Commonwealth v. Pressley

¶1concurring.

¶2I concur in the result. In my view, there is a middle ground between the Majority Opinion and the Concurring and Dissenting Opinion, and that middle ground is consistent with both the plain language of Pa.R.Crim.P. 647, and the practicalities of jury trials. As I read the Rule, a post-charge objection is certainly required where the objection is based upon the content of the charge which has just been given. This is a sensible requirement. An objection to the charge as given ripens only after it has actually been given; it is only then that the party will know if the judge has followed earlier charging indications, or has misspoken, or has inadvertently omitted an expected or agreed upon point. Where, however, a specific point for charge is requested in advance of charging the jury, and the court indicates that it is not going to charge on that area at all, and the court keeps its word, I do not believe that the plain language of the Rule requires (nor should any such rule require) a redundant objection upon pain of waiver.

¶3The trial court may reject a forwarded point for charge for a variety of reasons. It may believe that the subject of the charge, while a proper matter for the jury in an appropriate case, is not properly at issue in the case at bar. Or, the court may believe that a specific charge in the area is not required to guide the jury in any case (because it is a matter of common knowledge, or because the point would be argumentative, etc.). Or, the court may believe that, although the subject of the proffered charge is appropriate, the party’s *634specific formulation is inaccurate, slanted, or incomplete, and the court intends to cover the point in its own form of the charge; the court, of course, is generally not required to employ certain “magic words.” By the same token, a party may deem itself aggrieved by a charge as given for two very different reasons: (1) because the court did not address an issue at all, leaving the jury with no guidance; or (2) because, although the court addressed the issue, its charge was inaccurate, slanted, or incomplete.

¶4There certainly are instances—and apparently this case represents two such instances—where a pre-charge request for an instruction and a post-charge objection would be redundant and pointless. Here, appellant requested a missing evidence instruction and an instruction that the jury could convict him of a non-charged offense. The court rejected both charges outright, not based upon the form of the points forwarded or the language proposed, but because it deemed neither issue an appropriate one to inject into the jury’s deliberations at all. The court apparently kept its word, not addressing either issue, and a post-charge objection would have been redundant. In my view, Rule 647(B) does not require a post-charge renewal of objection in such an instance. That Rule speaks to the necessity of a post-charge objection where the objection concerns “portions of the charge” or “omissions therefrom.” The objection here, already clearly and completely made, was that the jury will not hear the point covered at all. There is no defective “portion” of the charge or “omission” from it.

¶5On the other hand, there are instances where the content of the court’s charge as delivered gives rise to an objection that is different in substance from any objection that could have been forwarded at the pre-charge stage. For example, the court may agree to issue a requested point, but then misspeak in the delivery. An objection should be forwarded; the court can cure the alleged error immediately. Or, the court may reject a party’s points for charge as written, while noting an intention to cover the same points in its own form of expression. A post-charge objection should be made, explaining how *635the court’s form of expression, as actually delivered, was erroneous under the law. Or, the court may reject a proffered point outright, only to reconsider and then address the issue in its own language during the charge. Again, a post-charge objection should be forwarded, specifically explaining how the charge as given was erroneous.

¶6In short, the answer to the question of whether a post-charge objection is required, in instances where a point for charge has been rejected, is: it depends. I recognize that there is some salutary benefit in the Majority’s bright-line rule, and the careful practitioner should always err on the side of repeating an objection, even if the charge as given raises no issue different from what existed at the time of the rejected charge proffer.1 Nevertheless, where nothing has happened in the actual charge to the jury to diminish the force and accuracy of the existing objection represented by a rejected point for charge, it seems to me to be harsh and unnecessary to deem the claim defaulted.

¶7In the case sub judice, the Court holds that no waiver occurred. I agree, but for different reasons: I see no need under the Rule for appellant to have forwarded a post-charge objection where, as here, the court did not address the requested topics at all. Hence it is that I concur in the result.

¶9concurring and dissenting.

¶10I join in the majority’s ultimate result in this case, that Appellant’s failure to lodge a second specific objection to the trial court’s charge to the jury following the court’s prior denial of Appellant’s requested points for charge did not result in waiver of the propriety of the court’s ruling in this regard on appeal. I disagree, however, with the majority’s prospective abandonment of our prior case law permitting a litigant in a criminal case from avoiding waiver under the scenario sub *636judice. Accordingly, I dissent from the majority’s holding to this effect.

¶11The underlying factual history of the case is fully set forth by the majority, thus only reiteration of those facts relevant to the ultimate issue on appeal are restated. As indicated by the record, prior to the close of testimony in this criminal matter, Appellant’s counsel submitted proposed points for charge to the court. Thereafter, prior to counsels’ closing arguments, the trial court rejected Appellant’s requested points for charge on the record. Closing arguments then took place, followed by the court’s instructions. The court inquired whether Appellant’s counsel wanted additional instructions or corrections to the instructions provided, to which counsel responded in the negative.

¶12On appeal to the Superior Court, Appellant argued that the trial court erred in failing to instruct the jury on his requested points for charge. The Superior Court concluded that although Appellant had requested the subject jury instructions and the court rejected them, because Appellant’s counsel failed to make a subsequent objection after the court’s actual charge prior to the jury deliberating, counsel failed to preserve any appellate issues relating to the court’s rulings. The Superior Court relied on Pennsylvania Rule of Criminal Procedure 647(B), requiring that in order to preserve appellate issues regarding the jury charge a specific objection must be made prior to the jury retiring for deliberation.1

¶13*637On appeal here, the majority notes that the Superior Court correctly cited to Rule 647(B) in concluding that counsel was required to raise a specific objection to the court’s charge prior to the jury deliberating in order to preserve appellate issues in this regard. The majority further points out that Pa.R.Crim.P. 603, which generally abrogates the necessity of taking an exception to a ruling, specifies that such principle does not apply to the charge.2 The majority, however, acknowledges that our Court has, through case law, held that strict adherence to our above-cited Rules of Criminal Procedure will not affect issue preservation where counsel’s requested points for charge have been rejected by the court. Thus, the majority reverses the Superior Court’s decision regarding waiver and remands for a decision on the merits of Appellant’s allegations of error relating to the court’s failure to instruct the jury as requested. Nevertheless, the majority specifies that from this point forward, we will no longer permit litigants to avoid waiver where, as here, strict compliance with the Rules of Criminal Procedure is not followed. See Maj. Op. at 630-31, 887 A.2d at 224.

¶14The rationale given by the majority is that requiring a specific objection following the court’s charge “serves the salutary purpose of affording the court an opportunity to avoid or remediate potential error, thereby eliminating the need for appellate review of an otherwise correctable issue.” Id., citing Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747 (1977). Our Court, however, has clearly held that submission of points for charge sufficiently informs the court of a litigant’s desire that the requested points be included in the instructions to the jury without the need for a second specific objection following the actual charge. While in Martinez, cited by the majority, our Court found waiver where counsel failed to lodge a specific *638objection following the court’s charge based upon the purported need to afford the court an opportunity to remediate potential error, we cited to Commonwealth v. Sisak, 436 Pa. 262, 259 A.2d 428 (1969), for this proposition. In Sisak, however, we actually rejected the argument that counsel’s failure to object resulted in waiver. The majority opinion in Sisaknoted:

[The dissent] concludes, however, [ ] that error cannot now be considered because no exception was taken to the court’s charge by defense counsel and because, in the view of the minority, the error was not basic and fundamental.

The special-exception rule, as has so often been stated, is designed to prevent a party from sitting silently by, taking his chances on a favorable verdict, and then, in the event of an unfavorable verdict, complaining of matters which could have been corrected at trial had they been brought to the attention of the court in a timely fashion. In the present case, however, appellant’s counsel did not remain silent and await the verdict. Rather, he requested five points for charge addressed to the accomplice rule. Each of these points was refused, and defendant was granted an exception. The formal submission of requested points for charge serves the same function as a request for additional or different instructions at the close of the court’s charge. Both procedures present the issue to the trial judge. Both enable the court to avoid error by charging on the issue presented. In the case at bar, it would serve no useful purpose to require the defendant to request additional instructions ... since the court had already rejected points for charge because of its belief that as a matter of law [the instruction was not warranted].

¶15Id. at 432 (citations and footnotes omitted).

¶16In Commonwealth v. Williams, 463 Pa. 370, 344 A.2d 877, 879 n. 1 (1975), we properly applied the holding in Sisakand, citing thereto, noted the following in response to the Commonwealth’s argument that waiver resulted from appellant’s failure to lodge exceptions to the court’s charge following its rejection of appellant’s points for charge:

*639Where, however, as here, a point for charge is timely offered and rejected, we have indicated that there is no need for the party who has submitted the point to take further action at trial to preserve the issue; the trial judge has been fully alerted, and no purpose would be served by insisting on the formality of an exception to a refusal of one’s point.

¶17Despite these prior rulings, the Court today concludes that the better practice is to require litigants to reassert, rotely, the same request for instructions made only a brief procedural step earlier in the trial process or forever forego a claim of error regarding the court’s failure to provide them. This hyper-technical procedural requirement appears to be counter-intuitive to the court’s conduct of orderly trial proceedings and poses the risk that a litigant will be forced to alienate the trial judge, in a situation where heated debate over instructions may have just taken place, and the jury, which suffers the frustrations of lengthy delays as procedural wrangling drones on outside its hearing.

¶18In my view, the better practice would be to allow for appellate review of issues regarding the court’s jury instructions where counsel’s proposed points for charge are rejected without the added requirement that a subsequent objection on the identical point following the charge be made. As the purpose behind requiring an objection to an issue involving jury instructions is to give the trial court the opportunity to correct any error, I do not believe that such purpose is better served by requiring the trial court to rule on the same request twice.3 As noted by the majority, the current practice in civil trials pursuant to Pennsylvania Rules of Civil Procedure 226 and 227, does not require a second objection to the court’s instruction in order to preserve appellate issues. Maj. Op. at 631-32 n. 8, 887 A.2d at 224 n. 8. Moreover, such practice is *640consistent with our recent amendment of Pa.R.Crim.P. 720, which makes the filing of post-sentence motions optional, and, which specifies that “issues raised before or during trial shall be deemed preserved for appeal whether or not the defendant elects to file a post-sentence motion on those issues.” This amendment evinces a more liberal stance where issue preservation is concerned; I would continue with this liberal approach regarding the matter sub judice.

¶19Accordingly, I dissent from the majority’s decision to change prospectively the current practice of permitting appellate review of issues regarding the trial court’s rulings on a litigant’s proposed points for charge in a criminal case where, as here, a second objection is not made following the charge.