This month on SCOPAblog, the Court issued 3 opinions and 5 allocatur grants.  On the opinion side, the most interesting discussion is a little deep in the weeds.  In In re: Prospect Crozer, the court grappled with the effect of a senior-status judicial officer's violation of a constitutional provision prohibiting membership on municipal boards.  Although the opinion itself is an interesting discussion of a little-known constitutional provision, along the way, Justice Donohue writing for the majority discusses the conflict of interest as creating a structural error.  In a concurrence, Justice Mundy agrees, but writes separately to draw a distinction between nonwaivable errors on one hand and structural errors on the other.  For decades, Pennsylvania law has held that there is almost no such thing as a nonwaivable error.  The idea is that each party is obliged to give the opposing party a chance to respond to claimed errors and the trial court an opportunity to correct them instead of doing nothing, and then gainsaying what happened on appeal.  There are very few exceptions to this rule, such as the imposition of an illegal sentence in a criminal case, which was initially viewed as nonwaivable because the error was patent on the face of the record such that there was essentially no benefit to trial court proceedings on the subject (albeit the category has expanded in recent years).  Notably, Pennsylvania law in this regard diverges from federal law, which recognizes that some errors are so clear or fundamental that they are nonwaivable.

As Justice Mundy cogently explains, whether an error is waivable or nonwaivable is a distinct issue from whether it is an error, like most, which requires a case-specific showing of prejudice and is therefore subject to harmless error review, and an error that is structural or otherwise presumptively prejudicial.  This latter category generally includes errors which undermine the process as a whole, such as a non-English speaking criminal defendant not being provided an interpreter, or witnesses not being sworn, or, in this case, the court being constitutionally ineligible to serve as a judge.  In recent years, there has been a tendency to blend the concept of nonwaivability and structurality, which makes sense given that the reasons underlying, say, illegal-sentence doctrine, structural error, and clear or fundamental error in federal court, are all essentially similar.  Someday, the Court may be open to tempering waiver doctrine to appear more like federal practice.  After all, the Pennsylvania and federal doctrines are really just different balances of who is responsible for the quality of litigation and procedural and substantive justice.  But Justice Mundy's concurrence explains why if it is to be rebalanced, the Court will need to do it explicitly.

On the allocatur side, I'm most interested in Strope, which will have significant implications for a large subset of narcotics investigations and prosecutions in Pennsylvania.  In earlier decisions, the Court identified that the Commonwealth is required at a preliminary hearing to establish both the substance of an offense and the identity of the defendant at least in part based on someone with personal knowledge, rather than hearsay statements.  The question in Strope is whether the Court really meant the latter holding, particularly in the case where it is not police, but, rather, their confidential informants, who can identify the defendant as a perpetrator.  The Court's decision will likely balance the policy goals underlying the need for preliminary hearings to proceed with actual evidence, and the desire for law enforcement to conduct certain investigations via informants, and will no doubt impact how those investigations are conducted for decades to come.

Precedential Opinions

In Re: Prospect Crozer from the Delaware Co. Brd. of Assmt., 37-70 MAP 2023 (Opinion by Donohue, J.) (holding a senior-status judge's violation of the constitutional requirement that he not sit on municipal boards did not automatically forfeit his judicial office, but did create a conflict of interest requiring that his decision in the case be vacated)

• See also Concurring Opinion by Mundy, J.

Kleinbard v. Lancaster Co. DA, 101 MAP 2023 (Opinion by Dougherty, J.) (reversing the Superior Court's determination that an agreement between a district attorney and a law firm was void ab initio as a matter of law)

• See also Concurring Opinion by Wecht, J.
• See also Dissenting Opinion by Donohue, J.

Commonwealth v. Murchison, 13 EAP 2024 (Opinion by Wecht, J.) (holding that postconviction DNA evidence is subject to the same after-discovered evidence test as other evidence)

Allocatur Grants

In the Interest of: G.G.B., 292 WAL 2024 (granting review to consider the appropriate standard for determining initial venue of a child-dependency proceeding where the child is born dependent in a county in which neither parent resides)

Commonwealth v. Strope, 354 MAL 2024 (granting review to consider whether the Commonwealth can establish a prima facie case of a defendant's identity via a confidential informant's hearsay declaration)

Erie Insurance Co. v. Heater, 301 MAL 2024 (granting review to consider notice-of-injury requirements of the workers' compensation act)

Commonwealth v. Serrano-Delgado, 576 MAL 2023 (granting review to consider whether an evidentiary rule precluding cross-examination of character witnesses about criminal conduct not resulting in convictions applies to criminal conduct resulting in an adjudication of delinquency)

700 Pharmacy v. Bureau of Workers' Comp., 274-278 MAL 2024 (granting review to consider conflict-of-interest referral provisions of the workers' compensation act as applied to pharmacies)