Sua Sponte Raising of Harmless Error; Right for Any Reason Doctrine
Com. v. Hamlett, 2018 WL 4327391 (Pa. Super. 2018) (unreported), allocatur granted Feb. 13, 2019, appeal docket 8 WAP 2019
Hamlett was convicted of sexually assaulting a 13 year-old girl after having become friendly with the girl and her family. Specifically, he was convicted of unlawful restraint of a minor, two counts of aggravated indecent assault, simple assault, indecent assault, attempted rape, terroristic threats, and kidnapping of a minor.
At trial, the Commonwealth was permitted to play, over Hamlett’s objection, as a prior consistent statement, a forensic interview between the victim and an unidentified party that took place the day after the assault. Although a prior consistent statement is admissible to rehabilitate a witness who is accused of fabrication or the like, the trial court allowed the statement as corroboration, a basis the Superior Court found to be in error. Nevertheless, the Superior Court found the error to be harmless. As the court explained:
Harmless error exists where: (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 which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and contradicted 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 verdict. Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (quoting Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998)).
Slip Op. at 27.
Here, the court found that the evidence in question was merely cumulative and similar to the testimony the victim offered at trial:
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. See Commonwealth v. Hutchinson, 556 A.2d 370, 372 (Pa. 1989) (“Ordinarily, that one has always said the same thing is subsumed in their testimony and need not be buttressed by evidence of prior consistency[.]”) Thus, while there was no need to buttress her testimony, the recorded statement was merely cumulative and harmless beyond a reasonable doubt. Appellant is therefore not entitled to a new trial despite the error.
Slip Op. at 30.
In so holding, the Superior Court acknowledged 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, and that the Commonwealth had not argued harmless error as a basis for affirmance in this case, but reasoned that the Commonwealth was not required to do so because of the “right for any reason” doctrine:
As our Supreme Court stated in Commonwealth v. Moore, 937 A.2d 1062, 1073 (Pa. 2007):
We recognize that the Commonwealth has the burden of proving beyond a reasonable doubt that the error could not have contributed to the verdict, and that it does not offer a harmless error argument in its brief. Nonetheless, an appellate court may affirm a valid judgment based on any reason appearing as of record, regardless of whether it is raised by the appellee. Id. at 1073 (citations omitted).
We may therefore reach the issue notwithstanding the Commonwealth’s failure to raise it.
Slip Op. at 27-28.
The Superior Court also observed, however, that there is tension between the “right for any reason” doctrine and invoking in it a context in which the Commonwealth has the burden to prove harmless error beyond a reasonable doubt, and that Justice Wecht had commented on that tension in a recent dissent:
In Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017) (OAJC), Justice Wecht’s dissenting opinion observed: In this case, the Commonwealth has never invoked the harmless error doctrine. Ordinarily, this might raise the question of whether the Commonwealth must invoke the doctrine before we may apply it. Generally, I adhere to our precedential declaration that “this Court may affirm a judgment based on harmless error even if such an argument is not raised by the parties.” Commonwealth v. Allshouse, 614 Pa. 229, 36 A.3d 163, 182 (2012). However, there is apparent tension between that principle and the well-settled rule that the “Commonwealth bears the burden of demonstrating harmless error.” Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 521 (2005). Although I believe that we can apply the doctrine without prior invocation, it seems inconsistent to assign to a party a burden of proof that is applicable only in appellate proceedings, while determining simultaneously that the party has satisfied that burden without the party raising or addressing the doctrine in any way. Nonetheless, in light of the Commonwealth’s unequivocal abandonment of the harmless error claim here, any tension between these principles can (and should) be resolved in another case. Id. at 1158 n.1 (Wecht, J., dissenting). Justice Baer also filed a concurring opinion discussing sua sponte invocation of harmless error. Id. at 1139-41 (Baer, concurring).
Slip Op. at 28 n. 8.
Hamlett’s petition for allowance of appeal from the Superior Court’s decision now has provided an opportunity for the Supreme Court to explore the tension, as the court has identified as the sole issue as to which allocatur is granted:
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?
Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.
If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.