stating that the defense cannot, without first challenging at trial and preserving on appeal, complain of trial errors following a guilty verdict
How later courts described this case
- stating that the defense cannot, without first challenging at trial and preserving on appeal, complain of trial errors following a guilty verdict
- stating, “a party may not remain silent and take chances on a verdict and afterwards complain of matters which, if erroneous, the [trial] court would have corrected” (original brackets omitted)
- dissenting opinion of Pomeroy, J., joined by Eagen and O'Brien, JJ.
- prohibiting invocation of the basic-and-fundamental-error doctrine in criminal matters; stating that such matters are more properly resolved through the post-conviction-relief process
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Mr. Justice Pomeroy :
In Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255 , 322 A.2d 114 (1974), the Court, over the dissent of this writer and Mr. Justice Eagen, discarded the doctrine of basic and fundamental error in civil cases involving the failure to object to errors in the charge to the jury. The Court today extends its ban on that doctrine to criminal cases, and not only to erroneous jury instructions but also to errors in the presentation of evidence. This extension comes as no surprise, and indeed was anticipated in the Dilliplaine dissent. Nothing in today’s opinion changes the belief I expressed in Dilliplaine that the discarding of the rule was both “unnecessary and unwise.”
The Court states that the same factors which caused it to abrogate the doctrine in civil cases apply equally in the criminal area, and points out that the rules of criminal procedure, like those of civil procedure, require specific objections. This seems a slender thread to tie these decisions together. While, of course, it is never proper to think of our advocacy system merely as a game to be won or lost according to how well the players know the rules, there is less room for such *424 thinking in the criminal area than anywhere else in the law. In the stress of trial, what lawyer has not erred? But the doctrine of basic and fundamental error in criminal cases was not designed to reward the unprepared and incautious attorney; rather, it was to insure a basically fair trial to every defendant, many of whom, of course, have no choice in the selection of their lawyers.
Although one of the purposes the Court advances for the abolition of the doctrine is aid to the cause of judicial economy, it concludes its discussion of this issue by observing that “. . . abrogating the doctrine in criminal cases may be even more compelling [than in civil cases] since any error that deprives a defendant of due process can more properly be remedied by a claim of ineffective assistance of counsel.” Opinion of the Court, supra, 422. Thus today’s decision virtually invites more post-conviction hearings, to be followed inevitably by more appeals. As the dissenters in Dilliplaine stated: “A truly egregious criminal trial error which we decline to consider on appeal because not preserved below is almost certain to resurface in a post-conviction proceeding in the form of a charge of ineffectiveness of counsel. Considerations of judicial economy argue in favor of dealing with errors of this sort on direct appeal from the judgment of sentence. See, e.g., Commonwealth v. Hallowell, [ 444 Pa. 221, 226-27 , 282 A.2d 327 (1971)].” 457 Pa. at 263-64 . I continue to adhere to those views.
For the reasons set forth in the writer’s opinion in Dilliplaine , partly reiterated above, I respectfully dissent.
Mr. Justice Eagen and Mr. Justice O’Brien join in this dissenting opinion.