structural error in Pennsylvania

2026The failure of a trial court to “appoint an attorney to represent the child’s legal interests, i.e., the child’s preferred outcome, . . . constitutes structural error in the termination proceedings.” K.M.G., 240 A.3d at 1224 (citing T.S., 192 A.3d at 1082); see also In re L.B.M., 161 A.3d 172, 183 (Pa. 2017) (holding that “[t]he denial of mandated counsel compromises the framework of the proceedings and constitutes a structural error”); see also A.C.M., 333 A.3d at 708.

2026A trial court’s failure to “appoint an attorney to represent the child’s legal interests, i.e., the child’s preferred outcome, . . . constitutes structural error in the termination proceedings.” K.M.G., 240 A.3d at 1224 (citing T.S., 192 A.3d at 1082 ); see also In re L.B.M., 161 A.3d 172 , 183 -8- J-S39030-25 (Pa. 2017) (holding that “[t]he denial of mandated counsel compromises the framework of the proceedings and constitutes a structural error”); see also A.C.M., 333 A.3d at 708.

2026A structural error is a “constitutional deprivation[] . . . affecting the framework within which [a] trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991). - 12 - J-S22029-25 Because it is well established that “[j]udicial bias is a violation of due process[,]” Commonwealth v. McLaughlin, 240 A.3d 980, 983 (Pa. Super. 2020) (citation omitted), under the specific facts of this case, we conclude that Brooks should be afforded PCRA relief and granted a new trial.

2024I respectfully disagree with the Majority’s conclusion that the Fifth Amendment violation at issue here—i.e., the certification court’s improper consideration of Taylor’s silence to certify him to adult criminal court—is a structural error that affects the “framework within which the trial proceeds.” See Arizona v. Fulminante, 499 U.S. 279, 310 (1991).

2026The failure of a trial court to “appoint an attorney to represent the child’s legal interests, i.e., the child’s preferred outcome, . . . constitutes structural error in the termination proceedings.” K.M.G., 240 A.3d at 1224 (citing T.S., 192 A.3d at 1082); see also In re L.B.M., 161 A.3d 172, 183 (Pa. 2017) (holding that “[t]he denial of mandated counsel compromises the framework of the proceedings and constitutes a structural error”); see also A.C.M., 333 A.3d at 708.

2026A trial court’s failure to “appoint an attorney to represent the child’s legal interests, i.e., the child’s preferred outcome, . . . constitutes structural error in the termination proceedings.” K.M.G., 240 A.3d at 1224 (citing T.S., 192 A.3d at 1082 ); see also In re L.B.M., 161 A.3d 172 , 183 -8- J-S39030-25 (Pa. 2017) (holding that “[t]he denial of mandated counsel compromises the framework of the proceedings and constitutes a structural error”); see also A.C.M., 333 A.3d at 708.

2023Coleman’s claim was presented in advance of the Supreme Court’s decision in Weaver v. Massachusetts, [ 137 S.Ct. 1899 (2017)], wherein the Court granted certiorari on the limited issue of “whether a defendant must demonstrate prejudice in a case [. . .] in which a structural error is neither preserved nor raised on direct review but is raised later via a claim alleging ineffective assistance of counsel, [. . .] specifically and only in the context of trial counsel’s failure to object to the closure of the courtroom during jury selection.

2021The United States Supreme Court granted certiorari to resolve a disagreement regarding the proper standard of prejudice for a structural error that was “neither preserved nor raised on direct review but [was] raised later via a claim alleging ineffective assistance of counsel.” Id. at 1907 . - 34 - J-S29028-20 The Weaver Court held that when raising an ineffectiveness claim, a petitioner must demonstrate prejudice.

2022A structural error is “a constitutional violation affecting the ‘framework within which the trial proceeds, rather than simply an error in the trial process itself[.]’” Commonwealth v. Baroni, 827 A.2d 419, 420 (Pa. 2003) (citing Arizona v. Fulminante, 499 U.S. 279, 310 (1991)).

2021Yet he fails to establish how Bennett’s negotiation of a shorter aggregate sentence, in front of a different judge, when the evidence was fourteen years staler than it was at the time Appellant negotiated his plea, amounts to a structural error that the PCRA court failed to remedy, or even that he has a right that has been violated.3 ____________________________________________ 2The quote Appellant offers from Walter v. United States, 969 F.2d 814, 817 (9th Cir. 1992), arose in the context of determining whether the court had jurisdiction over a habeas corpus petition filed pursuant to 28 U.S.

2022See generally Commonwealth v. Martin, 5 A.3d 177, 218-19 (Pa. 2010) (Saylor, J., concurring);18 In re Adoption of K.M.G., 240 A.3d 1218 , 1235 (Pa. 2020) (failure to appoint an attorney to represent child’s legal interests constituted a structural error that was non-waivable).

2018Generally, denial of counsel is a structural error, see Commonwealth v. Martin , [ 607 Pa. 165 ] 5 A.3d 177 , 192 ( [Pa.] 2010) ; although such error usually stems from deprivation of a constitutional right to counsel.

2020In order to obtain relief on his ineffective-assistance-of- trial-counsel claim, though, Appellant must also establish that trial counsel’s failure to object lacked any reasonable basis and that Appellant was prejudiced thereby.10 See Jones, 71 A.3d at 1063 . 10 On direct appeal, when a defendant has been denied her right to a public trial, a new trial must be granted and no showing of prejudice is required because the violation is in “the nature of a structural error.” See Commonwealth v. Rega, 70 A.3d 777, 786-87 (Pa. 2013) (citation omitted).

2020Because Appellant had the opportunity to question trial counsel about his failing to object to the 12 On direct appeal, when a defendant has been denied her right to a public trial, a new trial must be granted and no showing of prejudice is required because the violation is in “the nature of a structural error.” See Commonwealth v. Rega, 70 A.3d 777, 786-87 (Pa. 2013) (citation omitted).

2024The court reviewed relevant cases from the United States Supreme Court establishing when an error committed during a criminal proceeding is of such gravity that it should be considered structural in nature, such as McCoy v. Louisiana, 138 S.Ct. 1500 (2018) (holding that defense counsel’s admission at trial that his client was guilty, over the client’s objection, which violated the defendant’s Sixth Amendment right to counsel, was a structural error because it affected the framework within which the trial proceeded and was not an error in the trial process itself). 8 Just as in its prior decisi

2024See McCoy, supra. Likewise, a structural error which occurs during a judicial proceeding such as a sentencing hearing necessitates reversal of the judgment entered in that proceeding and remand for a new hearing.

2018See Sullivan v. Louisiana, 508 U.S. 275, 281-282 (1993) (explaining that harmless-error review does not pertain to structural errors); Commonwealth v. Rega, 20 A.3d 777, 786 (Pa. 2013) (stating - 20 - J-S75010-17 “various courts have found a violation of the right to a public trial to be in the nature of a structural error”).

2015See Sullivan v. Louisiana, 508 U.S. 275, 281-282 (1993) (explaining that harmless-error review does not pertain to structural errors); Commonwealth v. Rega, 20 A.3d 777, 786 (Pa. 2013) (stating “various courts have found a violation of the right to a public trial to be in the nature of a structural error”).

2018“A structural error is defined as one that affects the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Id. (citation omitted).

2018See, e.g., In re K.J.H., 180 A.3d at 413-14 (stating that the failure to appoint counsel to the child pursuant to section 2313(a) was a structural error and required remand for appointment of counsel, despite the fact that grandparents’ petition to terminate mother’s parental rights had been denied); In re Adoption of G.K.T., 75 A.3d at 527 - 28 (concluding that failure to appoint the child counsel under section 2313(a) required reversal of order granting adoptive couple’s petition to terminate father’s parental rights).

2025See Interest of H.H.N., 296 A.3d 1258, 1266 (Pa.Super. 2023) (noting that dismissing counsel from one of the termination hearings constitutes “the deprivation of Children’s right to counsel [and] is a structural error” (cleaned up)); In the Interest of K.-M.L., 2025 WL 1455675 , at *5 (Pa.Super. 2025) (non- precedential decision) (finding structural error where the court dismissed child’s counsel in the middle of the termination hearing, even though it was at counsel’s request and after counsel conveyed child’s preferences, because child “was deprived the benefit of representation of legal cou

2025K.-M.O.L., 2025 WL 1455675 (citing H.H.N. and remanding for new termination hearing because guardian ad litem not present for witness testimony and closing argument during termination proceedings). 9 Under these circumstances we must remand for a new termination hearing because the error in dismissing Child’s counsel “is a structural error and is not subject to harmless error analysis.” H.H.N., 296 A.3d at 1266-67 . ____________________________________________ Q.

2022See Isaac, 205 A.3d at 367 ; Pou, 201 A.3d at 745-46 .

2021See Isaac, 205 A.3d at 365-66 (explaining that the presumption of prejudice applicable to a structural error on direct appeal is different from the prejudice that a PCRA petitioner must prove when raising an ineffectiveness claim); see also Commonwealth v. Cox, 863 A.2d 536, 549 (Pa. 2004) (rejecting the petitioner’s claim that counsel was ineffective for failing to object to an erroneous reasonable doubt instruction where the petitioner failed to establish “a reasonable probability that, but for counsel’s alleged error, his verdict would have been different”); see generally Turetsky, 925 A.2d

2018See also Waller v. Georgia, 467 U.S. 39 , (1984) (concluding, in context of a direct appeal, that “the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee”).

2015See also Waller v. Georgia, 467 U.S. 39 , (1984) (concluding, in context of a direct appeal, that “the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee”).

2017See, e.g., Owens v. United States, 483 F.3d 48, 63 (1st Cir. 2007).

2013See, e.g., Owens v. United States, 483 F.3d 48, 63 (1st Cir.2007).

2018As the Supreme Court *416 of the United States explained in Weaver , "in the case of a structural error where there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to automatic reversal regardless of the error's actual effect on the outcome." Weaver , 137 S.Ct. at 1910 , citing Neder v. United States , 527 U.S. 1 , 7, 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999). 1 Therefore, labeling an error structural only prevents an appellate court from finding the error harmless if the appellant raises the issue.

2018As the Supreme Court *416 of the United States explained in Weaver , "in the case of a structural error where there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to automatic reversal regardless of the error's actual effect on the outcome." Weaver , 137 S.Ct. at 1910 , citing Neder v. United States , 527 U.S. 1 , 7, 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999). 1 Therefore, labeling an error structural only prevents an appellate court from finding the error harmless if the appellant raises the issue.

2025Specifically, our Supreme Court has “declined to elevate form over substance” in analogous circumstances wherein a child “received appropriate legal representation despite the absence of an appointment order.” Interest of A.C.F., 341 A.3d 106 , 2025 WL 1420365 , at *2 n.3 (Pa.Super. 2025) (non-precedential decision) (citing In re T.S., 192 A.3d 1080 , 1090 n.19 (Pa. 2018)); see also Commonwealth v. D’Amato, 856 A.2d 806, 822 (Pa. 2004)).

2021Id. - 14 - J-S53013-20 (citing Lee v. United States, 137 S.Ct. 1958 (2017) (finding that the presumption of reliability in judicial proceedings has no place where a defendant was deprived of a proceeding all together), McCoy v. Louisiana, 138 S.Ct. 1500 (2018) (finding that counsel’s admission of client’s guilt over client’s express objection constitutes a structural error and does not require a showing of prejudice), and Garza v. Idaho, 139 S.Ct. 738 (2019) (finding that prejudice is presumed where counsel’s performance deprives the appellant of an appeal he would have otherwise taken even wh

2015Accordingly, we find this claim waived. _______________________ (Footnote Continued) Stenberg, 163 F.3d 470, 475 (8th Cir. 1998) (“[W]e hold that when counsel’s deficient performance causes a structural error, we will presume prejudice under Strickland.”). -6- J-S48003-15 We note that Hall claims that “[t]he instruction in this case shifts the burden to the appellant to prove that he is not guilty when in fact that burden remains with the Commonwealth at ll [sic] times.” Appellant’s Brief, at 11.

2008In the present case, appellants claim that the Superior Court erred in vacating the PCRA court’s new trial order because the failure of trial counsel to request an of-record, oral jury waiver colloquy by the trial court involves a structural error that is not subject to the prejudice requirement of Strickland, 12 Appellants urge this Court to adopt the analysis in McGurk v. Stenberg, 163 F.3d 470 (8th Cir.1998), and rule that if counsel’s ineffectiveness causes a jury waiver that was neither knowing nor voluntary, the defendant does not have to establish that the outcome of the jury trial woul

2026A structural error is a “constitutional deprivation[] . . . affecting the framework within which [a] trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991). - 12 - J-S22029-25 Because it is well established that “[j]udicial bias is a violation of due process[,]” Commonwealth v. McLaughlin, 240 A.3d 980, 983 (Pa. Super. 2020) (citation omitted), under the specific facts of this case, we conclude that Brooks should be afforded PCRA relief and granted a new trial.

2026See Commonwealth v. Bradley, 459 A.2d 733 (Pa. 1983).

2026Although we are not privy to the actual content of the ex parte communications between then-DA Parks Miller and Judge Lunsford, the sheer likelihood of bias on the part of the trial judge, who admitted to the communications, is simply “too high to be constitutionally tolerable.” Williams v. Pennsylvania, 579 U.S. 1, 4 (2016).