[J-63-2016] [M.O. - Wecht, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA, :                No. 716 CAP
                              :
              Appellee        :                Appeal from the Judgment of Sentence
                              :                entered on 3/8/2007 in the Court of
                              :                Common Pleas, Lehigh County, Criminal
          v.                  :                Division at No. CP-39-CR-0003637-2003
                              :
                              :
JUNIUS BURNO,                 :
                              :
              Appellant       :                ARGUED: May 11, 2016


                                CONCURRING OPINION


MR. CHIEF JUSTICE SAYLOR                                DECIDED: February 22, 2017
       I join the majority opinion except for the harmless-error disposition attending the

second claim asserted by Appellant, in which he invokes the prohibition against

admission of statements made during plea discussions set forth in Pennsylvania Rule of

Evidence 410(a)(4). See Majority Opinion, slip op. at 28-30. Although I consider the

issue to be a very close one, I tend toward the view that a specific confession to law

enforcement officials is an especially powerful form of evidence that is rarely amenable

to treatment as being merely cumulative of other evidence. Cf. Zappulla v. New York,

391 F.3d 462, 473-74 (2d Cir. 2004) (explaining that “[t]he persuasive influence of a

signed confession cannot be underestimated” and suggesting that “a written confession

can never truly be said to be merely cumulative”). See generally Arizona v. Fulminante,

499 U.S. 279, 296, 111 S. Ct. 1246, 1257 (1991) (highlighting that “[a] confession is like

no other evidence” in terms of its likely effect in assessments by jurors).
      Thus, I would be more comfortable with a disposition premised on waiver, in the

form of Appellant’s agreement that his statements could be used against him if the

terms of his arrangement with the prosecution were not met.1 In this regard, I note that

most jurisdictions hold, as concerns analogues to Pennsylvania Rule of Evidence

410(a)(4), that the protection is subject to knowing, voluntary, and intelligent waivers.

See, e.g., State v. Williams, 135 A.3d 157, 163 (N.J. Super. Ct. App. Div. 2016)

(collecting cases); accord Commonwealth v. Widmer, 120 A.3d 1023, 1027-28 (Pa.

Super. 2015).




1
  See Commonwealth v. Burno, No. 2003/3637, CP-39-CR-0003637-2003, slip op. at 7
(C.P. Lehigh Sep. 28, 2015) (explaining that it was undisputed that Appellant
understood that his statements could be used against him if the terms of his agreement
with the Commonwealth were not met); Majority Opinion, slip op. at 4 (highlighting that
after the plea negotiations resumed, Appellant was reminded of previously agreed
terms); see also N.T., June 2, 2004, at 137 (reflecting an acknowledgment by
Appellant’s then-counsel concerning his understanding of such terms).



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