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

EASTERN DISTRICT

**COMMONWEALTH OF PENNSYLVANIA,**

**Appellee**

**v.**

**HAROLD WINSTON NOEL, JR.,**

**Appellant :** 

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**: No. 23 EAP 2013** 

**Appeal from the Judgment of Superior Court entered on 9/11/12 at No. 1336**  **EDA 2010, affirming the judgment of sentence entered on 4/16/10 in the**  **Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. CP** **51-CR-0011510-2008; CP-51-CR 0011511-2008 and MC-51-CR**  **0033142-2008**

**ARGUED: September 11, 2013**

DISSENTING OPINION

MR. JUSTICE SAYLOR DECIDED: November 21, 2014

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

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

**and as Appellant preserved this meritorious claim of t rial court error, the appropriate** 

**inquiry implicates a harmless error analysis, for which th e Commonwealth is obligated** 

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

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

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

**harmless error analysis to a violation of a rule of cri minal procedure and collecting** **[J-64-2013][M.O. – Stevens, J.] - 2**

**cases); Commonwealth v. Morris, 522 Pa. 533, 541, 564 A .2d 1226, 1230 (1989)** 

**(holding that a violation of the hearsay rule was har mless).**  **1**

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

**opinions that Appellant is not entitled to relief bec ause he has failed to establish** 

**prejudice. See Majority Opinion, slip op. at 24 (“Be cause Appellant has not** 

**demonstrated that the process deprived him of a fair an d impartial jury, neither do we** 

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

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

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

**prejudice . . ..”). Consequently, and as the Commonw ealth has not attempted to satisfy** 

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

**Appellant, I respectfully dissent.**

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