Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, No. 218 of 1971, in case of Commonwealth of Pennsylvania v. Alvin Menno Clair.
D. Patrick Zimmerman, Thomas H. Wentz, III, and Wentz and Weaver, for appellant.
George T. Brubaker, Assistant District Attorney, and Henry J. Rutherford, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice Eagen and Mr. Justice O'Brien join in this dissenting opinion.
This appeal raises the question of the applicability of the basic and fundamental error doctrine to the failure to properly preserve trial errors in criminal matters.
Appellant was convicted by a jury of the murder of his wife in the second degree. He was sentenced to a term of imprisonment of not less than seven nor more than fourteen years. This is a direct appeal from the judgment of sentence. Act of July 31, 1970, P. L. 673, No. 223, art. II, § 202, 17 P.S. 211.202 (Supp. 1974-75).
Appellant raises three objections to the jury charge. They are: (1) that the trial judge invaded the jury's province; (2) that the judge prejudiced appellant when reviewing the testimony and (3) that the charge as to murder in the second degree was erroneous. Although appellant admits that he failed to raise these objections before the jury retired to deliberate in accordance with Rule 1119b of the Pennsylvania Rules of Criminal Procedure, he nevertheless claims that these errors are reviewable by this Court because they are basic and fundamental errors which justify reversal absent an objection or exception. Appellant cites Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968).
The rule of Commonwealth v. Williams, supra, however has been subject to attack. Dissenting in that case, Mr. Justice Roberts pertinently observed:
"The proper functioning of our guilt-determining process neither requires nor assures a defendant an errorless trial. A defendant is, however, entitled to a fair trial free of such trial errors as his trial counsel timely sought to have corrected by calling them to the court's attention. Trial errors are made in the courtroom and it is there that the correction process should at least be initiated.
"The defense may not successfully complain of trial errors for the first time only after the jury has returned a verdict of guilty, unless the errors were initially challenged at trial, and thereby preserved on appeal. The majority now -- contrary to the whole course of modern trial procedure -- encourages defense counsel to sit by silently without calling errors to the trial court's attention until after the guilty verdict is returned. In effect the majority's present approach places the appellate court in the role of a ...