (potential) error harmless,

sua sponte, based at least in part upon its own post hoc assessment of the defendant’s

credibility, which the Court somehow gleaned on appeal from a cold record.             Such

disregard for established standards sets a poor example for our courts, and does not

inspire confidence in the soundness of this line of precedent.

       The Mitchell line of cases never overruled our landmark decision in Story, never

disapproved of its progeny, and never disputed the longstanding and well-settled principle

that the burden to prove harmlessness rests with the prosecution. See supra at 2 & n.1.

The cases also never recognized the contradiction—they merely cited the right-for-any-

reason doctrine, then proceeded sua sponte as though the tension were resolved. But

the tension remains. I addressed it directly in dissent in Commonwealth v. Hicks, 156

A.3d 1114, 1158 n.1 (Pa. 2017) (Wecht, J., dissenting), and the Superior Court in this

case quoted my concerns before proceeding sua sponte to address harmlessness. See

Maj. Op. at 2; Commonwealth v. Hamlett, 1172 WDA 2016, slip op. at 28 n.8, 2018 WL




                            [J-93-2019] [MO: Saylor, C.J.] - 12
4327391, at *13 n.8 (Pa. Super. Sept. 11, 2018).7 Hamlett identified the need for this

Court to confront the matter, brought us this important appeal, and has directly framed

this significant problem in our law with a challenge to the conflicting precedent. And so,

here we are.

                                             II.

       The Majority does not concern itself with the soundness of the Mitchell line of

cases, see Maj. Op. at 4 n.3, nor does it address the interests of the accused that are

implicated by harmless error review. Although it rejects various of Hamlett’s arguments,

in a manner that I address seriatim below, the Majority articulates one central conclusion

to explain why sua sponte review for harmless error is permissible, notwithstanding the

Commonwealth’s failure to make any attempt to carry its burden of persuasion: “[t]he

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.” Maj. Op. at 9.

       This is not a satisfactory answer. Whether the verdict to be preserved is “valid” is

precisely the question that a harmless error analysis seeks to answer, and the answer

7      Although my dissent in Hicks expressed skepticism about this facet of our
harmless error jurisprudence, I felt bound there to “adhere to our precedential declaration”
that sua sponte invocation of harmless error is permissible under the Mitchell line of
cases. Hicks, 156 A.3d at 1158 n.1 (Wecht, J., dissenting) (citing Allshouse, 36 A.3d at
182). Upon review of the authorities and Hamlett’s focused, well-developed advocacy, I
am compelled now to take a more exacting view. We should disavow the flawed
precedent that generated the present controversy.
        As the Majority notes, Justice Baer’s concurrence in Hicks also recognized our
precedential conflict, but resolved it in favor of sua sponte invocation of harmless error
via the right-for-any-reason doctrine. Maj. Op. at 3; Hicks, 156 A.3d at 1140 (Baer, J.,
concurring). Because this rationale is duplicative of that of the Mitchell line of cases, and
reflects the same reasoning that the Majority adopts today, I will not separately address
Justice Baer’s comments in Hicks.


                            [J-93-2019] [MO: Saylor, C.J.] - 13
cannot be known before the inquiry is conducted. Sua sponte application of the doctrine

disregards a crucial component of the “underlying substantive principle of law.” It is the

prosecution’s burden to establish harmless error. The court undertaking the analysis sua

sponte is not so much applying the substantive principle as it is applying part of that

principle, and dismissing the inconsistent part. The Majority characterizes the challenged

practice as a straightforward, sua sponte application of the right-for-any-reason doctrine,

but it is more accurately characterized elsewhere by the Majority as an “exception” to the

“ordinary rule,” id., that the Commonwealth bears a burden on the question of whether a

given error was harmless, or instead whether legal error, once identified, warrants relief.

With no discernible standard to constrain the exception, I fail to understand what is left of

the “ordinary rule.”

       Additionally absent from the Majority’s analysis is any recognition of the oft-

repeated reasons that sua sponte decision-making is roundly disfavored in the law. Even

setting aside the express burden applicable in the harmless error context, it is axiomatic

that “[s]ua sponte consideration of issues deprives counsel of the opportunity to brief and

argue the issues and the court of the benefit of counsel’s advocacy.”           Wiegand v.

Wiegand, 337 A.2d 256, 257 (Pa. 1975). Raising and addressing issues sua sponte

“disturbs the process of orderly judicial decision-making by depriving the court of the

benefit of counsel's advocacy, and depriving the litigants the opportunity to brief and

argue the issues.” Johnson v. Lansdale Borough, 146 A.3d 696, 709 (Pa. 2016) (citations

omitted). But beyond mere prudential challenges, and of particular relevance given

Hamlett’s specific argument to this Court, sua sponte decision-making may implicate due

process concerns, to the extent that it deprives litigants of notice and an opportunity to be

heard on potentially dispositive matters. See infra Part II(D). Before delving further into

broader concerns, however, I turn next to the Majority’s various rationales for rejecting




                            [J-93-2019] [MO: Saylor, C.J.] - 14
several of Hamlett’s specific arguments, and the reasons for my disagreements with these

rationales.

       A.     Judicial Economy

       The Majority first invokes principles of judicial economy, noting the “systemic

interest in avoiding costly and unnecessary proceedings before the judiciary” and the

“social costs of retrial, including those of the judicial system at large, jurors, victims, other

witnesses, and the general public.” Maj. Op. at 10. Due to these interests, the Majority

asserts, “[j]udicious recourse to the discretionary prerogative to review for harmless error

may appropriately proceed” sua sponte, when the court deems it appropriate. Id.

       First, the Majority’s justification begs the question inasmuch as it relies upon the

interest in avoiding “unnecessary” retrials, which again is precisely the question that a

harmless error analysis seeks to answer. Through the harmless error doctrine, the parties

litigate, and the court decides, whether it is a “valid verdict,” id. at 9, that the prosecution

seeks to preserve despite an error, such that a retrial becomes “unnecessary.” Id. at 10.

The answer to the question is meant to be provided through the parties’ advocacy—the

Commonwealth’s, specifically—not through judicial intuition.

       Moreover, the Majority refers only to interests that underlie the harmless error

doctrine generally, but which have little relation to the question of the Commonwealth’s

burden. As it concerns the question before us, the typical framing of the interest in judicial

economy is largely beside the point. It is no secret that the harmless error doctrine, at

bottom, is informed significantly by principles of judicial economy. But that interest is in

no way incompatible with the Commonwealth’s advocacy.                   Indeed, requiring the

Commonwealth to carry its burden advances judicial economy in many ways, while sua

sponte consideration of harmless error directly and palpably disserves the interest in

judicial economy. Precisely because it is a highly record-intensive inquiry, harmless error




                             [J-93-2019] [MO: Saylor, C.J.] - 15
analysis is a labor. If it is to be conducted with due rigor, the burden to establish the claim

must fall somewhere. As I explain below, in allowing the Commonwealth’s burden to be

relieved in the appellate court’s discretion, the Majority spares none of the resources of

our trial courts, but allows a heavy workload to fall upon our already-busy appellate courts.

       Setting aside precedent, fairness, important underlying interests, and institutional

concerns, perhaps it is helpful to discuss the reasons that the Commonwealth is better

suited than the appellate court to advocate for harmless error, as a purely practical matter.

Although appellate courts regularly review evidentiary records, we necessarily maintain a

relatively detached relationship with them. When we first open the papers filed in a given

appeal, we have no prior knowledge of the case. We were not in the courtroom at trial,

nor have we observed any witness’ demeanor, nor have we seen the parties’ pre-trial or

post-trial motions, nor have we heard their objections or offers of proof. We and the

record simply are not acquainted. We rely heavily upon the lower courts’ summaries of

the facts and proceedings, and to a lesser extent the parties’ representations, in order to

orient ourselves to the legal questions presented for review. Naturally, those questions

generally require us to consult the record, but we tailor our review to the issues before

us, and we require that the parties provide us with citations to the portions of the record

that contain the pertinent material. See, e.g., Pa.R.A.P. 2119(c) (“If reference is made to

the pleadings, evidence, charge, opinion or order, or any other matter appearing in the

record, the argument must set forth, in immediate connection therewith, or in a footnote

thereto, a reference to the place in the record where the matter referred to appears”). We

require such citation precisely because it is both onerous and inefficient for an appellate

court to embark upon a self-guided tour through an unfamiliar fact record.8

8        Cf. United States v. Hasting, 461 U.S. 499, 516-17 (1983) (Stevens, J., concurring
in the judgment) (“This Court is far too busy to be spending countless hours reviewing
trial transcripts in an effort to determine the likelihood that an error may have affected a



                            [J-93-2019] [MO: Saylor, C.J.] - 16
       Unlike the appellate court, the parties are intimately familiar with the fact record.

They built it. They know how its pieces fit together. The parties were in the courtroom.

They filed the motions. They presented the evidence and questioned the witnesses.

They argued the case to the fact-finder. They studied the materials in preparation for

appeal. It is they who have command of the record, and it is they who can direct the

reviewing court to the portions thereof that support or undercut their respective positions.

Accordingly, it is the Commonwealth, not an appellate court reviewing a cold record

months, years, or even decades later, that is in the best position to establish the

harmlessness of an error. The Commonwealth is well-equipped to identify and draw the

court’s attention to, for instance, the remainder of the uncontradicted evidence asserted

to be overwhelming, or the properly introduced evidence of which the erroneous evidence

was merely cumulative. See supra n.6.

       In the absence of any argument from the Commonwealth, the appellate court is

left in unfamiliar terrain without a guide. In order to render its judgment with any degree

of confidence, the court seeking to establish harmless error on its own initiative must

commence an exacting, systematic, and laborious review of the record with no direction

from the parties. This is plainly a burdensome exercise for any appellate court. See, e.g.,

United States v. Giovannetti, 928 F.2d 225, 226 (7th Cir. 1991) (per curiam) (noting that

sua sponte consideration of harmless error “would place a heavy burden on the reviewing

court, deprived as it would be of the guidance of the parties on the question whether

particular errors were harmless”). This is not a revolutionary observation.




jury’s deliberations. . . . I have spent several hours reviewing the one copy of the trial
transcript that has been filed with the Court. But I have not read all of its 1,013 pages,
and I have read only a few of the 450 pages of the transcript of the suppression hearing.
The task of organizing and digesting the testimony is a formidable one.”).


                            [J-93-2019] [MO: Saylor, C.J.] - 17
       Certainly, in both the right-for-any-reason and harmless error contexts, the interest

in judicial economy often refers to the avoidance of unnecessary retrials—surely a

considerable burden upon our trial courts. See Maj. Op. at 10. But, from the trial court’s

perspective, it does not matter at all whether it is the Commonwealth or the appellate

court that makes the harmlessness showing. If an error is to be deemed harmless, the

end result—affirmance—is the same, and the resources of the trial court are spared to

precisely the same degree regardless of whether the Commonwealth satisfies its burden

or the appellate court shoulders that burden itself. The difference is that, where the

parties litigate the matter and guide the court through the fact record, the analysis can be

completed much more quickly, efficiently, and with greater confidence in the outcome. By

contrast, where the Commonwealth fails to carry its burden, and the appellate court

undertakes a self-directed harmless error analysis, the court must enmire itself in the

record, parse it for any and all potentially relevant details, and thereby expend a significant

amount of the court’s time and resources, at the expense of other cases on its docket.

       There can be no serious argument that it is not at least preferable for the

Commonwealth to provide the reviewing court with meaningful advocacy on a potentially

challenging, highly record-intensive inquiry such as harmless error. It is for this reason

that the crux of Hamlett’s argument regarding judicial economy is that, although “the

practice of sua sponte review for harmless error might hypothetically advance judicial

economy in the trial courts, it does so at the expense of judicial economy in the appellate

courts.” Brief for Hamlett at 38. This is plainly true, but with one caveat. Condoning the

practice of sua sponte review advances judicial economy in the trial court only if we

assume that the Commonwealth, if required, would regularly fail to perform its duty as an

advocate, and that it somehow becomes the appellate court’s role to do the

Commonwealth’s job as an alternative to the consequence that should rightly follow from




                            [J-93-2019] [MO: Saylor, C.J.] - 18
the Commonwealth’s dereliction. The procedure by which a judgment is affirmed on

appeal is of no particular concern to the trial court.

       The Majority’s focus upon judicial economy extends only to the harmless error

doctrine’s standard, general admonitions relating to the costs of retrial. None of that is

inconsistent with the placement of a burden upon the Commonwealth, nor with requiring

the Commonwealth to carry that burden. The Majority criticizes a number of Hamlett’s

arguments as “impugning harmless-error review as such, as distinguished from the sua

sponte aspect.” Maj. Op. at 11 n.9. Yet, a number of the Majority’s “primary lines of

attack,” id., also rely upon principles applicable to harmless error review as such, as

distinguished from the sua sponte aspect.           Avoidance of the “societal costs” of

unnecessary retrials is wholly compatible with the Commonwealth advocating for its

position. The sua sponte component of this jurisprudence has never concerned itself with

the fact that the appellate court is doing the actual work of conducting self-guided

harmless error analyses, which speaks volumes about the law’s concern for judicial

economy. By contrast, if the Commonwealth advocates for its position, every step of the

appellate process becomes more efficient.

       The most reasonable solution to these problems, from a judicial economy

perspective, is that the Commonwealth must be made to carry its burden. If we begin to

enforce the burden, the Commonwealth will learn to carry it again.          It was once

“inexplicable” for the Commonwealth to so fail. Mitchell, 839 A.2d at 215 n.11. Opting

instead to find harmlessness sua sponte changes nothing in the trial courts, but shifts a

heavy workload onto our busy appellate courts. It saves no precious judicial resources.

It expends them.      The entire exercise spares the effort of one party alone—the

Commonwealth.       Sua sponte harmless error review is not judicial economy.        It is

prosecutorial economy.




                            [J-93-2019] [MO: Saylor, C.J.] - 19
       B.     Right-For-Any-Reason

       I would prefer not to dwell at great length upon the right-for-any-reason doctrine,

nor upon its conflation with the harmless error doctrine, because I think it plain that the

two doctrines are indeed distinct, that they have distinct purposes, and that there is a

reason that they were given distinct names in the first place. I also believe that the sua

sponte practice that the Majority approves is not actually an application of the right-for-

any-reason doctrine, but rather that it is simply an attempt to apply harmless error

principles on the court’s own initiative, with the Commonwealth’s burden conspicuously

absent from the analysis. But the ostensible connection between these doctrines is the

jurisprudential anchor of the Majority’s approach, so it is worth considering the ways in

which harmless error and the right-for-any-reason doctrine converge and diverge.

       To separate the right-for-any-reason doctrine from harmless error, Hamlett

proposes a taxonomy to this Court, suggesting that trial error be classified as either error

of “admission,” “use,” or “rationale.” Brief for Hamlett at 17-23. He argues that only errors

in rationale are amenable to disposition under the right-for-any-reason doctrine, because,

in such a circumstance, the admission or use of the evidence was not erroneous; the only

deficiency was the trial court’s reason for a correct action. But if the admission or use of

the evidence had no valid justification at all, then it is truly erroneous, and the error may

find no safe harbor under the right-for-any-reason doctrine.

       The Majority rejects Hamlett’s framework, opining that “the selection of an incorrect

basis for admitting evidence can be viewed as employment of an erroneous rationale,”

and, thus, that Hamlett’s categories are “not mutually exclusive.”         Maj. Op. at 11.

Rejecting Hamlett’s lexicon, however, does not result inexorably in a functional

equivalence between the harmless error and right-for-any-reason doctrines. I find that

Hamlett’s classification scheme presents a useful exercise, but it merely places a label




                            [J-93-2019] [MO: Saylor, C.J.] - 20
upon elementary right-for-any-reason principles. It is not necessary to the analysis,

because differences between the doctrines abound.

       Of course, an immediate and dispositive distinction is that the harmless error

doctrine always has imposed a burden upon the prosecution, while the right-for-any-

reason doctrine places no parallel burden upon the party seeking its benefit. But that is

not even the most obvious difference. As evidenced by their very names, the doctrines

pose different questions to the court. When an appellate court applies the right-for-any-

reason doctrine, it ultimately finds no reversible error, because the challenged decision

was “right,” for a different reason than was articulated below. The right-for-any-reason

doctrine asks the question: “Was the challenged action erroneous?” Harmless error, by

contrast, is a question of effect—once an error has been found, harmless error doctrine

asks the question: “Did the error change the outcome?”

       The right-for-any-reason doctrine is best conceptualized as allowing for the

identification of an alternative, valid, legal justification for a challenged action. “We have

often stated that where a court makes a correct ruling, order, decision, judgment or

decree, but assigns an erroneous reason for its action, an appellate court will affirm the

action of the court below and assign the proper reason therefor.” Bearoff, 327 A.2d at

76 (emphasis added; capitalization modified). It is self-evident that an “error” is not a

“correct ruling” suitable for disposition under the right-for-any-reason doctrine. Rather,

an error is an error, suitable for analysis under the harmless error doctrine.

       An archetypal example of the right-for-any-reason precept occurs when the trial

court offers a flawed rationale for its decision to admit a challenged piece of evidence, but

the facts nonetheless support the admission of that evidence for a different reason or

pursuant to a different rule. To perform the right-for-any-reason analysis in such a case,

the appellate court merely must assess whether the established evidence of record




                            [J-93-2019] [MO: Saylor, C.J.] - 21
satisfies an existing legal rule—a familiar task for appellate courts. If the facts fit the rule,

then we may conclude that the challenged action was proper, not erroneous. See, e.g.,

In re A.J.R.-H., 188 A.3d 1157, 1176 (Pa. 2018) (“The [right-for-any-reason] doctrine thus

may be applied by a reviewing court if the established facts support a legal conclusion

producing the same outcome.”). If such is an error, it is an error only in form, not in

substance. See Thomas v. Mann, 28 Pa. 520, 522 (Pa. 1857) (“The only error upon the

record is a wrong reason for a right judgment; but, as we review not reasons but

judgments, we find nothing here to correct.”). With harmless error, by contrast, there is

something to correct. There is a legal error that may have impacted the outcome.

       The right-for-any-reason doctrine does not require the appellate court to consider

the effect of an error on the totality of the proceedings. The analysis does not require a

speculative inquiry into the likely impact upon a juror of hearing erroneously admitted

evidence, or an examination of whether the evidence may have strengthened certain

arguments in the eyes of a juror or called others into question, or—ultimately—a

determination that the jury still would have returned a guilty verdict absent the evidence.

These latter inquiries are hallmarks of the challenges underlying harmless error. Where

the right-for-any-reason doctrine is concerned with legal justifications, harmless error is

essentially more of a factual judgment than a legal one—whether, under the facts and

circumstances presented, beyond a reasonable doubt, a jury would have returned the

same verdict regardless of the error.

       Answering the harmlessness question, moreover, poses intractable difficulties

stemming from the inherent limitations of appellate review. Quoting California Chief

Justice Roger Traynor’s famous treatise on harmless error, this Court in Story observed:

       The appellate court is limited to the mute record made below. Many factors
       may affect the probative value of testimony, such as age . . . intelligence,
       experience, occupation, demeanor, or temperament of the witness. A trial
       court or jury before whom witnesses appear is at least in a position to take


                             [J-93-2019] [MO: Saylor, C.J.] - 22
       note of such factors. An appellate court has no way of doing so. It cannot
       know whether a witness answered some questions forthrightly but evaded
       others. It may find an answer convincing and truthful in written form that
       may have sounded unreliable at the time it was given. A wellphrased
       sentence in the record may have seemed rehearsed at trial. A clumsy
       sentence in the record may not convey the ring of truth that attended it when
       the witness groped his way to its articulation. What clues are there in cold
       print to indicate where the truth lies? What clues are there to indicate where
       the half-truth lies?


Story, 383 A.2d at 168 (quoting ROGER J. TRAYNOR, THE RIDDLE OF HARMLESS ERROR 20-

21 (1970)).

       This Court has developed certain guidelines in order to make our journey into these

unfamiliar waters more comfortable—such as requiring that harmlessness be predicated

upon uncontradicted evidence so as to avoid the morass of appellate credibility

determinations. See Story, 383 A.2d at 166-68. This Court also has overlooked those

guidelines in our sua sponte pursuit of the doctrine. See Hitcho, 123 A.3d at 748. The

truth of the matter is that harmless error analysis remains a challenging task in a

significant number of cases. The endeavor is unavoidably speculative. The doctrine asks

appellate judges to evaluate and assess the persuasiveness of the entirety of an

evidentiary record, to run a hypothetical trial in our minds sanitized of the legal error before

us, while setting aside our own suspicions as to the guilt or innocence of the accused

(which may indeed be influenced by the error at issue), and to opine conclusively as to

how a hypothetical jury would have viewed a hypothetical body of evidence. 9 This is

9      Although such analyses pose unique difficulties on appeal, it would be an
overstatement, of course, to suggest that appellate courts are wholly incapable of
rendering judgments about the potential impact of certain evidence upon the fact-finder,
or the ultimate likelihood that a different result would have obtained. Indeed, in modern
post-Chapman jurisprudence, harmless-error-type inquiries have been engrafted upon a
number of substantive legal rules, such as the standard for demonstrating prejudice in
the ineffectiveness of counsel context, and the test for materiality under Brady v.
Maryland, 373 U.S. 83 (1963). See Edwards, supra n.3, at 1178 (conceptualizing the
development of these standards as an outgrowth of the harmless error rule). For better



                             [J-93-2019] [MO: Saylor, C.J.] - 23
palpably dissimilar from many of the purely legal considerations that might be resolved

easily and fairly under the right-for-any-reason doctrine.        Fortunately, although the

harmlessness inquiry can be challenging, the court need not go it alone. The court can

be aided greatly by the parties’ advocacy, see supra Part II(A), and, in particular, by an

effort from the Commonwealth, as the beneficiary of the error, to demonstrate that the

error could not have contributed to the verdict.

       The Majority may dismiss Hamlett, or me, as “impugning harmless-error review as

such, as distinguished from the sua sponte aspect.” Maj. Op. at 11 n.9. But by these

observations, I mean to reveal disparities between the doctrines before us, to the extent

that those disparities tend to undercut the Majority’s thinly supported assertion that one

doctrine may be viewed as a mere application of the other.10 Given the specific challenge


or worse, this has become a familiar exercise. A critical difference in the Brady and
ineffectiveness areas, however, is that the burden to make the showing is placed upon
the appellant instead of the prosecution, and this Court, at least, strictly requires the
appellant to carry that burden, and will not hesitate to deem the appellant’s claim waived
if it lacks sufficient development. I further address concerns regarding issue-preservation,
development, and waiver below. See infra at 25-27; 38-40.
10      Although it favorably cites a Georgia decision, the Majority acknowledges that its
approach—collapsing the harmless error rule into the right-for-any-reason doctrine and
approving limitless sua sponte invocation of either—is not common among American
jurisdictions. Maj. Op. at 9 n.6. The Majority deems all other approaches to sua sponte
consideration of harmless error to be simply a “close cousin” of its own approach, but it
does not elaborate upon this assertion. I question the degree of relation.
       For its recourse to Georgia law, the Majority invokes Jones v. State, 802 S.E.2d
234, 237 (Ga. 2017) (admission of prior bad acts evidence “was harmless as to
appellant’s conviction and sentence . . . and so the Court of Appeals’ judgment is affirmed
as right for any reason”); see Maj. Op. at 9. However, the same tension that the Mitchell
footnote has engendered in Pennsylvania appears to afflict Georgia’s jurisprudence in
precisely the same way. The Jones Court did not refer to the harmless error rule as
imposing a “burden” at all, despite the Georgia Supreme Court’s recognition of that
burden with respect to evidentiary errors like that found in Jones, even in cases decided
in the same year as Jones. See Bozzie v. State, 808 S.E.2d 671, 677 (Ga. 2017) (“For
nonconstitutional harmless error, the State has the burden to show that it was highly
probable that the error did not contribute to the verdict.”). Although the Majority



                            [J-93-2019] [MO: Saylor, C.J.] - 24
before this Court—which reveals significant difficulties with the sua sponte aspect of the

challenged jurisprudence on multiple fronts, and which suggests a simple solution—the

remainder of one’s opinions about the balance of the harmless error rule would seem to

be of little consequence.

      Perhaps some additional insight into the Majority’s reasoning may be gleaned from

its summary of the Commonwealth’s arguments, inasmuch as the Majority “agree[s] with

the Commonwealth in all material respects.” Maj. Op. at 8. Accordingly, one may

presume that the Majority endorses at least all of the Commonwealth’s arguments that it

summarizes in its Opinion. Concerning the absence of the Commonwealth’s burden

when the court pursues harmless error sua sponte under the right-for-any-reason

doctrine, the Majority favorably quotes the Commonwealth’s reliance upon 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.” Id. (citing

Brief for Commonwealth at 42) (emphasis in original). Hamlett’s position, the Majority

and the Commonwealth fret, might “upend this conventional approach to issue

preservation by imposing waiver, or its functional equivalent, on the government as

appellee.” Id. (citing Brief for Commonwealth at 7, 42).

      First of all, it is curious that the Majority would deem “issue preservation

obligations” to be a “core precept” of the right-for-any-reason doctrine, for it apparently

does not view the prosecution’s burden of persuasion to be a “core precept” of the

harmless error doctrine. The prosecution’s burden is indeed a “core precept” of harmless

error; in fact, it is the “second general precept” underlying the doctrine. Davis, 305 A.2d

at 719; see supra at 7; see also supra n.1. When harmless error “functions as the


establishes that we are not alone in rendering incompatible pronouncements on harmless
error, nothing in Jones helps to reconcile the incongruity between unfettered sua sponte
review and the recognition of a burden imposed upon a party.


                            [J-93-2019] [MO: Saylor, C.J.] - 25
underlying substantive principle of law,” Maj. Op. at 9, to which the court resorts through

its discretionary prerogative to employ the “right-for-any-reason precept,” id., what

happens to the general precepts of the harmless error doctrine? It seems that a core

precept of the harmless error doctrine is jettisoned, yet what the Commonwealth simply

insists is a “core precept” of the right-for-any-reason doctrine mysteriously remains.

       In any event, the Commonwealth’s focus upon the absence of an issue-

preservation obligation upon appellees is a non sequitur.         Maj. Op. at 8; Brief for

Commonwealth at 42, 46. We have never suggested that the Commonwealth’s burden

is one of issue-preservation; the Commonwealth need not raise the issue before the trial

court in the first instance on pain of waiver. Its burden is one of persuasion, and may be

satisfied by offering argument to the reviewing court for the first time on appeal. The

absence of an issue-preservation burden upon appellees, thus, is irrelevant. The point

would be roughly equivalent to suggesting that a court may research, litigate, and rule

upon a claim that the appellant fails to assert in its brief, simply because the appellant

preserved an objection and included the issue in its Pa.R.A.P. 1925(b) statement. Issue-

preservation is beside the point.

       We speak of a burden of persuasion. Even if one assumes that it would be absurd

or unreasonable to impose an issue-preservation burden upon the Commonwealth as to

the harmlessness question, the suggestion of the Commonwealth’s “waiver” would not

follow from failure to preserve an issue. A finding of waiver is not a ludicrous response

to an observation that a litigant has failed to develop advocacy on a question as to which

it bears the burden. Even guiding federal jurisprudence, to which the Majority adverts but

does not discuss, recognizes the government’s failure to advocate as precisely this sort

of “waiver.” Giovannetti, 928 F.2d at 226; see infra at 38-40; but see Maj. Op. at 10 n.7.

The point that the Majority appears not to appreciate is that we will enforce an appellant’s




                            [J-93-2019] [MO: Saylor, C.J.] - 26
“waiver” for failure to develop a claim upon which the appellant bears the burden of

persuasion, but we are appreciably hesitant to impose any consequence whatsoever

upon the Commonwealth’s identical failure, or even to acknowledge it as such. We have

hesitated so long that a “tension” with fundamental principles has arisen in our

jurisprudence, which we now have been asked to confront and to resolve.

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

       After its diversion into issue-preservation concerns, the Majority next favorably

quotes a set of excuses that the Commonwealth provides as to why it is onerous for it to

carry its burden of persuasion—a point that strikes me less as concerning the right-for-

any-reason doctrine and more as an argument in favor of overruling Story, but I digress.

The Majority summarizes the Commonwealth’s assertion 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.” Id. (citing Brief

for Commonwealth at 43, 50). The Commonwealth, and by extension the Majority, seems

to question whether our courts are capable of effectively weighing a legal argument that

is followed by an alternative analysis. I am not so skeptical of our appellate jurists’

abilities. Able lawyers themselves, I am confident that they can identify and recognize

the purpose of an alternative argument. There is no reason to believe that courts will

suddenly begin to overlook meritorious legal arguments because the Commonwealth also

argues, in the alternative, that the asserted error was harmless. As for word-count

limitations, we do not allow such requirements to serve as an excuse for any other litigant

to fail to advocate for his or her position, and they manage to do so even in highly complex

cases. And, of course, if the Commonwealth fears that presenting arguments to the court

will cause it to expend the 14,000 words allotted to it, it remains free to seek the court’s




                            [J-93-2019] [MO: Saylor, C.J.] - 27
leave for an exception.11 I am further certain that our procedural rules could respond to

any systemic concerns that such advocacy may present.            Pointing to word-count

limitations is little more persuasive than would be an assertion that we must have due

regard for circumstances in which the Commonwealth’s dog eats its homework.

      The right-for-any-reason and harmless error doctrines may ultimately serve similar

ends—affirmance—but they are not the same doctrine. In the Majority’s conflation of

them, the obligation of the Commonwealth to advocate for its position has gone missing.

The Majority asserts that what it describes is an invocation of the “right-for-any-reason

precept” to apply the harmless error doctrine as the “underlying substantive principle of

law,” Maj. Op. at 9, but I fail to understand why the “second general precept” of the

harmless error doctrine, Davis, 305 A.2d at 719, simply disappears from the analysis.

Because core precepts of these doctrines stand in clear tension with one another,

perhaps the analysis is not as straightforward as the Majority suggests.

      C.     Judicial Impartiality

      Hamlett further contends that sua sponte harmlessness findings are in tension with

the fundamental obligation of the judiciary to remain neutral and impartial. He reminds

us that the adversarial process, essential to the American model of criminal justice, has

two central components:     “(1) neutral and passive decision makers and (2) party

presentation of evidence and arguments.” Brief for Hamlett at 38 (quoting Adam A. Milani

& Michael R. Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate

Courts, 69 TENN. L. REV. 245, 272 (2002)). Hamlett argues that the practice of raising

and deciding issues sua sponte, harmless error in particular, stands in tension with the

well-understood role of appellate courts, articulately described by then-Judge Antonin


11     Pa.R.A.P. 2135(a)(1) (“Unless otherwise ordered by an appellate court . . . a
principal brief shall not exceed 14,000 words . . . .”).


                           [J-93-2019] [MO: Saylor, C.J.] - 28
Scalia as bodies that “do not sit as self-directed boards of legal inquiry and research, but

essentially as arbiters of legal questions presented and argued by the parties before

them.” Id. (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)).12 “Put

simply,” Hamlett summarizes, “where the Commonwealth fails to take an adversarial

position on the matter of harmless error, it is not up to the appellate courts to pick up the

slack.”     Id. at 40.   The now-prevailing approach, Hamlett observes, “confers upon

reviewing courts essentially unfettered discretion” in deciding whether to reverse or to

pursue harmless error. Id. at 42. This, in turn, “imperils our jurisprudential ideals of

evenhandedness, predictability, consistency in the development of legal principles,

reliability on judicial decisions, and the actual and perceived integrity of the judicial

process.” Id. at 41.

          The Majority rejects Hamlett’s argument without substantial discussion, adverting

again to principles of judicial economy and the “larger concerns” of the “social costs of

retrial.” Maj. Op. at 10. I believe that those latter interests are largely the responsibility

of the Commonwealth to advance, if it so desires. I also find the perceived neutrality of

the judiciary to be an exceptionally weighty concern. Hamlett’s observations ring true in

many respects. Although there are other issues that a court may raise sua sponte

pursuant to longstanding precedent, I can conjure no other circumstance where a party

has an express and established burden to prove a particular assertion, yet the court may

excuse that burden, take it upon itself, and declare victory for the party who has done

nothing to claim it. Earlier in this opinion, I characterized the finding of harmlessness as

a “knockout blow,” inasmuch as it adversely disposes of the appellant’s claim of error.


12    See also McNeil v. Wisconsin, 501 U.S. 171,181 n.2 (1991) (“What makes a
system adversarial rather than inquisitorial is . . . the presence of a judge who does not
(as an inquisitor does) conduct the factual and legal investigation himself, but instead
decides on the basis of facts and arguments pro and con adduced by the parties.”).


                             [J-93-2019] [MO: Saylor, C.J.] - 29
Supra at 5. But when the court finds harmlessness without being asked or without the

matter being litigated, that final punch comes not from one of the boxers; it is thrown by

the referee. The appellant has proven the existence of an error—the Commonwealth is

on the ropes. Yet, in comes the referee with the harmlessness haymaker, and the

appellant is down for the count. Certainly, no one watching that bout would characterize

the referee as a passive and neutral arbiter.

       At the very least, the continued absence of guidance from this Court as to when

the harmlessness question may or should be raised sua sponte—a problem that persists

through today’s decision—allows for inconsistent application and potentially arbitrary

results. As it stands now, different panels of our Superior Court may take wholly different

approaches. One panel finding an error may observe that the words “harmless error”

appear nowhere in the Commonwealth’s brief, and simply reverse. Another panel may

take that same appeal and same error, and proceed to a harmlessness inquiry sua

sponte. Further, without guidance or argument from the parties, panels undertaking the

inquiry sua sponte may emphasize different aspects of the case, or find something in the

record that others might overlook on their self-guided tour, leading panels to reach very

different conclusions on the question.     The fault for inconsistency in the case law,

however, lies not with the Superior Court. The Commonwealth is not to blame either,

even though the routine absence of its advocacy is the source of many of the identified

ills. The fault lies with this Court, which gradually has eroded the Commonwealth’s

burden, but has left our lower courts without guidelines for sua sponte application of the

doctrine.

       Concern for evenhandedness would appear to be particularly acute in this context,

inasmuch as a finding of harmlessness always redounds to the benefit of the prosecution,

never to the defense. Perhaps this is why a portion of the Commonwealth’s argument




                           [J-93-2019] [MO: Saylor, C.J.] - 30
endorsed by the Majority can glibly suggest 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.”         Maj. Op. at 8 (quoting Brief for

Commonwealth at 27). Naturally the Commonwealth is not particularly concerned; it

stands to lose very little from deficient findings of harmless error. I believe that Hamlett

has identified, and I have discussed, cases in which even this Court has given questions

of harmless error less than the full consideration that they may have deserved. The fact

that the Commonwealth can provide a list of cases that it deems to contain “good” uses

of sua sponte harmless error review, id. (citing Brief for Commonwealth at 27 n.2), does

not remove the potential for arbitrariness and abuse that inheres in the practice. It is

facially suspect that a court is empowered to intervene on behalf of, and to assume the

role of an advocate for, one party but not the other. This may be regarded as a question

of appearance, regardless of whether the resolution of any particular case is driven by

unseemly motivations. Cf. In Interest of McFall, 617 A.2d 707, 711 (Pa. 1992) (“We hold

herein that the impartiality of the court, which is a fundamental prerequisite of a fair trial,

must be deemed compromised by appearance alone, thus eliminating the need for

establishing actual prejudice.”). A truly impartial arbiter requires each party to carry its

own burden.

       D.     Due Process

       The Majority rejects Hamlett’s due process argument in one paragraph, with two

indirect responses. Hamlett develops an intriguing claim. He begins with the most

fundamental command of due process: “that deprivation of life, liberty or property by

adjudication be preceded by notice and opportunity for hearing appropriate to the nature

of the case.” Brief for Hamlett at 30 (quoting Mullane v. Cent. Hanover Bank & Trust Co.,

339 U.S. 306, 313 (1950)). The critical right to be heard “has little reality or worth unless




                            [J-93-2019] [MO: Saylor, C.J.] - 31
one is informed that the matter is pending and can choose for himself whether to appear

or default, acquiesce or contest.” Id. at 31 (quoting Mullane, 339 U.S. at 314). When an

appellate court performs a harmless error analysis sua sponte, after the parties have filed

their briefs, without informing them that the issue will be dispositive of the appeal, and

without providing the appellant with an opportunity to argue against the finding, the

appellate court deprives the appellant of due process. Moreover, such a circumstance

deprives the appellant of the opportunity to be heard by counsel, in further tension with

due process norms. Id. at 33-35. Hamlett reminds us that the “right to be heard would

be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.”

Id. at 34 (quoting Powell v. Alabama, 287 U.S. 45, 68-69 (1932)).

       Notably, unlike the United States Constitution, the Pennsylvania Constitution

expressly guarantees the right to appeal.13        Accordingly, in this Commonwealth, a

convicted defendant has an express right to appeal his judgment of sentence, and has a

right to due process, which, at a minimum, contemplates notice and an opportunity to be

heard before the disposition of a matter in which his life or liberty is at stake. At least in

this context,14 merely combining a few fundamental propositions of law reveals that

Hamlett’s suggestion is compelling.

13     See PA. CONST. art. V, § 9 (“There shall be a right of appeal in all cases to a court
of record from a court not of record; and there shall also be a right of appeal from a court
of record or from an administrative agency to a court of record or to an appellate court,
the selection of such court to be as provided by law; and there shall be such other rights
of appeal as may be provided by law.”).
14     The suggestion that sua sponte decision-making may raise due process concerns
is not unheard of in Pennsylvania law, nor in broader legal scholarship. See Fallaro v.
Yeager, 528 A.2d 222, 224 (Pa. Super. 1987) (“Due process requires that the litigants
receive notice of the issues before the court and an opportunity to present their case in
relation to those issues. It is even more e[g]regious an error when the lack of notice,
through variance from the pleadings, is the court’s doing. For when the issue is first stated
only in the court’s resolution of it, the unsuspecting party has no opportunity during the
proceedings to voice his objections or match his case to the altered issue.”) (quoting In



                            [J-93-2019] [MO: Saylor, C.J.] - 32
       The Majority gives two reasons for rejecting Hamlett’s position, neither of which

responds directly to Hamlett’s constitutional grievance. First, the Majority concludes that

sua sponte consideration of harmless error does not deprive an appellant of due process

because, if this were the case, then the federal statute and rule that provide for harmless

error review would be “patently unconstitutional as applied to their authorization of

harmless-error review by the federal appellate courts acting of their own accord.” Maj.

Op. at 10-11. Although this is a worthy matter to ponder, it is ultimately beside the point,

for the constitutionality of federal practice is not the question here, and, in any event, the

right to appeal is not enshrined in the federal Constitution, as it is in ours. Supra n.13.

Regardless, as the Majority seems to acknowledge, recognizing a due process

component of the procedure by which harmlessness is determined would not necessarily

render the federal enactments facially unconstitutional, inasmuch as the Majority refers

to as-applied challenges. Perhaps unbounded discretion to resort to harmless error sua

sponte is also problematic in federal court. See infra Part III. We are not called upon to

so decide; it is Pennsylvania law that is before us today.          Because the Majority’s

observation does not substantively respond to Hamlett’s contention regarding the

contravention of due process norms, I am uncertain as to why it should dispose of

anything here.

       The Majority provides one additional reason to dispense with Hamlett’s due

process argument.      The Majority states: “In cases in which harmlessness may be a

Interest of M.B., 514 A.2d 599, 601 (Pa. Super. 1986), aff’d, 538 A.2d 495 (Pa. 1988));
see generally Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive
Litigants of an Opportunity to Be Heard, 39 S.D. L. REV. 1253 (2002).
        Hamlett’s invocation of due process also is echoed by the only amicus curiae
participating in this appeal. See Brief for Amicus Curiae Pennsylvania Association of
Criminal Defense Lawyers at 4-12 (arguing that sua sponte findings of harmless error
deprive the appellant of the right to counsel and the due process right to notice and an
opportunity to be heard).


                            [J-93-2019] [MO: Saylor, C.J.] - 33
factor . . . 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.” Maj.

Op. at 11. This point likewise fails to respond directly to Hamlett’s grievance, but it is also

highly problematic for at least three additional reasons.

       First, this is nothing more than improper burden-shifting. The Majority seems to

be giving standing instructions to defense attorneys that, if they wish to represent their

clients “ably,” perhaps effectively, they had better argue against harmlessness as a matter

of course, lest the Commonwealth fail to meet its burden and the appellate court choose

to tag itself in. This strikes me as no different than inverting the Commonwealth’s burden

and placing it upon defense counsel. The Majority cautions against the right-for-any-

reason doctrine imposing a “high barrier to reversal,” id. at 11, but it imposes ever more

hurdles to relief. Where once the Commonwealth had a burden to establish harmless

error, now the Majority expects “able” defense counsel to anticipate that the

Commonwealth will fail to advocate for its position, and it instructs defense counsel, on

counsel’s own initiative, to expend additional resources to rebut an argument that has not

yet been made, as to which the Commonwealth nominally has the burden of persuasion

and the defense accordingly should stand in a responsive posture, so as to persuade the

court that the substantive legal error, which defense counsel will have just proven on the

merits, is worthy of relief—all of this depending, of course, upon whether the court

employs its discretion to consider harmless error at all. The Majority instructs defense

attorneys not only to satisfy their own burdens to prove legal error, but also to rebut, in

advance, the argument that the Commonwealth might or might not choose to make, and

that the court might or might not choose to undertake. The Majority not only shuffles the

responsibility for the doctrine over to defense counsel, it asks defense counsel to go first.




                            [J-93-2019] [MO: Saylor, C.J.] - 34
Without knowing what the Commonwealth would argue, or if it will argue, counsel filing

the principal brief for the appellant can offer only speculative defenses to hypothetical

arguments about harmless error.

       Is the Commonwealth not an “able” advocate for its own position?

       Second, the Majority’s comment on the duties of able defense counsel arises in

the context of a due process claim regarding the deprivation of notice and an opportunity

to be heard on a critical matter. To my knowledge, due process jurisprudence has never

placed the onus upon the individual subject to the deprivation to anticipate such

deprivation and launch a prophylactic challenge thereto. To the contrary, it is inherent in

the concept of “notice” that the individual is to be provided with notice of adverse action;

he is not expected to divine and preempt it. See, e.g., Mullane, 339 U.S. at 314 (“An

elementary and fundamental requirement of due process in any proceeding which is to

be accorded finality is notice reasonably calculated, under all the circumstances, to

apprise interested parties of the pendency of the action and afford them an opportunity to

present their objections.”) (emphasis added).

       Third, the Majority’s suggestion to able defense counsel overlooks our own

precedent. In the Mitchell footnote, itself—the beginning of this line of cases that has

usurped Story—this Court used an able defense attorney’s proactive advocacy as a

substitute for the Commonwealth’s burden, and went so far as to suggest that our

consideration of harmless error therefore was not even an action taken sua sponte. See

Mitchell, 839 A.2d at 215 n.11; supra at 8. We then overlooked the Commonwealth’s

dereliction, and ruled against the appellant.     Today’s Majority does not suggest its

disapproval of the Mitchell footnote, and indeed it directly embraces the legal approach

that Mitchell pioneered, or clumsily engrafted upon our case law. Against the backdrop

of the precedent challenged in the very case before us, the Majority’s suggestion that able




                            [J-93-2019] [MO: Saylor, C.J.] - 35
defense counsel should anticipate and argue against harmless error strikes me as a cruel

sort of irony.

       The Majority speaks of what it deems to be the current state of Pennsylvania law,

and lauds its “due and appropriate regard for defendants’ substantive rights.” Maj. Op. at

6-7. I see due and appropriate regard in Story. I do not find it in the Mitchell footnote, or

in Hitcho. I see a credible assertion of a substantive constitutional right in this case, which

the Majority dodges with arguments that do not respond to the deprivation that both

Hamlett and amicus have identified and placed squarely within this Court’s view. I do not

doubt that the law on this question can reflect a better balance between “the promotion

of judicial economy” and the “due and appropriate regard for defendants’ substantive

rights.” Maj. Op. at 7. The law can require the Commonwealth to advocate for the

Commonwealth’s position, can demand that the defense be given notice and an

opportunity to respond, and can tell the court to simply adjudicate rather than attempt to

play judge, prosecutor, and defense counsel all at once.

       Harmless error is often the line between a new trial and many years in prison.

Where the stakes are such, it is only fair to provide the interested party with notice that

the issue is under consideration, and with an opportunity to speak on the matter through

counsel. Regardless of whether the deprivation of that notice and opportunity constitutes

a due process violation, it certainly is less than a completely fair practice. The Majority

seems to recognize as much, at least by implication. See Maj. Op. at 12 (suggesting that

a court considering harmlessness sua sponte in “close cases” may order supplemental

briefing in order to “enhance fairness to the defendant”). Every defendant should be

entitled to fairness; fairness should not need to be “enhanced” in any particular case. The

way to encourage evenhanded treatment is to set a consistent standard and then apply

it rigorously. Due process or not, that is simply a matter of good judicial practice.




                            [J-93-2019] [MO: Saylor, C.J.] - 36
                                              III.

       All participants here—the parties, the Majority, the Concurrence, and myself—

have made some references to federal harmless error practice. Both the Majority and the

Concurrence refer to the standard for sua sponte consideration of harmless error outlined

in the Seventh Circuit’s oft-cited, per curiam decision in Giovannetti, 928 F.2d 225, though

they do not discuss its details. See Maj. Op. at 12 n.10; Conc. Op. at 2 (Donohue, J.).

Giovannetti also appears in the advocacy of the parties.            Accordingly, it is worth

considering the legal analysis to which the parties, the Majority, and the Concurrence all

refer, alongside a recognition of the ways in which Pennsylvania jurisprudence differs

from its federal counterpart on matters of harmless error.

       Federal criminal law provides for harmless error analysis by statute and rule,

neither of which have a corollary in Pennsylvania criminal law. Both the federal statute

and rule direct a reviewing court, in mandatory language, to disregard any error that does

not affect the “substantial rights” of a party. Brief for Hamlett at 26-27 & nn. 17-18 (quoting

Fed.R.Crim.P. 52(a) (“Any error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.”); 28 U.S.C. § 2111 (“On the hearing of any

appeal . . . 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.”)). Hamlett is

quick to point out that Pennsylvania has no such statute, and although similar “substantial

rights” provisions appear elsewhere in our procedural rules, there is no such language in

our Rules of Criminal or Appellate Procedure. Id. at 28. Harmless error is judge-made

law in Pennsylvania.

       Also noteworthy, in my view, is that the Supreme Court of the United States has

described the harmless error inquiry under the Federal Rules of Criminal Procedure as

the inverse of the appellant’s burden to prove plain error. See United States v. Olano,




                            [J-93-2019] [MO: Saylor, C.J.] - 37
507 U.S. 725, 734 (1993) (“When the defendant has made a timely objection to an error

and Rule 52(a) [(harmless error)] applies, a court of appeals normally engages in a

specific analysis of the district court record—a so-called ‘harmless error’ inquiry—to

determine whether the error was prejudicial. Rule 52(b) [(plain error)] normally requires

the same kind of inquiry, with one important difference: It is the defendant rather than the

Government who bears the burden of persuasion with respect to prejudice.”). Unlike the

federal judiciary, this Court does not recognize the plain error doctrine; rather, we strictly

adhere to a paradigm of issue-preservation and waiver. See generally Pa.R.A.P. 302. In

this way, federal jurisprudence reflects a symmetry wholly lacking in Pennsylvania law.

       Earlier I quoted the Seventh Circuit’s per curiam decision in Giovannetti for its

observation that conducting a harmless error analysis sua sponte “would place a heavy

burden on the reviewing court.” Giovannetti, 928 F.2d at 226; supra at 17. The court

discussed this labor while rejecting the government’s primary argument:              that the

government’s harmless error arguments, themselves, are “nonwaivable.” Id. at 226. The

court rejected the government’s contention that the mandatory language of Fed.R.Crim.P.

52(a)—errors which do “not affect substantial rights shall be disregarded”—meant “that

even if the government does not argue harmless error, we must search the record—

without any help from the parties—to determine that the errors we find are prejudicial,

before we can reverse.” Id. The court was troubled by the burdens that would fall to the

court instead of the government, and cautioned against the “salami tactics” that the

government could use to hedge against having to argue the issue at all. Id. “Such tactics

would be particularly questionable in a case such as this,” the court emphasized, “where

the defendant goes out of his way to argue that the error of which he complains was

prejudicial, and the government by not responding signals its acquiescence that if there

was error, it indeed was prejudicial.” Id. But see Mitchell, 839 A.2d at 215 n.11.




                            [J-93-2019] [MO: Saylor, C.J.] - 38
       This satisfied the Giovannetti court that “harmless-error arguments can be waived.”

Giovannetti, 928 F.2d at 226.15 It was a “separate question” whether the government’s

waiver “always binds the court.” Id. Thus, looking elsewhere in the federal rules, and

finding a general rule of construction in favor of simplicity, fairness, and the elimination of

unjustifiable expense, the Giovannetti court concluded that its powers were discretionary;

that courts “are not required to scour a lengthy record on our own, with no guidance from

the parties,” but that they may deem themselves “authorized, for the sake of protecting

third-party interests including such systemic interests as the avoidance of unnecessary

court delay, to disregard a harmless error even though through some regrettable

oversight harmlessness is not argued to us.” Id.

       Despite its deep reservations about sua sponte use of the harmless error doctrine,

and despite its refusal to excuse the government’s waiver in the very case before it, the

Giovannetti court nonetheless developed a multifactorial test pursuant to which a court

may “overlook” the government’s waiver and proceed sua sponte. Id. at 227. The

“controlling considerations,” the court explained, are: (1) “the length and complexity of

the record”; (2) “whether the harmlessness of the error or errors found is certain or

debatable”; and (3) “whether a reversal will result in protracted, costly, and ultimately futile

proceedings in the district court.” Id. Applying that standard, the Giovannetti court

ultimately concluded that the case before it did not warrant sua sponte consideration of

harmless error, and it accordingly “decline[d] to relieve the government from the

consequences of its failure to raise the issue of harmless error in its brief on appeal.” Id.




15     But see Maj. Op. at 8 (agreeing with the “the Commonwealth’s view” that Hamlett
“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 appellee”).


                             [J-93-2019] [MO: Saylor, C.J.] - 39
       The federal intermediate courts widely have adopted some version of the

Giovannetti test, but the Supreme Court has never endorsed its rubric. See, e.g., United

States v. Gonzales-Flores, 418 F.3d 1093, 1099-1101 (9th Cir. 2005); United States v.

Rose, 104 F.3d 1408, 1414-15 (1st Cir. 1997); United States v. Pryce, 938 F.2d 1343,

1347-48 (D.C. Cir. 1991) (plurality). I do not find the test persuasive. Even if all of its

factors counsel in favor of sua sponte review, it nonetheless suffers from the same

fundamental deficiency as the Majority’s analysis herein—it allows the court to excuse

and then assume a litigant’s burden of persuasion. Furthermore, the Giovannetti test is

not harmonious with our general approach to waiver in Pennsylvania. Although the

Majority summarily states that Giovannetti’s discretionary approach “is also the case in

the Pennsylvania state courts,” Maj. Op. at 10 n.7, we do not generally instruct our courts

to “overlook” a party’s waiver. Pennsylvania law treats waiver most strictly. Moreover,

there is a degree of internal tension within the Giovannetti test, inasmuch as avoiding a

“protracted” and “costly” retrial would appear to cut in favor of sua sponte review, but such

a retrial likely would be protracted and costly precisely because of the “length” and

“complexity” of the record—a factor that Giovannetti suggests would militate against sua

sponte review. Conversely, a short and simple record seemingly would suggest that sua

sponte review is more manageable, but for precisely that reason, a retrial would be

relatively less burdensome and costly, thus counseling against sua sponte review.

       Regardless, the third Giovannetti factor—avoidance of “costly” but “ultimately

futile” retrials—is merely a reference to the concerns with judicial economy that undergird

the whole doctrine, not a helpful or case-specific consideration. The Majority refers in

passing to the second Giovannetti factor, which I take to be the essence of the test: that

the court should be “certain” that the error is harmless, and should not conduct the inquiry

if it is “debatable.” Giovannetti, 928 F.2d at 227. It remains mysterious to me how one




                            [J-93-2019] [MO: Saylor, C.J.] - 40
could purport to be certain that an error was harmless in the course of “deciding whether

to exercise [the court’s] discretion” to consider the doctrine sua sponte in the first place.

Id. One seemingly must be certain of an error’s harmlessness before even considering

the harmless error doctrine. The Majority suggests that the requirement of “certainty” is

a “more discerning review” than the court might apply if it was not proceeding sua sponte.

Maj. Op. at 12 n.10. I fail to see how elevating the standard to “certainty” is meaningfully

different than applying the beyond-a-reasonable-doubt standard that ordinarily governs

the inquiry. See supra Part I. We will never be “certain” of what twelve jurors would have

done if the trial had been different. The ordinary beyond-a-reasonable-doubt review is

essentially as “discerning” a standard as the law can provide. To demand the court’s

assertion of “certainty” means only that the court must utter a magic word before it

proceeds to do precisely what it would have done otherwise.

         Contrary to what may be the tacit suggestion of either the Majority or the

Concurrence, or both, the Giovannetti test is not fit for this inquiry. A notable feature of

many decisions applying Giovannetti or inquiries like it in other jurisdictions is some

measure of caution in the approach, and some recognition of the potential downsides of

sua sponte review. See, e.g., Gonzales-Flores, 418 F.3d at 1101 (“[W]e are particularly

sensitive to the . . . concerns that sua sponte consideration of harmlessness will often

burden reviewing courts and give the government too many chances to argue harmless

error.    Even more troubling, the practice may unfairly tilt the scales of justice by

authorizing courts to construct the government’s best arguments for it without providing

the defendant with a chance to respond. . . . We therefore conclude that sua sponte

recognition of an error’s harmlessness is appropriate only where the harmlessness of the

error is not reasonably debatable.”) (emphasis in original); People v. Sandoval, 363 P.3d

41, 78 (Cal. 2015) (“Courts in other jurisdictions have warned of ‘the dangers of allowing




                            [J-93-2019] [MO: Saylor, C.J.] - 41
sua sponte consideration of harmlessness,’ including ‘the potential burden on reviewing

courts of searching the record without guidance from the parties and encouragement of

sloppy practice by lawyers.’”) (quoting Gover v. Perry, 698 F.3d 295, 300 (6th Cir. 2012)).

Indeed, in Story, this Court similarly urged care and circumspection in the application of

harmless error analysis, albeit in response to a different set of concerns underlying the

doctrine. See Story, 383 A.2d at 164 (“[C]ourts must be careful in applying the harmless

error rule, for if the violation of a rule is too readily held harmless, the importance and

effectiveness of the rule is denigrated.”).

       The Majority attempts to echo some of this caution, noting that many federal courts

generally find sua sponte harmless error review to be “extraordinary” and that it “should

be disfavored.” Maj. Op. at 12.16 The Majority urges that its approach “not be routinely

or liberally employed to impose a high barrier to reversal of criminal convictions.” Id. at

11. However, the Majority sets no meaningful standard, and it proposes no guardrails to

ameliorate the worst of the dangers of its holding. The Majority does not even attempt to

set forth any specific considerations along the lines of the Giovannetti test, flawed though

that test may be. The Majority seemingly has left us with among the most amorphous of

rules in the nation, leading the Concurrence to note the Majority’s reference to

Giovannetti, and to ponder a “question left unanswered” by the Majority. Conc. Op. at 2

(Donohue, J.).    The question that the Concurrence believes the Majority has left

unanswered is not an insignificant one: “What is the relevant test for determining whether

an error affected the outcome when harmless error is invoked sua sponte?” Id. I wish to




16    Given the Majority’s recognition of the comments of federal courts as a general
admonition that the practice is extraordinary and should be disfavored, Maj. Op. at 12,
the Majority’s observation that federal courts are not “necessarily required to invoke
harmless-error precepts sua sponte,” id. at 10 n.7, is something of an understatement.


                            [J-93-2019] [MO: Saylor, C.J.] - 42
know the answer to this question as well. Unlike the Concurrence, however, the absence

of an answer to that question precludes me from supporting the Majority Opinion.

                                             IV.

      The Majority does not speak to the facts, and alludes only generally to the

substance of the Superior Court’s sua sponte application of the harmless error doctrine

in this case. See supra n.2; Maj. Op. at 1-2, 3 n.2. Although the Majority considers the

substance of the case before us to be outside the scope of the question presented, its

approval of sua sponte review for harmless error suggests that we may consider the

matter irrespective of the parties’ advocacy. I do not feel it improper, then, to exercise

my discretion to consider the very finding of harmless error that precipitated the instant

appeal. But we need not dwell on the matter, for only a small amount of additional detail

reveals significant problems.

      The Majority relates that the Superior Court found error in the admission into

evidence of a video-recorded forensic interview with the victim of the alleged sexual

assault, but the Superior Court deemed the error harmless, sua sponte, because it found

the video to be merely cumulative of properly-admitted evidence in the form of the victim’s

testimony. Maj. Op. at 1-2. To reach that point, however, the Superior Court undertook

a thorough analysis of Pa.R.E. 61317 and related case law, and it found error in the


17    Rule 613 provides, in relevant part:
      (c) Witness’s Prior Consistent Statement to Rehabilitate. Evidence of
      a witness’s prior consistent statement is admissible to rehabilitate the
      witness’s credibility if the opposing party is given an opportunity to cross-
      examine the witness about the statement and the statement is offered to
      rebut an express or implied charge of:
      (1) fabrication, bias, improper influence or motive, or faulty memory and the
      statement was made before that which has been charged existed or arose;
      or



                           [J-93-2019] [MO: Saylor, C.J.] - 43
admission of the video because it contained a prior consistent statement offered merely

for the impermissible purpose of corroboration, and not to rehabilitate the credibility of a

witness who had been impeached. Hamlett, slip op. at 18-27, 2018 WL 4327391, at *8-

12. But when the court turned to harmless error, sua sponte, it held that the error was

harmless because the prior consistent statement was merely cumulative of the victim’s

testimony—the very testimony that it improperly sought to corroborate. Id. at 27-30, 2018

WL 4327391, at *12-14. How can an error be dismissed as merely cumulative, and thus

harmless, when its cumulative nature was the very reason that it was error? The Superior

Court stated that the same testimony that rendered the admission of the video erroneous

also simultaneously made the error of its admission harmless. Surely that cannot suffice

to allow an appellate court to conclude, beyond a reasonable doubt, that the absence of

the error—video corroboration of critical testimony—would not have influenced the jury’s

assessment of the credibility of competing evidence.

       The court further noted that Hamlett testified in his own defense, and it did not

purport to base its conclusion upon overwhelming and uncontradicted evidence of

Hamlett’s guilt, but rather upon the “merely cumulative” variety of harmless error. Yet,

the court saw fit to predict the manner in which the jury would have viewed the credibility

of competing testimony, but for the error. Hamlett understandably asserted that the

impermissible corroboration of the victim’s in-court testimony may have prejudiced him in

the eyes of the jury, inasmuch as the video could tend to bolster the credibility of the

victim’s in-court testimony. The Superior Court disagreed:




       (2) having made a prior inconsistent statement, which the witness has
       denied or explained, and the consistent statement supports the witness’s
       denial or explanation.
Pa.R.E. 613(c).


                            [J-93-2019] [MO: Saylor, C.J.] - 44
       The jur[ors] heard from [the victim] under oath and their fundamental task
       was to weigh the credibility of her story against that of [Hamlett], who
       testified in his own defense. While we agree that our evidentiary rules prefer
       to avoid prior consistent statements, as set forth at length supra, we do not
       believe that the jury would be unduly swayed by the knowledge [the victim]
       previously related the same story. Indeed, the jury presumptively assumed
       that was the case. Thus, while there was no need to buttress her testimony,
       the recorded statement was merely cumulative and harmless beyond a
       reasonable doubt. [Hamlett] is therefore not entitled to a new trial despite
       the error.


Hamlett, slip op. at 30, 2018 WL 4327391, at *14 (citation omitted).

       This was not a sufficient application of any of the harmless error standards

discussed in Story. See supra n.6. The analysis of the cumulative nature of the evidence

was nonresponsive to the nature of the error, and the evidence that otherwise might have

been deemed “overwhelming” was expressly contradicted.            It requires an appellate

credibility determination to say that an error such as this was harmless. To do so, the

appellate court must step into the juror box. The “superficiality” that the Majority rightly

criticizes is present in the very case before us. Maj. Op. at 12. Here, the “right-for-any-

reason doctrine” was indeed “routinely” and “liberally” employed to “impose a high barrier

to reversal” of a criminal conviction. Id. at 11. Hamlett merely points to ills in our

jurisprudence that appear plainly in the pages before us, which continue to echo the flaws

in cases like Mitchell and Hitcho.

       Future courts and litigants will research this question, they will find our decision

today, and they will rely upon it. Particularly given this Court’s admonition that “decisions

are to be read against their facts,” Maloney v. Valley Med. Facilities, Inc., 984 A.2d 478,

489 (Pa. 2009),18 I can only presume that many of those courts and litigants will consult


18      See also Tincher v. Omega Flex, Inc., 104 A.3d 328, 378 (Pa. 2014) (“This case
speaks volumes to the necessity of reading legal rules—especially broad rules—against
their facts and the corollary that judicial pronouncements should employ due modesty.”)
(citing Maloney, 984 A.2d at 489-90).


                            [J-93-2019] [MO: Saylor, C.J.] - 45
the facts of this case and the lower court decision that we affirm, as they struggle to

determine how to apply the law that the Majority expounds today. When they do, they

will find a self-contradictory harmless error analysis, which weighs the credibility of

contradicted evidence, which eschews the safeguards designed precisely to avoid the

defects from which it suffers, and by which this Court apparently is not troubled. They will

see this Court’s approval and perpetuation of an oxymoronic statement of the law: that

the “harmless error doctrine places the burden on the Commonwealth to prove beyond a

reasonable doubt that the error could not have contributed to the verdict,” but that

simultaneously, “our jurisprudence does not require the Commonwealth to raise the

matter” at all. Hamlett, slip op. at 27, 2018 WL 4327391, at *12. Litigants and courts alike

now will offer pro forma quotations from today’s Majority Opinion in their briefs and

opinions, stating that the Commonwealth’s burden to establish harmless error is the

“ordinary rule,” Maj. Op. at 9, before moving immediately to the “exception,” i.e., the

court’s unbounded discretion to ignore the ordinary rule in “appropriate” cases. Id. My

impression would be that the Commonwealth’s burden is gone in all but name, and that

this Court does not plan to police the use of the harmless error doctrine any longer.

                                             V.

       Our harmless error jurisprudence has gone astray because we have eroded one

of its foundations. We have before us the opportunity to rein in the worst of its potential

for misuse. The problems are apparent in our own precedent and in the very case before

us. The Majority sees at least some of these problems, and it criticizes the “superficiality”

with which harmlessness is commonly discerned. Maj. Op. at 12. But today the Majority

declines the opportunity to do anything about it.

       Instead, the Majority places all of these weighty considerations within the sole

discretion of the appellate court, but it offers no test, no set of factors, no interests to




                            [J-93-2019] [MO: Saylor, C.J.] - 46
balance. Indeed, the Majority’s analysis barely acknowledges that a burden exists, or

existed, at all. Its substantive discussion mentions the Commonwealth’s burden once,

which it characterizes as the “ordinary rule” to which discretionary sua sponte invocation

of harmless error serves as an “exception” to be used “in appropriate cases.” Id. at 9.

The Majority cautions the Commonwealth that it “proceeds at its own risk,” id. at 11 n.8,

when it declines to satisfy its burden, but the Majority does not meaningfully discuss the

consequence that might befall the Commonwealth should the court choose not to come

to its aid, nor does the Majority provide guidance as to when a court should decide that

the Commonwealth’s “risk” should become a loss. As far as I can tell from the Majority’s

holding, the appellate court may overlook the Commonwealth’s burden whenever it

wants. That is not a “burden” upon a litigant to establish harmless error. It is a suggestion,

at best; it is an invitation for arbitrariness in adjudication at worst. Our courts need and

deserve more guidance.

       To that end, I reiterate that the most straightforward solution is simply to resuscitate

and then enforce the Commonwealth’s burden of persuasion on appeal.                       The

Commonwealth’s principal brief is the best place to carry its burden, thereby allowing the

appellant to address the Commonwealth’s argument in a reply brief in the ordinary course.

       The Commonwealth is the best and most able advocate for its own position,

particularly as it concerns a highly record-intensive inquiry such as harmless error. Our

appellate courts are busy, and I see no compelling reason why the Commonwealth’s work

should ever fall to the court, for that does not advance judicial economy. Thus, should

the Commonwealth fail to advance a harmless error argument, or should it be expected

to fail so regularly as to require us to place a safety valve in our jurisprudence, I view a

focused briefing procedure to be the only possible solution that would achieve a more fair

balance of harms, relative to the alternative of standardless exercises in sua sponte




                            [J-93-2019] [MO: Saylor, C.J.] - 47
decision-making.19 Generally speaking, some type of briefing procedure tailored to the

harmlessness question could: (1) preserve the Commonwealth’s burden of persuasion;

(2) relieve the court of the weighty and ill-defined question of when it should take up the

matter sua sponte, mitigating the potential for arbitrariness and abuse along with it; and

(3) provide the appellant with notice and an opportunity to respond, thus going a long way

toward resolving the problems identified in this appeal. Whatever our approach, however,

it should be applied uniformly and consistently between cases, not in an ad hoc manner

that depends upon whether the court deems it “appropriate” to “enhance fairness to the

defendant” in a given case. Maj. Op. at 12.

       A supplemental briefing procedure also would have clear downsides, in that it

would result in quite a bit of additional delay for appellants, who often are incarcerated

and eagerly awaiting resolution of their appeals. A significant increase in the volume of

briefs filed also surely would place an additional administrative burden upon our

prothonotaries. Accordingly, the Commonwealth’s principal brief remains the best place

for the argument, and the court should not have to invite the Commonwealth to carry its

burden. To the extent that our courts lack the will to enforce the Commonwealth’s burden

with the threat of reversal, however, I would not exclude the possibility that certain

deficiencies in our practice perhaps could be mitigated by a nuanced and informed

rulemaking process. The Court need only find the will to try.

       I would insist upon a clear and predictable standard that calls for adversarial

presentation of argument to the court. Such a standard would require the party with the

burden to develop the issue, provide the party with the rights with an opportunity to

19     Notably, the Commonwealth presently advocates, in the alternative, for a
supplemental briefing procedure.         Brief for Commonwealth at 54-56.           The
Commonwealth’s alternative argument has not distracted me from analyzing the asserted
merits of its primary legal contentions. See supra at 27; Maj. Op. at 8 (citing Brief for
Commonwealth at 43, 50).


                           [J-93-2019] [MO: Saylor, C.J.] - 48
respond, and call upon the court to neutrally decide which side has the better of it. That

way, the court would not bear the weight of deciding whether to take all of these

responsibilities upon itself, and it could then decide the fate of cases based upon

advocacy, rather than judicial intuition or navel-gazing.

       Because the Majority has a very different vision and arrives at a markedly different

conclusion, I respectfully dissent.




                            [J-93-2019] [MO: Saylor, C.J.] - 49
