Com. v. Byrd

• Decision Date: 30 October 1991
• Citation: 409 Pa.Super. 611,598 A.2d 1011
• Parties: COMMONWEALTH of Pennsylvania v. Haddrick BYRD, Appellant.
• Court: Pennsylvania Superior Court

Page 1011

598 A.2d 1011

409 Pa.Super. 611

COMMONWEALTH of Pennsylvania v. Haddrick BYRD, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 17, 1991.

Filed Oct. 30, 1991.

Joseph J. Hylan, Asst. Public Defender, Norristown, for appellant.

J. Allen Daringer, Asst. Dist. Atty., Royersford, for Com., appellee.

Before JOHNSON, FORD ELLIOTT and HESTER, JJ.

JOHNSON, Judge.

In February, 1990, a jury convicted Haddrick Byrd of kidnapping, assault, recklessly endangering another person, and possessing instruments of crime. Following denial of post-verdict motions, the Honorable Lawrence A. Brown sentenced Byrd to aggregate terms of five and one-half to eleven years' imprisonment, to be served concurrently with a pre-existing, unrelated life sentence.

Byrd, while an inmate at Graterford State Correctional Institution, took Irwin M. Schmuckler, principal of the Graterford School, as hostage, holding him for seven and one-half hours before releasing him unharmed. This prompted the filing of the charges underlying the judgments of sentence here on review.

On appeal, Byrd alleges error by the trial court in (a) refusing Byrd's request to play a videotape of the entire hostage situation to the jury; (b) denying a mistrial motion based upon alleged prosecutorial misconduct during the closing argument to the jury; and (c) submitting written definitions of the crimes charged to the jury, for their deliberation.

We find the first two issues to be without merit. However, inasmuch as the submission of written instructions to the jury is not consistent with our Supreme Court's mandate in Commonwealth v. Oleynik, 524 Pa. 41, 568 A.2d 1238 (1990), we are constrained to reverse judgment of sentence and remand for a new trial.

The most distinguished trial court, Judge Brown, declined to rule upon Byrd's third issue, regarding the submission of written instructions to the jury, on the basis that the issue had been waived. Judge Brown correctly points out that, normally, a party must specifically object to a charge when given at trial in order to preserve any claim of error for appellate review. Pa.R.A.P 302(b), Rogers v. Johnson & Johnson Products, Inc., 401 Pa.Super. 430, 585 A.2d 1004 (1990).

On the unique facts of this case, we believe the interest of justice compels the consideration of this claim. On February 26, 1990, the trial commenced before Judge Brown, with Byrd proceeding pro se. The Montgomery County Public Defender's Office was directed by the trial judge to assist Byrd in his defense. The trial lasted two days. Byrd did not make an opening statement, did not testify, and did not make a closing argument.

During the charge of the court, Judge Brown made the following statements, inter alia:

I might say to you that when defendants are charged with multiple crimes requiring definitions, it's my practice to give you written explanations so that you don't have to recall to mind everything I've told you. And I will do that shortly after your--shortly after you begin to deliberate.

. . . . .

Now, as I told you a few moments ago, I'm going to give you copies of the definitions of these crimes and, in addition, the definition in the Code of serious bodily injury which, of course, will be much more lengthy than appears here, and it will be in substantially the same as the ones I've just instructed you on. These references in the charge of unlawful restraint, for example, exposing a person to risk of serious bodily injury, are simply a means of telling you precisely which crime I'm referring to. That, I think, will be perfectly clear and you will be able to tie that into these definitions which I'm going to give you in writing.

Notes of Testimony, February 26-27, 1990, pages 145, 151a. The jury retired to commence its deliberations at 2:15 p.m. Id. at page 153. At 3:58 p.m., proceedings were reconvened with the Court, the trial assistant district attorney, Karen A. Coletta, and the stand-by assistant public defender, Joseph Hylan, being present. At that time, the following ensued:

THE COURT: Let the record show that I have a question from the forelady of the jury which reads as follows: Is the definition of "knowingly" in 1488.3-89 and "consciously" in 1488.1-89 the same? We are having difficulty with the term "consciously." If they are not considered the same, could we have a definition of "consciously"? The last name is Anastasi. What's the first?

MS. COLETTA: Anne.

THE COURT: Anne Anastasi. And it's finished off with a question mark.

And I have consulted with counsel, Mr. Hylan has consulted with his client--agent, whatever--

MR. HYLAN: Principal.

THE COURT: Principal.

MR. HYLAN: My principal.

THE COURT: Principal, and all approve my sending out Page 177 which contains a definition of the word conscious in Webster's Seventh New Collegiate Dictionary.

Okay, with that, we can take it from there. All right.

----

Id. at pages 154-55. Attached to the original Transcript of Notes of Testimony, February 26 and 27, 1990, filed April 20, 1990, are the original handwritten question from Anne Anastasi, set forth above, and the xerox copy of page 177 of the Webster's Dictionary upon which page the definition of the word, "conscious", is included.

Commonwealth v. Oleynik, supra, had been decided on January 31, 1990, approximately one month before Byrd's trial before Judge Brown. Deputy Public Defender Hylan points out in the Brief for Appellant, at page 15, that the Oleynik decision was published in the March 9, 1990 advance sheets, after the filing of Byrd's post-verdict motions on February 28, 1990. Hylan promptly wrote to the trial court, on March 26, 1990, bringing the Oleynik decision to the court's attention "in further support of Mr. Byrd's request for a new trial." This was well before the trial court, on April 19, 1990 set argument on the motion for new trial to be held on May 17, 1990. Order, Brown, J., filed April 23, 1990.

Since the Oleynik decision was filed on January 31, 1990, and would have been available in slip opinion form immediately thereafter, we cannot say that this is a case where counsel would not have been expected to anticipate changes in the law. On the contrary, the Oleynik decision, holding "that the possible prejudice to a defendant from written instructions to a jury outweighs any benefit such instructions might provide," Oleynik, 524 Pa. at 46, 568 A.2d at 1241, was clearly the law when the Byrd trial occurred.

Where our Supreme Court has declared that the prejudice from written instructions outweighs any benefit such instructions might provide, we must conclude that Deputy Public Defender Hylan correctly brought this issue to the attention of the trial court through his post-verdict communication. Further, we believe the trial judge, pursuant to Pa.R.Crim.P. 1123(a) should have considered this ground, "upon cause shown."

There is no dispute that the trial court did, in fact, utilize written instructions not only in his basic charge to the jury but also in response to an inquiry from the jury concerning the meaning of the words "knowingly" and "consciously". The only response to this by the Commonwealth and by the Court, on this appeal, is that the issue is waived. Since we do not agree that this issue was waived, on the unique facts in this case, we are constrained to find merit in Byrd's contention. Moreover, were this specific issue on these precise facts to return to this court within a framework of ineffective assistance of counsel, the fact that the claim has merit and that the defendant has been prejudiced has already been decided by our Supreme Court in Oleynik. In the interest of judicial economy, therefore, and finding the claim to have merit, we reverse judgment of sentence and remand for a new trial. Oleynik, 524 Pa. at 46-47, 568 A.2d at 1241.

We treat the first and second issues, (a) and (b), above, since this matter must be returned for retrial. Also, in light of our status as an intermediate appellate court, we cannot predict the future course of this litigation, which may include further appellate review. Consideration of these two issues is, accordingly, in order. Commonwealth v. Tippens, --- Pa.Super. ----, 598 A.2d 553 (1991).

As his first issue, Byrd contends that a videotape of the hostage situation which had been made by corrections officers, and which ran approximately seven and one-half hours in length, should have been shown to the jury. We disagree. During an in camera conference on this issue, mid-trial, the distinguished trial judge entertained the Commonwealth's motion to show a thirty-five minute condensation of the videotape, Exhibit 6, as well as Byrd's following motion to show the entire videotape. Notes of Testimony, February 26 and 27, 1990, pages 94-106.

We start our analysis with the general principles set forth in Commonwealth v. Conway, 368 Pa.Super. 488, 534 A.2d 541 (1987). There, in reviewing the suppression of the audio portion of a videotape of a driver performing sobriety tests, we set forth the general principles relating to the admission of evidence. A trial court has broad discretion as to the manner in which a trial is to be conducted, particularly with regard to the admission or exclusion of evidence. Id. Not all relevant evidence is admissible, and a trial court may exercise its discretion to exclude relevant evidence that may confuse, mislead or prejudice the jury. Id.

Moreover, where materials have been adequately covered in previous testimony, and the introduction of further evidence on the same point would serve only to distract the jury from the relevant issues, denial of cumulative evidence is proper. Commonwealth v. Henry, 524 Pa. 135, 569 A.2d 929, 936 (1990), cert. denied 499 U.S. 931, 111 S.Ct. 1338, 113 L.Ed.2d 269 (1991).

During the in camera conference to determine whether the videotape, or any portion of it, would be admitted, the trial assistant district attorney admitted that there was nothing...