*1
Viewing the record in the light most favorable to the Commonwealth, there is sufficient evidence to support conviction of burglary as a degree first felony. I Accordingly, respectfully dissent.
Submitted Nov. 2009.
Decided Nov. 2010. notes, Although majority us, as the holding the Nixon is not before it finding adaptation states "a substantially more reasonable in already circumstances in which an adapted structure lacks features supporting overnight continuous accommodation for temporary some period, than in a situation in which yet the structure has not been adapted overnight for Majority Op., accommodation....” majority at 204. If the acknowledges building necessary without adapted accommodation, utilities can overnight be for how is it that a water, heat, fully-enclosed building with electricity cannot be found bright-line situation, to be so? While a inappropriate rule is in this it is not unreasonable for a fact-finder building to conclude a with four walls, roof, windows, doors, adapted overnight utilities is accommodation, though even yet no one has moved in. *5 Gelman, for Philadelphia, Appellant. E. Norris Green, F.X. Stesis, Reilly, Michael Gary George John Louis Media, Office, for Attorney’s Appel- County District Delaware lant. TODD, SAYLOR, EAKIN, BAER,
CASTILLE, C.J., MELVIN, McCAFFERY, JJ. ORIE
OPINION ORIE MELVIN. Justice clarify of to whether crimi- granted appeal
We allowance has be present deliberating nal to while right defendant testimony listen to trial and whether jurors audio-recorded testimony review such within the jurors permitted are room. issues arose jury confines of deliberation These on Williams, argued collateral review when Lucillious Appellant, object failing that his trial counsel was ineffective for when jury trial court to listen to an audio recording allowed Appel- in the without of a victim’s room rape Superior lant or his The Court found that attorney present. 602(A) Pa.R.Crim.P. but concluded procedure this violated addition, Superior that the error was harmless.1 In Court recording that an of a witness’s trial audiotaped held testimo- transcript not of ny purposes does constitute for Pa. 646(B)(1), and, thus, counsel not be R.Crim.P. could deemed permitting ineffective listen to review, affirm the order Upon the deliberation room.2 we of Superior Court. 602(A) provides: 1. Pa.R.Crim.P. every including present stage defendant the trial shall be of verdict, impaneling of the return and at of the sentence, by imposition except provided of as otherwise this rule. preclude proceeding cause
The defendant’s absence without
shall not
imposition
including
and the
with the
the return
verdict
sentence.
deliberations,
646(B)(1)
during
are
2. Pa.R.Crim.P.
states
not
any
testimony."
permitted
transcript
have
“a
15, 2002,
On
a jury
October
convicted
of one count
minors,
rape,
corruption
five counts of
eleven counts of
*6
intercourse,
involuntary deviate sexual
and fourteen counts of
indecent
on testimony
repeatedly
assault based
that he
mo-
six
serving
babysitter.
lested
children while
as their
Appel-
twenty-two
lant was
to
forty-four years
impris-
sentenced
to
24,
onment on
February
The
Court affirmed
Superior
sentence,
judgment
the
and we
review.
denied
Common-
Williams,
v.
wealth
The Superior Court found that the trial court violated 602(A) Pa.R.Crim.P. by permitting jury listen to the audiotape Appellant’s outside of presence because the rule states that defendant shall be present every stage “[t]he however, trial.” harmless, The error was deemed because heard a verbatim recording of the witness’s testimony cross-examination, on direct and Appellant and neither nor his “alter, modify, counsel would have been able to or improve if they present content” had been audiotape when the Moreover, for played Id. at 1282. jury. Superior Court reasoned that did not prejudice suffer be- crimes, he of multiple cause was acquitted supported which all weighed “carefully that the considered inference Id. at 1283. specific charge.” of the evidence each audiotape inside playing also panel found not violate the dictates Pa.R.Crim.P. jury room did transcripts 646(B)(1), prohibits jurors possessing which Citing Commonwealth testimony during of trial deliberations. (1973), Canales, where this 311 A.2d forbidden in the transcripts are explained Court portion of a physical room because “the embodiment might written form” convince true, Court concluded accept Superior as Ac- recordings. does apply audiotaped Rule 646 not inef- second panel Appellant’s determined cordingly, claim merit. arguable fective-assistance-of-counsel lacked *7 the basis Fitzgerald Former James dissented on Justice herein violated our procedure employed pronounce- Peterman, 627, Pa. 244 A.2d ment in v. 430 Commonwealth 723, (1968), a a of trial requests reading 726 when testimony open “the must be conducted in testimony, review of presence parties court in the of and their counsel.” [the] Rule not Although expressly pro- he conceded that 646 does jurors during from reevaluating audiotaped testimony hibit deliberations, their former Justice maintained any cannot type private review of recorded will they give because there is a risk it excessive always Thus, dissent, to the “does weight. according defendant during have a to be and to counsel right present, present, have a whether in written or jury, recitation of Williams, at audio form.” 959 A.2d a for allowance of and Appellant petition appeal, filed we review granted Superior to determine whether Court of his ineffectiveness claims. “In order to correctly disposed relief, be must a eligible prove by prepon for PCRA the evidence that his conviction or sentence result derance of more found ed from one or of the enumerated circumstances 9543(a)(2).” Steele, § 42 v. Pa. Pa.C.S. Commonwealth 599
605
(2008).3
341,
786,
appellate
961 A.2d
review of
Ordinarily,
796
order
on the
denying post-conviction
relief focuses
PCRA
law,
court’s factual
and conclusions
which are
findings
of
support
examined for record
and legal error. Commonwealth
Weiss,
573,
(2009).
604 Pa.
986
A.2d 808
Our
of
scope
review is limited
the PCRA
and
findings
court’s
the evi-
record,
of
in the light
dence
viewed
most favorable to the
Sam,
523,
597 Pa.
prevailing party. Commonwealth v.
952
(2008). Here, however,
A.2d 565
inquiry
as our
centers upon
Superior
interpretation
rules,
Court’s
of
a
procedural
novo,
our
purely legal question,
standard of review is de
scope
Patton,
of
plenary.
our
review is
Commonwealth v.
604
(2009).
307,
Pa.
In order to on a claim ineffective prevail assis counsel, petitioner tance a demonstrate PCRA must that: (1) (2) merit; issue has underlying arguable course of pursued conduct counsel did not some by have reasonable interests; designed basis to effectuate the petitioner’s petitioner actual prejudice suffered as result of counsel’s Williams, performance. deficient Commonwealth v. (2009). Prejudice when “there is shown that, probability reasonable but unprofession for counsel’s errors,
al the result of the would have been proceeding (Pa. Miller, different.” Commonwealth v. 987 A.2d 2009) (quoting 668, 694, Strickland v. Washington, U.S. (1984)). 104 S.Ct. to satisfy any L.Ed.2d Failure prong rejection this test necessitates the petitioner’s *8 Williams, claim. A.2d at 520.
Appellant initially contends that trial counsel should objected have when judge the announced that the jury could review the audiotaped testimony in because Pa. private gives R.Crim.P. 602 a criminal unqualified defendant an right present every to be at stage of the trial. he Although Here, Appellant eligible post-conviction that he is asserts relief 9543(a)(2)(h), pursuant § to 42 Pa.C.S. which states: "Ineffective assis- which, case, particular tance of the counsel in circumstances of the so truth-determining process adjudication undermined the that no reliable guilt place.” or have of innocence could taken room, enter Appel- he to the right had no concedes trial by the court employed that the argues procedure lant of stage the review constituted the violated Rule because trial, and, therefore, Appellant should afforded the court have that the by ordering tape the event opportunity witness view, Appellant in with this open court. Consistent played be failing no basis for that counsel had reasonable suggests of unsupervised and maintains that the examination the object inherently because the prejudicial recorded tape control the and an unknown audio jury had of both and could “body language expressions whose facial technician to the brief conveyed opinion jury.” Appellant’s well have his at 22. text our with the of Pa.R.A.P. which begin analysis
We stage be present every that the defendant “shall provides and or prohibits judge trying sentencing the trial” in unless is absent the defendant absentia the defendant cause. Pennsylvania without Rules Criminal Proce- are to be with the rules of dure construed accordance construction, ascertain statutory goal where is to intent of the drafters. See Pa.R.Crim.P. 101(C); effectuate 1921(a). bar, § the case at parties 1 Pa.C.S. In agree court all of the playback audiotaped trial, and, result, as a stage constituted a concur Rule 602 was violated. We with this assessment. The plainly right rule states that the defendant has the observe trial, every phase including of the impaneling verdict, reading and the and that right unquestionably deliberating jury permitted when a to re-examine a applies find that testimony. Accordingly, Appel- witness’s we lant’s first issue merit. arguable has
Nevertheless, counsel did not assuming arguendo that have failing object, a reasonable basis for cannot on his ineffectiveness claim because he cannot show prevail indeed, actual he admits there is no evidence that prejudice; the technician who for the influenced the played tape however, Appellant, may presume verdict. maintains that we mere pres this scenario because technician’s prejudice
607 ence in the room delibera principle jury violated the tions are in total secrecy. According to be conducted in Appellant, temporary of an presence outsider room, even for the limited of an is purpose playing audiotape, vein, sufficient for a new In a he grounds trial. similar asserts that the was procedure employed preju herein presumptively in Common dicial it pronouncement because violated our Peterman, wealth v. supra, must be reviewed in court with open parties and their counsel present in to ensure order that the is presented in impartial a fair and manner. outset,
At the
we note
Appellant’s
blurs
argument
the distinction between the
test
ineffectiveness derived
v. Washington, supra,
Strickland
and the standard
Cronic,
648,
articulated in United States v.
466
104 S.Ct.
U.S.
(1984).
Strickland,
2039,
80 L.Ed.2d
a defendant
Under
must
actual prejudice by showing
demonstrate
that his attor
ney’s performance
objective
“fell below
of
standard
reason
ableness” and that counsel’s
outcome
missteps affected the
of
Strickland,
688,
proceeding.4
Appellant Strickland in case prejudice presumed he insinuates should be this no because there is record of what occurred while the was testimony.6 at reviewing audiotaped Appellant’s See brief (“[N]o 22 happened one knows what in the deliberation room and the were not there. parties judge because Arguments disprove cannot be made that establish or actual unavailable.”). because are This prejudice, argument facts misguided clearly because trial counsel’s actions do not fall Cronic, only within the ambit of which when there has applies subject prosecution’s been a total failure to to mean case Nixon, 175, ingful v. testing. adversarial See Florida 543 U.S. (the 189,125 551, 160 S.Ct. L.Ed.2d 565 presumption Reaves, (2007), 5. Pa. A.2d In Commonwealth observed, presumed prejudice exception this "The to Strickland Court apply delineated has there [that ] was in Cronic been found where counsel, with was an actual or constructive denial of the state interfered assistance, had counsel’s or counsel an actual conflict of interest.” Furthermore, Pennsylvania, presume prejudice in courts will if an negligent attorney’s prevented appellate conduct review of all claims appeal. wished the client to raise on Id. arguing Appellant passing makes reference Cronic in private prejudi- inherently the recorded examination of Appellant’s 22-23. cial. See brief at “reserved prejudice described Cronic is for situations which entirely counsel has failed to function as client’s Steele, advocate”); also Commonwealth v. see (2008). The record establishes that counsel vigorously argued of sexual abuse and disputed allegations charges, that the victims fabricated the inconsis- citing prior statements, tent conflicting testimony, physical and a lack 10/11/02, Trial, evidence to their See N.T. support claims. 11-20. lodge objection As counsel’s failure to a Rule 602 did unreliable, not render the adversarial process presumptively case, Cronic has on bearing no this must prejudice demonstrate actual with consistent Strickland and Pierce,7 *11 determined that the frame
Having
Strickland/Pierce
work applies,
apparent
it is
that Appellant cannot establish a
right to
Absent
relief.
evidence that the technician influenced
the
through body
comments,
verdict
language, inappropriate
misconduct,
or other
cannot
meet his burden of
proof under Strickland. We are also not
that a
persuaded
Peterman,
new trial is warranted under Commonwealth v.
supra. The defendant
was on
for
Peterman
criminal
the jury,
homicide when
which had been deliberating for
hours,
several
testimony
asked the
to have the trial
judge
of a
prosecution witness read to them. The judge granted the
the
request and had
witness’s
read to
testimony
entire
the
test,
Although
purported
apply
it
Superior
the
StricklandJPierce
analysis,
Court
a
improper given
conducted
harmless error
which was
Williams,
procedural
posture of
See
this case.
Commonwealth v.
1272,
(Pa.Super.2008).
959 A.2d
The harmless error standard
typically applies
appeal,
to claims of
error
trial court
raised on direct
Commonwealth,
proof
and the burden of
is on the
must
which
demon-
beyond
strate
a reasonable doubt
error did not affect the
Howard,
verdict. See Commonwealth v.
538 Pa.
(1994).
contrast,
In
an ineffectiveness claim
shifts
focus to
Strickland,
stewardship,
counsel’s
and under
the defendant has the
showing
burden of
performance
counsel’s
“had an actual adverse
Howard,
proceedings.”
effect on the outcome of the
This Court heard the and determined that synopsis judge’s highlighted trial was warranted because the inconsistencies in the witness’s undermined prosecu- defendant’s claim of self-defense and bolstered the In conclu- killing. reaching tion’s of an intentional theory sion, judges we that trial have discre- principle re-affirmed as juries testimony, stating tion to allow reexamine trial follows:
A is to that the duty fully trial court’s insure facts of applicable instructed as the law to the adequately and, a trial a jury request the case when court refuses instructions, error. But additional such refusal is reversible recollection, where a in order to refresh jury, requests [its] at the reading portion testimony actually given *12 trial, it a matter within the discretion of the trial court is whether If the trial grant request. grant such court does request, testimony the the review of must be conducted and, court in the and their counsel open presence parties if the review not undue on place emphasis resultant does testimony, one reversible error committed. no is witnesses] Pa.Super. Bolger, [42 ]. See: Commonwealth court, However, the sends request jury, if the at the certain such jury testimony any out the the -witness would reversible error. See: Commonwealth v. constitute Ware, (1890). 465, A. The procedure Pa. proper if, and, for a its to the trial jury request judge is to address discretion, in the of the a review of testimo- exercise court’s allowed, ny is review must before such be conducted the court, counsel. parties
The purpose any requested testimony, review of obvious- ly, is to or dispel any uncertainty present confusion in the as to testimony they minds of the the actual heard trial____In during the of reviewing course of the matter testimony, it is the is the jury’s request upon which basis which a of the reading reporter’s back or a transcrip- *13 rule-based body to where it was free observe
testify public in a forum necessary every spectator, and the technician was language not to review additional jury attempt to ensure that the did There no indica- authorization. proper without jury, effect on the any had presence tion that the technician’s evidence any has not witnesses or as identified jury’s in the participated the technician establishing information, which or confidential deliberations disclosed evidentiary Appel- an hearing. Accordingly, would warrant has not claim fails because he lant’s first ineffectiveness of the a that the outcome probability demonstrated reasonable if had reviewed jury have been different not would in the room. tape deliberation The second for review concerns the presented issue facts of case. The application of Pa.R.Crim.P. 646 this provides rule as follows: Jury Permitted
Rule 646. Material in Possession of (A) may it exhibits retiring, jury take with such Upon judge proper, except as the trial as provided deems (B). paragraph
(B) deliberations, the not be During permitted shall have:
(1) transcript any testimony; a (2) any a written or otherwise recorded confession copy defendant; by the information; copy
.(4) written instructions.
(C) permitted shall be to have their notes for use during deliberations. afternoon, on a deliberating Friday
After for several hours communicating with the trial court and ulti- jury began mately audiotaped recording victim’s asked review one nobody present.” in the “with N.T. courtroom Trial, 10/11/02, at In the trial court instructed response, “in the play recording technician to the master delibera- [jurors listening while could] tion room so deliberate *14 the Id. tape privately.” Appellant’s objected solely counsel on the the feel return a jury might pressured basis that to overruled, and the day. objection verdict that same The was tape jury, was the which rendered its verdict the played following Tuesday. that the audio-
Appellant permitting jury contends to review recorded in testimony trial the deliberation room violated 646(B)(1) spirit recording of Pa.R.Crim.P. an audio because equivalent” Appellant’s “functional of a transcript. Peterman, brief at Citing argues 28. he that trial counsel requested should have that the be audiotape played open court to ensure that no one undue on placed emphasis any portion testimony. that had Appellant suggests counsel object no grounds reasonable basis for to on Rule failing and asserts that counsel’s was he prejudicial inaction because allowed deliberations to take in the of a place presence non- juror, jurors an thereby exposing to external influence that may have their guilt. affected determination of
Appellant also submits that permitting jury to deliber ate with a that recording non-exhibit contained a verbatim of a witness’s trial se testimony per prejudicial because the jury may placed have aspects undue on certain emphasis In argument, testimony. leveling this cites cases where this Court has observed that trial transcripts and written instructions be jury cannot entrusted to deliberating jurors they because tend to magnify significance those items and other that ignore matters warrant consideration. 1238, 1241 See Pa. Oleynik, Commonwealth 568 A.2d (1990) (“[T]he submission of written instructions would tend to encourage ignore the court’s instruction general them.”); and focus the written upon supplied instructions (1998) v. Karaffa, Commonwealth 551 Pa. 709 A.2d (same); Peterman, (if supra Commonwealth v. re quests reading any to refresh its recollec tion, the review must be in the open conducted court counsel); presence parties and their Commonwealth v. Small, (if requests A.2d 666 judge ensure testimony, of trial must reading excerpts). place emphasis particular does not undue on review not pre- 646 does counters Rule Commonwealth jurors listening during from audio-recorded clude refers to a written the term “transcript” deliberations because also audio disputes The Commonwealth document. the same as a written recording transcript should be treated designed that Rule 646 was because this Court has stated to “trial testi- unnecessary weight prevent giving Canales, in written form.” 311 A.2d at Consistent mony view, the trial with this the Commonwealth maintains *15 and the notion that appropriately court acted dismisses on may placed emphasis audiotaped testimony, have undue deliberated for several additional observing acquitted multiple and of crimes. hours essence, Appellant argues illogical In it is draw a recordings, between written and non-written while distinction Rule plain that the of 646 language the Commonwealth asserts case law conclusion. The support opposite and pertinent when statutory provide language rules of construction is free it is not to ambiguity, “clear and from all letter of be under its 1 disregarded pretext pursuing spirit.” 1921(b). § also must The rules state that words be Pa.C.S. to their common and “according approved usage” construed they have mean- “acquired peculiar appropriate unless and 1903(a); § 1 Pa.C.S. see also Commonwealth v. Jarow- ing.” (2009). ecki, Conversely, 985 A.2d if a unclear, criminal is must procedure rule of “courts consider as the object necessity various indicators of intent such and Sloan, rule and the to be 907 A.2d at mischief remedied.” 1921(c)). (citing § Pa.C.S. review, interpre- we with Commonwealth’s Upon agree 646(B)(1). in tation of Rule In its common usage legal “written, “transcript” typewrit- the word denotes a parlance, ten, legal or of a record or a student’s printed copy, especially Dictionary school record.” The American Heritage ed.1976). (New Language See English college also (7th ed.1999) (“A handwritten, Dictionary Black’s Law printed, or typed copy testimony given orally; esp., official record of proceedings a trial or as taken hearing, down aby reporter.”). court This interpretation is consistent with Canales, our opinion Commonwealth v. where supra, we characterized a written reproduction of a witness’s testimo- as a ny transcript clarified that Pa.R.Crim.P.
precursor to Rule prohibited jurors from possessing written copies of trial testimony because a tangible document “may have the effect of increasing probability that the jury will accept that testimony Hence, as credible.” Id. at 575. the Superior Court correctly found that audio-recorded testi- mony prohibited not under Rule 646. we Accordingly, affirm its determination that Appellant’s ineffective-assistance- of-counsel argument premised upon trial counsel’s failure to lodge objection Rule 646 lacks arguable merit.
Even if Appellant’s underlying claim had arguable merit, he would not be entitled to relief because he cannot i.e., demonstrate actual prejudice, that there is a reasonable probability that counsel’s actions affected the outcome of the proceeding. His argument the mere presence of the technician corrupted the verdict deficient, is clearly as is his contention that playing audio-recorded trial testimony in the jury room was se per prejudicial. As claim, to the latter we *16 observe that Oleynik, Peterman, Karaffa, and Small all deal exclusively with documents, written which are materially dif ferent from audiotapes. The use of transcripts during deliber ations potential creates problems they because can influence the verdict in ways. several For if example, transcripts are provided jurors to assist reviewing audiotaped conversa tion, there is an inherent danger jurors the rely will solely on the documents if the conversation is difficult to comprehend, thus their abandoning role as fact-finder and construing the as transcripts independent evidence of the recorded Holton, statements. See United States v. 116 F.3d (D.C.Cir.1997). There is also a possibility deliberating jurors will read the transcripts without simulta neously reviewing the audiotape the verify accuracy of the transcripts. Id. at 1541. Finally, some jurists contend that that contain conversations of recorded transcripts
providing the defendant is tantamount by made statements inculpatory during confession examine recorded allowing Bango, deliberations. See Commonwealth their J., 1070, 1075 (Nigro, dissenting). n. Appellant’s at these an issue None of considerations transcripts. reviewed Fur any the never trial because have been relative thermore, the should audiotaped in a it was recorded controlled to understand because ly easy encouraged and counsel were where the witness environment each without other. loudly clearly interrupting and speak Cir.1996) Howard, 80 (7th States v. F.3d United Cf. necessary were to review audio-recorded (transcripts deemed who often multiple featured individuals conversations Hence, typically the simultaneously). problems spoke not occur audio did here. transcripts recordings arise with and bar, deliberating the had been for In the case audiotaped recording when it asked to hear an several hours court, testimony. in its one victim’s complete discretion, to insulate granted request attempted by external the review in the conducting from influences As precaution, of the deliberation room. an additional privacy operated tape court instructed the technician who refrain to retain possession tape machine any jury. Appellant’s additional playing specula- about the are reliability purely concerns verdict tive, ignored there is that the technician as no indication directives, any with trial court’s discussed case members jury, any type inappropriate or other engaged Thus, room. inside deliberation cannot behavior stemming actual from trial counsel’s failure prejudice establish and no objection, to raise a Rule relief due. affirmed. Order CASTILLE, EAKIN, BAER, Justice Justices TODD
Chief join opinion. and McCAFFERY *17 concurring files a opinion. Justice SAYLOR
617 SAYLOR, concurring. Justice join
I
opinion,
for the final section in
majority
except
it
analyzes
which
whether
trial court’s decision to allow the
jury
audiotape
listen to the
deliberations was
during
preju-
603, 9
at
Opinion, op.
dicial. See
A.3d
623-24.
Majority
I have
that it
difficult
extremely
While
no doubt
would be
demonstrating
burden of
actual
carry
preju-
his
(and, indeed,
the majority
dice under the circumstances
had
in
already
prejudice
found that no
the context of
proved
claim,
621),
the Rule 602
see id. at
concern lies with the
my
may
that
be
as
possibility
suggesting
Court
understood
testimony
that
a
to listen to
permitting
jury
taped
during its
inherently
deliberations is less
than
it
problematic
allowing
view,
trial
In my
review
it would be best to resist
transcripts.
making any
that could
construed at
pronouncements
be so
this
juncture, both
it is a question
may implicate
because
that
complexities
scenarios
present
and varied
not reflected
case,1
doing
and because
so is not
strictly necessary
any
event, given the
was not
holding
Court’s
Rule 646
violated
and, hence, that
claim lacks
Appellant’s underlying
arguable
604,
merit. See id. at
wealth v.
or prejudice
reasonableness
the issues of
to reach
(declining
underlying
that his
to establish
failed
the defendant
where
Collins, 598
v.
merit); Commonwealth
arguable
claim was of
failure to
that a
(reciting
397, 410,
Pa.
rejec
requires
prongs
ineffectiveness
the three
satisfy any of
counsel).
of trial
assistance
of ineffective
of the claim
tion
v. ABRAHAM, Respondent. Joseph Pennsylvania. Supreme Court of 30, 2010. Nov.
ORDER PER CURIAM. 2010, the Petition NOW, November day this 30th
AND GRANTED, LIMITED TO the Appeal Allowance of for as to all remain- is DENIED forth below. Allocatur issues set are: issues, clarity, rephrased ing issues. — U.S. -,
(1) Whether,
Kentucky,
Padilla v.
light
(2010),
the distinction