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decided: October 31, 1980.


No. 80-2-267, Appeal from the Judgments of the Pennsylvania Superior Court, No. 1 Special Transfer Docket, affirming the Order of the Dauphin County Court of Common Pleas.


Raymond C. Hedger, Jr., Harrisburg, for appellant.

Richard A. Lewis, Dist. Atty., Marion E. MacIntyre, First Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., filed an Opinion in Support of Affirmance in which Kauffman, J., joins. Larsen, J., concurs in that result. Roberts, J., filed an Opinion in Support of Reversal in which O'Brien, C. J., and Flaherty, J., join.

Author: Per Curiam

[ 492 Pa. Page 102]


The Court being evenly divided the Judgments of Sentence are affirmed.


NIX, Justice.

Appellant, Clyde Eugene Hill, was convicted by a jury on October 18, 1973 of two counts of murder in the second degree.*fn1 We affirmed the judgments of sentence on direct appeal, Commonwealth v. Hill, 453 Pa. 349, 310 A.2d 88 (1973).*fn2 On May 9, 1977, Hill filed a pro se petition seeking

[ 492 Pa. Page 103]

    post-conviction relief.*fn3 Counsel other than trial counsel was appointed and, after a hearing, Hill was granted permission to file post verdict motions nunc pro tunc. The court en banc denied these motions and Hill appealed to this Court pursuant to 42 Pa.C.S.A. ยง 722(1).*fn4 We transferred the case to the Special Transfer Docket of the Superior Court.*fn5 The Superior Court, sitting in a panel consisting of the late Mr. Justice Manderino, former President Judge Watkins and Judge Cirillo, affirmed the order of the court en banc.*fn6 The Superior Court panel noted that this Court had failed to reach agreement on the underlying question, see, Commonwealth v. Ernst, 476 Pa. 102, 381 A.2d 1245 (1977), and urged that we accept review of this appeal, which we did.

The factual predicate of today's case in not complex. At his trial in 1973 for murder, the issue of Hill's sanity was raised. The trial court instructed the jury that when a defendant asserts the defense of insanity, the defendant has the burden of proving insanity by a fair preponderance of the evidence. Hill's trial counsel did not object to this charge. It is conceded that the charge as given was in conformity with the law as it existed at that time. See e. g., Commonwealth v. Zlatovich, 440 Pa. 388, 393, 269 A.2d 469 (1970); Commonwealth v. Vogel, 440 Pa. 1, 9-10, 268 A.2d 89 (1970); Commonwealth v. Woodhouse, 401 Pa. 242, 248-49,

[ 492 Pa. Page 104164]

A.2d 98 (1960); Commonwealth v. Carluccetti, 369 Pa. 190, 199, 85 A.2d 391, 395 (1952).

We subsequently changed the controlling law in Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974), and provided that where there is evidence in the case sufficient to raise the insanity issue, the prosecution must bear the burden of proving a defendant's sanity beyond a reasonable doubt. There is no doubt that under the Demmitt standard, the instructions given the jury at Hill's trial would now be deemed erroneous. In the Ernst case, all six members of the Court agreed that where a defendant tried prior to the decision in Demmitt had timely objected to such a charge, he should be given retroactive benefit of the Demmitt standard, where his direct appeal was heard after Demmitt, and awarded a new trial. The Court was evenly divided,*fn7 as to whether an appellant on direct appeal should be allowed to raise the question where a timely objection had not been interposed at trial.

The major thrust of the opinions in Support of Affirmance and in Support of Reversal in Ernst -and, indeed, the primary focus of the briefs presented to us in the present case -- was directed to whether Demmitt was based on state evidentiary law or constitutional law, and whether the Demmitt ruling should be given retroactive effect.*fn8 After study we are now convinced that the true crux of the problem presented is the proper application of our strict requirement that litigants must timely preserve their objections to the actions of the trial court as a condition precedent to appellate review of those actions. The question of

[ 492 Pa. Page 105]

    retroactivity of the Demmitt rule was answered when it was decided that the objection could apply to trials before the file date of the opinion in Demmitt. See e. g., Commonwealth v. Moyer, 466 Pa. 464, 468, 353 A.2d 447, 449 (1976); Commonwealth v. Williams, 463 Pa. 370, 373 and n.1, 344 A.2d 877 (1975). The question as to whether we should foreclose an issue because of the absence of a timely objection is not one of retroactivity but rather one of issue preservation.*fn9 These are two mutually exclusive concepts. The determination of the retroactivity of a principle goes to the question of whether that principle is at issue in the case; i. e., its applicability to the trial in question. The question of issue preservation assumes the applicability of the principle but precludes consideration of that question because of procedural defects in the raising of the claim. The failure to interpose an objection is clearly the type of factor which raises a question of issue preservation and it is not one of the concerns relevant in a determination as to the appropriateness of retroactive application.*fn10

The basic principle of issue preservation, which was espoused in Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), has been incorporated into the rules of procedure governing the actions before our courts.*fn11 Specifically, Criminal Procedure Rule 1119(b) regarding requests for instructions and the charge to the jury, states:

[ 492 Pa. Page 106]

(b) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. Pa.R.Crim.P., Rule 1119(b).

This rule and the underlying principle it reflects has been upheld in a variety of contexts by this Court. See e. g., Commonwealth v. Johnson, 484 Pa. 545, 400 A.2d 583 (1979) (where, in prosecution for first-degree murder, defendant failed to object to trial court's original charge, defendant failed to preserve contention that error occurred when, following supplemental instructions, trial court refused his request that malice be defined for the jury); Commonwealth v. James, 483 Pa. 425, 397 A.2d 417 (1979) (when no objection to charge is taken, no error in charge may be raised as ground for review, and thus failure to instruct on involuntary manslaughter was not reached where defendant did not request such a charge and did not object to instructions at trial); Commonwealth v. Kozek, 479 Pa. 171, 387 A.2d 1278 (1978) (claims of error in the trial court's charge were not preserved because they were not the subject of an objection made before the jury retired); Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978) (by failing to specifically object to that portion of charge concerning reasonable doubt standard for proving guilt, defendant failed to preserve his claim that the charge was misleading); Commonwealth v. Smith, 477 Pa. 505, 384 A.2d 1202 (1978) (where defendant failed to object to that portion of the charge telling jury that the death penalty was not involved, the issue was not preserved for purposes of appeal); Commonwealth v. Culberson, 467 Pa. 424, 358 A.2d 416 (1976) (defendant was precluded from raising on appeal the claim that the trial court erred in refusing his requested points for charge by failing to raise any objection); Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976) (appellate court was precluded from considering defendant's claim relating to the charge to the jury because no exception was taken to the charge and because the doctrine of basic and fundamental error has been abolished); Commonwealth v. Dukes, 460 Pa. 180, 331

[ 492 Pa. Page 107]

A.2d 478 (1975) (claimed error of trial court in failing to charge jury on presumption of innocence could not be raised as a reason for a new trial and could not be entertained on appeal, where defendant failed to take exception to failure of court to so charge). Furthermore, this principle applies to the prosecutor as well as to the defendant. See Commonwealth v. Brown, 232 Pa. Super. 26, 332 A.2d 188 (1974) (if prosecutor does not object to jury charge in the trial court, the issue is not preserved on appeal).

The "sound jurisprudential considerations" underlying the policy "that an appellant may not assign as error a portion of a charge to a jury or an omission therefrom unless specific objection is made before the jury retires to deliberate [,] . . . is reflective of the elementary principle that an appellate court does not review issues raised for the first time on appeal." Commonwealth v. Ernst, 476 Pa. at 107-08, 381 A.2d at 1246-47 (opinion in Support of Affirmance). In Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), we set forth the factors compelling the strict enforcement of this policy:

'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 ...

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