*1 Pennsylvania, COMMONWEALTH of
Appellee WILLIAMS, Appellant.
Lucillious Pennsylvania.
Superior Court of
Submitted Feb. 2008.
Filed Oct. *2 Gelman, babysitter by taking them and some of Philadelphia, ap- Norris E. pellant. on weekend out- younger their brothers N.T., house. ings and then to his Green, George Atty., for M. Asst. Dist. (C.N.); 254, 257, 10/9/02, pp. 210-11 Com., appellee. *3 (T.B.). sexually as- 260-61 Williams STEVENS, BEFORE: DONOHUE car and saulted the victims his his *, and FITZGERALD JJ. bedroom. Each time victims entered DONOHUE, OPINION BY J.: house, he instructed them to appeals 1 from the Lucillious Williams all of their clothes off in the front take order entered the Court of Common hallway gave and them a t-shirt to wear County, Pleas of Delaware which denied clothes, while he washed their even pursuant his first filed to the Post petition dirty their clothes were not and though (“PCRA”), Act Conviction Relief changed did not need to be or washed. §§ Upon C.S.A. 9541-9546. our review (N.B.); N.T., 10/9/02, pp. 37-39 record, we affirm. (T.B.). (C.N.); (S.P.); 261-262 213-14 ¶2 commencing After a on required girls to take baths Williams was convicted of October Williams N.T., 10/9/02, boys. pp. 264- with the 3121], § rape one count of Pa.C.S.A. [18 (T.B.). girls’ breasts He washed involuntary eleven counts of deviate sexual into vaginas finger and and inserted his 3123], § intercourse Pa.C.S.A. fourteen [18 N.T., vaginas. N.B.’s C.N.’s aggravated counts of indecent assault [18 (T.B.). 10/9/02, (C.N.); 266 pp. 232-33 3125], § and five counts of cor- Pa.C.S.A. sucked, repeatedly rubbed or Williams § ruption 6301]. minors Pa.C.S.A. [18 girls’ vaginas, breast and touched The trial court to an sentenced Williams often in full view of the other victims. aggregate imprisonment term of (D.B.) (defen- N.T., 10/9/02, pp. 118-20 years registration and to lifetime vagina); dant touched the inside of her registration requirements under DNA Me- (S.P.); (C.N.); 175-76 218-19 § gan’s seq.]. Law 9791 et [42 Pa.C.S. (T.B.). repeatedly forced 275-76 He ¶ 3 The trial court set forth the relevant T.B., S.P., N.B., D.B., C.N. and T.B.’s background leading factual to Williams’ and sometimes penis brother to suck his conviction and sentence as follows: required perform T.B.’s brother to fella- family was a relative Williams and/or N.T., rubbing genitals. N.B.’s tio while friend of the victims and their mothers. 10/9/02, 53-59, 62-65, (N.B.); pp. 87-88 (T.B.). N.T., 10/9/02, pp. 253-254 Mul- 110-13, 117-18, 124-26, (D.B.); 172- tiple gave damning child witnesses testi- (T.B.). (S.P.); He 179-83 272-75 Williams, N.B., including mony against penis vagina into T.B.’s also inserted D.B., S.P., C.N., and T.B. All of these girls present several other were while years thirteen children were under legs. N.B.’s penis and stuck his between incidents; age at the time of the hence 10/9/02, (N.B.); N.T., pp. 44-46 their reference to Williams as “Uncle (T.B.). (D.B.); 270-71 No other adult (N.B.); N.T., 10/9/02,pp. Lou.” 28-30 place. the attacks took when (C.N.); (D.B.); (S.P.); 104-06 (S.P.). N.T., 10/9/02, pp. 183-84 (T.B.). 250-51, 254 on the retired to deliberate of the victims’ moth- With the consent 11, 2002. ers, Friday, October morning functioned as the victims’ * specially assigned Superior Court. Former Justice of N.T., 10/11/02, they only all of a p. early 122. In the eve- back that wanted now ning, jury foreperson the fol- wrote T.B.’s which is about sudden lowing note to the Court: My is an hour. concern is just feeling pressure some kind of transcripts
Can we have the of what girls[’] testimony was said this case because of the lateness [in] resolve court, i.e., given oral Friday night, It [hour.] [and] court, D.B., tape audio would be day holiday weekend we have a three fíne.. T.B., S.P., N.B., C.N. Yes or no would wondering and I am how all coming up, N.T., you. sufficient. Thank twenty in that minute period of a sudden 10/11/02, p. responded: 121. The Court ... all of need they now a sudden didn’t *4 required ap- The time will be
Yes[.] I girls. to hear the of those proximately you five hours. Do wish jury may just am afraid that be tonight Tuesday hear it or reconvene or feeling pressure, pressure. undue And begin tonight Tuesday[?] and continue putting it is not the court undue pres- Monday. are on Courts closed sure, involving litigation, nor it is jury foreperson
Id. The replied: “Can just the circumstances of the case. only we listen to T.B.’s oral in N.T., 10/11/02, pp. 122-24. jury N.T., deliberation room?” requested Counsel that “it would 10/11/02, 121-22. pp. The Court in- probably bring be best them back formed the that “they could either N.T., 10/11/02, Tuesday.” p. 124. original hear the in the courtroom or a replied: The Court copy the deliberation room. Produc- pre- That is one of the alternatives copy might tion of a slightly long- take them, they rejected sented to and it. So N.T., 10/11/02, er.” p. The your suggestion provid- what is lieu of original elected to listen to the tape ing they them with the nobody present. courtroom with Id. N.T., required tape? have now on the The Court then “determined 10/11/02, pp. 124-25. original tape and a technician will be one, “I Counsel answered: don’t have provided jury] [the delib- objection just my and is because of the they eration room so that can deliberate totality puts of the circumstances it while listening tape privately.” pressure on them to resolve this mat- Id. ter.” Id. The Court continued: Defense counsel following raised the jury] they still choices and [The [has] objection: very are now aware of the choices that deliberating [T]he has been since they today have which are to continue p.m. Approxi- 11:19. And it is now 8:00 Tuesday come back or do both. The mately forty ago minutes or 45 minutes fact is there aren’t other alterna- ago exchange started with the you sug- something tives unless have they their second note came in to N.T., 10/11/02, gest. p. 126. clarify [T]hey the first note. indicate again, Once counsel stated: “I don’t at they want to hear the of all guess calling I point. witnesses, complaining the five chil- do, here, they the shots what want to response you dren. And in to that told goes through unless the Court what was them it would a five hour least said.” Id. they duration would have to listen to. on continued deliberate
You sent that note back and I believe 11, 2002, and twenty they Friday evening, about minutes later came October ALL BE DURING morning, be- PRESENT Tuesday October returning fore their verdict on the after- HIS CRITICAL STAGES OF 15th. TRIAL, noon of October AND WHICH VIOLAT- ED 602 AND 646? RULES ¶4 chal- appeal filed a direct give a lenging the trial court’s failure to REQUIRED IS PREJUDICE regarding credibility instruction AN INEFFECTIVENSS WHEN witnesses, of child the Commonwealth’s THE DENIAL OF CLAIM RAISES comply request failure to AT A CRITICAL COUNSEL particulars, for a bill PROCEEDINGS, THE STAGE OF the continuation of court’s refusal to allow AD- THE PCRA COURT’S AND IS allowing jury to jury deliberations and REQUIREMENT THE DITION OF audiotape testimony during jury de- hear (sic) OF PREJUDICE IS CON- judg- This Court affirmed the liberations. TRARY TO AND AN UNREASON- by unpublished memo- ment of sentence ABLE CLEAR- APPLICATION OF denied randum and the LY ESTABLISHED UNITED further review. AU- STATES SUPREME COURT Williams, (Pa.Super.2004) *5 THORITY? memorandum), appeal de- (unpublished REQUIRED, II. IF PREJUDICE IS (2005). nied, 717, 582 Pa. DEMON- CAN [WILLIAMS] May filed a On Williams STRATE PREJUDICE? petition, counseled PCRA which the PCRA III. WERE RULES OF CRIMINAL hearing. court denied without a This 602 AND 646 PROCEDURE VIO- timely complied appeal followed. Williams LATED AND TRIAL WAS the trial court’s order to file a concise with FOR COUNSEL INEFFECTIVE appeal pursuant statement of the issues on FAILING TO HAVE OBJECT- Pa.R.A.P.1925(b).1 to The trial court is- ED AND ON 602 646 GROUNDS opinion sued a written on these issues on THE OBJEC- AND BECAUSE 27, July HE DID TION REGISTER WAS following presents is- INADEQUATE TO WOEFULLY sues for our review: THE PRESERVE ERRORS? INEF- TRIAL COUNSEL I.WAS TRIAL INEF- IV. WAS COUNSEL FOR FAILING TO FECTIVE HE BECAUSE FECTIVE PROPERLY OBJECT TO PRO- REQUEST FAILED TO JURY BY THE CEDURE UTILIZED INSTRUCTIONS PROHIBIT- DE- TRIAL COURT WHICH ING THE JURY FROM USING NIED PETITIONER HIS THE FACT THAT SIX RAPES AMENDMENT RIGHT SIXTH FOR CONSOLIDATED WERE CRITI- TO COUNSEL DURING TRIAL, TRIAL AS PROPENSITY EVI- THE CAL STAGES OF RIGHT TO DENCE? HIS DUE PROCESS we found waiver previous con- cases in which 1. We note Williams’ concise statement pages lengthy typewritten lengthy sisted of and the is- where the statement authority, more discussion and citation clearly identified. See Pa. sues were not commonly appellate found within an brief. 1925(b)(4) and comment to section R.A.P. Despite apparent impropriety, neither the waiver). (b)(4) findings (requirements objected trial court Commonwealth nor the Therefore, we will address the issues raised. forth, clearly unlike and the issues are set (2) merit; V. TRIAL WAS COUNSEL ALSO ble that counsel’s action or inac- INEFFECTIVE FOR FAILING strategic tion had no basis de- reasonable TO OBJECT TO THE interests; COURT’S signed to effectuate his client’s CIRCUMSTANTIAL EVI- prejudice, to the extent that there DENCE JURY INSTRUCTION probability is a reasonable the out- WHICH ACTUALLY INVITED proceedings come of the would have been THE JURY TO THE USE EVI- different if not for counsel’s error. Com- THE DENCE OF HOST OF Natividad, monwealth v. 595 Pa. OTHER SEX CRIMES CUMU- (2007). A.2d petitioner must LATIVELY AND AS PROPEN- satisfy prongs all three of this test SITY EVIDENCE? Id.; obtain relief under the PCRA. Com- VI. TRIAL WAS COUNSEL INEF- Basemore, monwealth v. FECTIVE FOR FAILING TO (2000). n. 738 n. 23 RAISE AN OBJECTION TO ¶ 9 willWe address Williams’ first three THE COURT’S JURY IN- together, they closely issues are related. STRUCTIONS THAT POSI- Together, these issues raise con- TIONED THE CASE SO THAT tentions that his trial counsel was ineffec- THE JURY WOULD TO HAVE failing lodge proper objections tive for DETERMINE WHO BE- TO to the trial court decision to allow the LIEVE-THEREBY A PLACING hear an of one of the child BURDEN OF BEING BE- (“T.B.”) victim’s testimony during its LIEVED ON TES- [WILLIAMS’] deliberations. Williams’ trial counsel ob- TIMONY AND HIS DEFENSE- jected allowing to hear the
AND ALSO DEPRIVING HIM *6 audiotape grounds doing on the so OF REASONABLE DOUBTS TO jury feeling pressured would leave the to HE WHICH WAS ENTITLED N.T., resolve the matter that evening. UNDER THE FEDERAL CON- 10/11/03, at 122-124. trial The court de- STITUTION? objection. nied the Appellant’s Brief at 9.2 ¶ ¶ 10 Williams claims that his coun- 7 The standard of review for a PCRA (re: objection single pressure sel’s to rush court’s order is whether the determination jurors) entirely inadequate. the PCRA court was In- supported by stead, evidence of record legal and is free of Williams contends that trial counsel Reaves, error. Commonwealth v. objected 592 Pa. should have playback to the 134, 141-42, (2007). 1119, 923 A.2d audiotape grounds on the that it violat- The findings PCRA court’s (1) will not be rights ed his under the Sixth Amend- appeal disturbed on unless there is no ment to the United States Constitution support for findings in the certified I, § Pennsylvania and Article 9 of the Con- Carr, record. Commonwealth v. 768 A.2d by stitution to represented be counsel at 1164, 1166(Pa.Super.2001). every stage proceed- critical of criminal (2)
¶
ings,
rights under
the Due Process
8 To be entitled to relief under the
Clause of the United States Constitution
PCRA on a claim of ineffective assistance
(1)
counsel,
I, §
petitioner
Pennsylvania
and Article
9 of the
Con-
prove:
must
underlying legal
argua-
every
claim is of
stitution to be
at
critical
appeal
properly
2. The direct
in this case
decided
are
was
the ineffectiveness claims
raised
subsequent
filing
petition
to the
v.
of a PCRA
and
within the context
Grant,
48,
(2002)
appeal.
572 Pa.
so that
could not have been raised on direct
(3)
mandating
se
automatic re
stage
proceedings;
prejudice per
of criminal
Rule
602(A)
Pennsylvania
adversary system
Rules of Crimi-
“the
[is]
versal because
(4)
646(B)
Procedure,
Rule
of the
nal
unreliable.” Roe v. Flores-
presumptively
Procedure.
Pennsylvania
470, 483,
1029,
Rules of Criminal
120 S.Ct.
Ortega, 528 U.S.
arguments
(2000)
Cronic,
will address these
turn.
We
(quoting
¶
report-
court
ny
by
read back to them the
17 The learned dissent contends
compel
two cases
a different result here.
Supreme
er. The
Court took no issue with
Feliciano,
First, in Commonwealth v.
decision,
in the
stating that the “if[ ]
this
that a
(Pa.Super.2005),
A.2d 901
we ruled
discretion,
of the court’s
a review
exercise
deprived
right
not
of his
defendant was
allowed,
must
testimony
is
such review
notify
the trial court failed to
counsel when
court,
parties
be conducted before
juror
granted
counsel that a
had been
Id. at
and counsel.”
Id. at 904.
short break from deliberations.
ap-
described this
Supreme
decision,
noted that
reaching
In
we
pres-
court in the
proach (reading
open
“jury deliberations have been viewed as
counsel)
parties
as the
ence
stages
right
critical
to which the
to counsel
for read
of trial
“proper procedure”
backs
stages
attaches.” Id. The critical
testimony.
Id.
Feliciano,
explained in
deliberation as
Contrary
analysis
to the astute
however, are those occasions when commu-
dissent,
inap-
we find Peterman to be
the trial court and the
nications between
First,
for at least two reasons.
posite here
jury during its deliberations become neces-
allege
in Peterman did not
the defendant
sary, including instances which the
violation of his
to counsel under
requests, or considers itself
questions,
has
Pennsylvania
either the United States or
See, e.g.,
O’Leary,
Siverson v.
deadlocked.
result,
As a
in Peterman
Constitutions.
(7th Cir.1985) (viola-
764 F.2d
nor even
our
Court neither found
right to counsel
tion of Sixth Amendment
a read back of trial
discussed whether
trial
left the court-
appointed
when
counsel
stage”
a “critical
of criminal
jury retired and did not
house when the
proceedings.6
throughout during jury delibera-
return
verdict).
¶20
or the return of the
No
Second,
tions
judice does
the case sub
case,
as trial
such issue exists Williams’
of trial
not involve a read back
counsel was available and did consult with
thus the trial
by
reporter,
a court
jury asked for a
the trial court when the
proce-
“proper
court’s failure to abide
testimony.
replay
of T.B.’s
of no issue
dure” described
Peterman is
Instead,
trial court
here.
this case the
Second, in
v. Peter
man,
selected evi-
specifically
our
decided to allow
Cir.1989) (counsel
(6th
have found no
1219-20
6. We note that most courts
failing
object
back of
to read
in connection with
ineffective
constitutional deformities
absence);
but see
in his
outside of coun
read backs of
Williams,
at *3
People
1281 (the rights stages dence trial of T.B. in audio- at critical counsel form) tape provided to be proceedings criminal were violated.
its review
its deliberations. As dis-
right
constitutional
Williams’
Opinion,
cussed later
this action did
present
646,
not violate Pa.R.Crim.P.
which gov-
permitted
erns what materials are
to be
¶
trial
23 Williams contends
possession
of the jury during its delib-
preserve by objection
counsel also failed to
such,
erations. As
we ascertain no basis
rights
present
his constitutional
to be
on which to conclude that Williams was
every critical stage
proceed
of criminal
deprived of counsel at
stage
a critical
ings.
Supreme
The United States
proceedings
his criminal
or that the trial
has ruled that the Due
Process Clause
court’s decision to allow the
to hear
the Fourteenth Amendment to the U.S.
of T.B.’s
so taint-
accused,
requires
Constitution7
that an
ed
trial that
Williams’
he is entitled to a
“even
situations where the defendant is
finding
prejudice per
se under Cronie.
actually confronting
witnesses or evi
Finally,
21
we find additional support
him,”
against
dence
has
constitutional
for this conclusion in our Supreme Court’s
right
present
person
“to be
in his own
decision in Commonwealth
Bango,
v.
560
relation,
presence
whenever his
has a
rea
(1999).
84,
Pa.
In Bango, at
substantial,
sonably
to the fullness of his
prosecution
introduced into evi- opportunity to defend against
charge.”
dence tape-recorded telephone conversa-
Massachusetts,
Snyder
97,
v.
291 U.S.
tions of seventeen
people
different
discuss- 105-06,
330,
54 S.Ct.
S.Ct.
conveyed
information
the extent that a
the content of the
presence
defendant’s
“to
such,
be thwarted
we discern no basis
just hearing
jury.
fair and
would
As
Stincer,
at
107
482 U.S.
that Williams’
upon
his absence.”
which to conclude
at
Snyder, 291 U.S.
(quoting
reasonably
S.Ct. 2658
sub-
would have had a
presence
330).
upon
Based
this stan-
54 S.Ct.
ability
to defend
stantial effect on
dard,
Supreme
in Stincer the U.S.
Court
he was on
charges
for which
against
a
Court
reversed
decision
trial.
that a defendant’s
Kentucky finding
¶26
consistent
This determination is
preliminary
presence was critical at
States
decisions of the United
with two
competence of two
hearing evaluating the
the District of Colum
Appeals
testify at trial.
Id. at
young girls to
Holton,
In
v.
bia Circuit.
United States
(“All
instead,
questions,
107
2658
S.Ct.
(D.C.Cir.1997), the Court of
ified that his constitutional appeal tention on jurors when at all rights present process due during their de- listened proceedings stages of the criminal critical contributed in would not have liberations to be meritless. were violated proceedings. any way to the fairness of present during note that Williams was We of Pa.R.Crim.P. Violation testimony at trial and his counsel T.B.’s 602(A) provides 28 Pa.R.Crim.P. opportu- a full and fair provided present be defendant shall “[t]he During the witness. nity to cross-examine 602(A) trial.” Rule stage of the every jurors heard audiotape, playback for a defen an even broader provides testimony, recording verbatim than do our at trial counsel, dant to be defendant nor his and neither the since, constitutions, federal have state and they present, if had been would even 602(A), We address the trial stage trial....” Federal to Pa.R.Crim.P. Similar 602(A) case Rule in this violation of provides that court's Procedure Rule of Criminal every present ... at hereinbelow. defendant shall "[t]he *11 above, Instead, presence discussed the constitutional of the of Williams. present only stages extends where jury merely recording heard a of verbatim presence is “critical” to the outcome of the exactly transpired open what court in 602(A) trial. requires Rule the defen- Moreover, in presence. addition trial, every stage dant’s at testimony to hearing again, T.B.’s direct qualification. without jury again also heard her cross-exami- (which ¶29 nation Williams’ trial counsel The trial court’s failure to have Williams alleged while the was Williams has not to have been in- played for the constituted a violation adequate any way). or ineffective in As 602(A). of Rule In opinion, such, its written any did not hear accusations trial court admits as much: language “This testimony place that did not take 602(A) appears Rule encompass [of ] all open court—and Williams was not accused stages trial, including stages non-critical anything secret. such as the submission tape-recorded ¶ Moreover, jury’s verdict reflects during delibera- prejudice no to Williams. The tions.” Trial Opinion at 15. replayed of T.B. for the included a ¶ 30 The trial grant court refused to range wide against accusations Williams
Williams new trial based on the violation victims, involving all of the child including 602(A) of Rule because it found that the N.T., 10/9/02, 270, rape, her digital pen- failure prejudicial was not to Williams. In N.B., etration of id. at forced oral sex appellate brief, Williams does not di D.B., by N.B. and id. and forced rect us to authority holding that non- T.B., N.B., oral sex on D.B. and S.P. Id. at constitutional violations of Rule 602 are verdict, however, 266-70. The establishes se, prejudicial per and we are not aware of not adopt did T.B.’s testimo- any such authority. result, As a we will Instead, ny without reflection. the verdict consider whether the trial court’s violation jury carefully shows that the considered all 602(A) of Rule here constituted harmless presented, evidence including error, which our Court has de any wrongdoing, Williams’ denials of it fined as follows: may “[A]n error be harm acquitted charges, Williams on various in- less properly where the admitted evidence cluding attempted rape against S.P. and guilt is so overwhelming preju and the aggravated against indecent assault both dicial effect of insignificant the error is so N.T., 10/15/02, D.B. and C.N. at 4-10. by comparison that it beyond is clear ¶ 33 Rather than reflecting prejudice reasonable doubt that the error could not against listening have contributed Williams as a result of to the verdict.” Com Strong, time, monwealth v. T.B.’s for a second A.2d (quoting jury’s carefully Common verdict shows that it con- Story, wealth v. weighed sidered and all of the evidence for (1978)). 155, 166 specific charge against each each spe- cific victim. Based on our careful review brief, In his appellate ar- record, evidentiary we are convinced gues allowing the audiotape to be specific convicted Williams on replayed in the deliberation room was charges upon compelling based testi- prejudicial public because “the victims, mony young of all of the and did ceased” and he being was instead “now place any weight undue on the testimo- Appellant’s accused in secret.” Brief at result, disagree. ny 26. We of T.B. As a we conclude that did not hear private, new or different out violation of Rule court’s *12 by hearing, in trial as taken down ings that a or error and this case was harmless added). a prejudice (emphasis no as result. reporter.” suffered a court Williams Canales, Moreover, in v. 646(B) (4) Violation of Pa.R.Crim.P. (1973), 422, A.2d 572 our Su- 454 Pa. 311 646(B) ¶ fol- provides as for the explained 34 Pa.R.Crim.P the reason preme Court lows: tran- to the trial prohibition regarding 111410):
(B) (Rule deliberations, During shall scripts in Rule 646 permitted be to have: not sending any out of 1114 Rule forbids (1) testimony; transcript any trial a of transcript of the trial portion (2) or otherwise copy any a written 1114 was jury. Even before Rule defendant; by confession recorded Ware, 137 v. adopted, Commonwealth (3) information; copy a of the 806, (1890), said 20 A. 808 (4) ‘(t)he instructions. written a of the sending part out of room is without ¶ that allow contends 35 Williams (was) palpable error.’ precedent and audiotape an of trial ing to listen prohibition is that The reason for the testimony during deliberations violates in the room 646(B)(l)’s against per prohibition Rule portion physical of a embodiment transcript have “a mitting the testimony in written form words, the trial testimony.”9 In other any trial need not argues transcript increasing that a may have the effect of Williams purposes form for of Rule written accept will probability 646(B), in fact a that an is testimony as credible. by the rule.
type transcript prohibited 427-28, (emphasis A.2d at 575 Id. 311 one, for our important The issue is an added). audiotape is question, an Without that a violation of Supreme Court has held embodiment ... in written “physical not a 646(B) language of Rule is express testimony. of trial form” and constitutes automatic reversible error ¶ This decision Common- Court’s trial. Commonwealth grounds for a new Gladden, 434, 665 Pa.Super. wealth v. 173, 178-79, 709 A.2d Karaffa, v. 551 Pa. instructive A.2d 1201 also 887, (holding that a violation is Gladden, grant- trial court In context. in and it is this “intrinsically prejudicial jury’s request during deliberations ed the trinsic, requires prejudice unfair read the defendant’s confession to have trial”). granting a new This reporter. them the court back to ed.) (8th Dictionary 36 Black’s Law Rule 1114: found no violation of Court handwritten, “transcript” “[a] defines case, however, does [Rule 1114] In this testimony given typed copy or printed, above: the apply not as stated proceed- ... official record of orally Collins, 45, A.2d v. direct wealth raised this same issue on 9. (2005) (ineffectiveness appeal, panel of this Court found the raises a dis- but failed had waived as trial counsel purposes issue been PCRA legal ground for tinct 646(B). object upon Rule Common- based although such claim and must be treated as Williams, 830 EDA 829 and wealth on direct may same reasons discussed fail for A.2d unpublished memorandum appeal). 19, 2004). August In (Pa.Super. filed here, Williams petition at issue the PCRA Supreme and re-num- Court revised 10. but in the context of raises the same issue April effective Rule 1114 as Rule bered claim, permits us re- which ineffectiveness 2001. at this time. See Common- view the issue added) J., concurring confession, (Popovich, given part phasis a written dissenting). of the other transcript, by Rule things specifically prohibited decision response In to this Court’s Therefore, inapplica- Rule 1114 is Foster, in 1995 the jury requests ble. that record- ‘When (now 646(B)(2)) Rule 1114 Rule amended *13 testimony it refresh its ed be read to to receiving copy “a prohibit jury the from to court’s memory, it rests within the trial con- or otherwise recorded written re- grant deny discretion to such Importantly, the defendant.” fession quest.’ the did not also amend Supreme the Court (now 646(B)(1)) of Rule 1114 Rule (quoting portion Id. at 1205 Commonwealth v. Johnson, in transcripts trial the deliber- Pa.Super. prohibiting 421 618 A.2d room, (1992), affirmed, light of cases like 538 Pa. 646 A.2d ations even Canales, (1994)), the term grounds, supra, interpreting overruled on other Archer, to a “transcript” Commonwealth v. under the rule refer of trial (Pa.Super.1998). reporter “physical While a court embodiment” Canales, reading jury trial “in 454 Pa. at is dis- written form.” result, ways audiotape, similar in some to an it A.2d at 575. As a we Supreme does constitute a word-for-word must conclude that verbatim “transcript” recitation of trial audible non- intends the term to refer to form, written which we concluded Glad- the memorialization of trial then-applicable den did not violate the imiten Even if we were inclined to form. rule. agree that there is no substantive differ- transcript and an ence between written Foster, And in Commonwealth v. presentation of the tes- audiotape verbatim Pa.Super. 624 A.2d this trial, by the letter timony at we are bound equate videotaped Court refused to confes- audiotape an Accordingly, of the law. does Noting sions with written confessions. “transcript” purposes not constitute a only prohibited that Rule 1114 646(B)(1). of Rule confessions, receiving from written we re- fused to find a violation of rule when that the Although we conclude the trial court allowed watch trial court’s decision to allow videotape: confession on T.B.’s trial testi listen to the tempting
It is
ar-
accept Appellant’s
mony did not constitute
violation
light
gument
technological
ad-
646(B)(1), our
express language of Rule
vances which have occurred since the
inquiry is not at
end. Our
Supreme Court fashioned the rule. To
items not
Court has indicated that when
so, however,
do
violate the well-
would
are sent
prohibited by Rule 646
expressly
statutory
rule of
settled
construction
deliberations,
jury during
we
out with
the letter of the law cannot be
the trial court
must determine whether
ignored.
by doing so. Com
abused its discretion
(“I
222, 232-33,
149;
Riggins,
am
478 Pa.
Id. at
see also id. at 154
monwealth
(1978).
In a more recent
expressly
convinced
Rules Committee
case,
inquiry
ruled that
recordings
per-
included those written
of a
this Court
statements,
i.e.,
provid
transcripts
requires
us to determine whether
son’s
prejudicial:
confessions,
ing
charac-
the item to
because their
written
importance
“If there is a likelihood
markedly
videotaped
different from
ter is
confessions).”) (em-
skewed,
may
(and
prejudice
will be
confessions
oral
evidence
found;
not,
per
charged
if
structed the
that Williams “is
prejudice
there is no
se and the error is harmless.” Common-
committing
specific
these
crimes
1089, 1103
Dupre,
wealth v.
and at differ-
against different individuals
denied,
(Pa.Super.2005), appeal
ent
and on a different number of
times
(2005).
694,
¶ mits court’s instruc- Viewing the trial that likely committed others and to have whole, no merit tions as a we find such crimes is in- the fact that he committed contentions. The trial court Williams’ BY Ap- DISSENTING OPINION that he committed others.” evidence FITZGERALD, J.: pellant’s Brief depart from the respectfully 1 I must argu- 46 We find no merit to Williams’ Primarily, analysis. majority’s thoughtful the evi- upon ment. Based our review of analysis of whether depart I record, dentiary the Commonwealth intro- stage,” a “critical deliberations constitute each competent support duced evidence to counsel’s every crime for which our testimony. I believe playback convicted, and Williams did not contest the accepted that generally courts have sufficiency of the evidence in his direct stage. a critical deliberations constitute Moreover, above, as noted appeal. Feliciano, See, e.g., Commonwealth v. jurors trial court to render instructed (‘We do not (Pa.Super.2005) A.2d separate every charge verdicts on with delibera- disagree Appellant with victim, respect every jury’s and the stages critical tions have been viewed as verdict reflects that it understood and attaches”) (cit- right to counsel which the such, complied that instruction. As D’Amato, ing Commonwealth v. Williams offers no basis on which to con- (2004)). As him multi- clude convicted *15 such, Appellant I that did have would find ple upon support- offenses based evidence right to counsel the delibera- ing just charges. convictions on one or two tions, note, Appellant was actu- although, I result, a in trial As we find no error ally represented counsel. charge court’s on circumstantial evidence. ¶ Nonetheless, emphasize I that appeal, 47 For his last issue on jury makes a right to counsel when the argues trial Williams counsel was ineffec- request lightly, partic should not be taken failing object tive for to the trial court’s ularly wishes to review tes when jury instructions regarding how to resolve in timony again. present Counsel must be testimony. recently conflicts in the We resulting order to ensure that “the re rejected substantially argument a identical emphasis on place ‘does not undue view[ ] Kerrigan, Commonwealth v. 920 A.2d ” testimony.’ one Commonwealth witness’ (Pa.Super.2007), 197-198 and consider Small, 423, 438, that dispositive decision to be of Williams’ v. Pe (quoting argument appeal on here. con- terman, applicability Kerrigan cedes the of this (1968)). is Normally, purpose appellate case and states in his brief that when, trial court’s upon achieved only “preserve the issue here he raises request reporter a for the court granting eligibility.” it corpus for federal habeas transcript, a of the portion to read back Brief at 40. Appellant’s request open is fulfilled in court with such the Peterman parties present. both As ¶48 Finding no basis on which to dis- Court stated: court, findings of the trial we turb the jury, in order to refresh
affirm the PCRA order dated October
But where a
recollection,
reading
requests
their
actually given
testimony
portion
¶ 49
affirmed. Jurisdiction relin-
Order
trial,
matter within the
at the
it is a
quished.
trial court whether to
discretion of the
If the trial court
grant
request.
such
Dissenting
files a
Fitzgerald,
J.
the review of
request,
grant
does
Opinion.
open
must be conducted in
potential
concern over
inaccuracies or un
presence
parties
Nonetheless,
court
in the
necessary emphasis.
they do
[I]f,
their
counsel....
the exercise of
completely.
not eliminate those concerns
discretion,
the court’s
review testi- Recording
portions
of certain
allowed,
mony is
hear,
such review must be may
garbled or
difficult to
court,
parties
conducted before the
temporary
recording may
failure
and counsel.
cause the loss of some of the
on
Moreover,
playback.
just
as counsel
Peterman,
631-32, 244
430 Pa. at
A.2d at
present
should be
to ensure that “undue
added).
(emphasis
presence
Counsel’s
emphasis”
placed
is not
on a witness’s
alia,
ensure,
required
is
order to
inter
testimony by
reporter,
the court or court
I
accurate,
reading
and that the
present
conclude that counsel must also be
reporter
court
emphasize any
does not
operator,
to ensure that the audio
whether
particular portion
transcript.
See
unintentional,
intentional or
does not em
(noting
id. at
size, however, tapes and tran- Bango conver-
scripts at issue involved