Commonwealth v. Thompson , 444 Pa. 312 ( 1971 )

Concurring Opinion by

Mr. Justice Pomeroy:

I join in the opinion of the Court on the merits of this appeal, but believe the Court is mistaken in its stated reason for hearing the appeal, as given in the last paragraph.

While appellant’s counsel did not object to the court’s action, this is not claimed by appellant to have been a denial of the effective assistance of counsel; on the contrary, appellant’s brief indicates that trial counsel acted properly under the circumstances. In my view, the justification of this Court to hear the appeal when the matter now complained of was not objected to below is that the error involved was basic and fundamental. The result was that the trial, in the words of the majority opinion, “failed to satisfy the fundamental requisites of due process in our criminal system.” This is, therefore, exactly the kind of rare situation which our “basic and fundamental error” rule was designed to protect against. See, e.g., Commonwealth v. Jennings, 442 Pa. 18, 274 A. 2d 767 (1971); Commonwealth v. Williams, 432 Pa. 557, 563-64, 248 A. 2d 301 (1968).

Mr. Justice Eagen and Mr. Justice Barbieri join in this opinion.