Com. v. Byrd

CourtSuperior Court of Pennsylvania
Writing for the CourtJOHNSON; The most distinguished trial court; During the charge of the court
Citation409 Pa.Super. 611,598 A.2d 1011
Decision Date30 October 1991
PartiesCOMMONWEALTH of Pennsylvania v. Haddrick BYRD, Appellant.

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.

Page 1012

[409 Pa.Super. 612] Joseph J. Hylan, Asst. Public Defender, Norristown, for appellant.

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

[409 Pa.Super. 613] 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.

Page 1013

302(b), Rogers v. [409 Pa.Super. 614] 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:

[409 Pa.Super. 615] 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

Page 1014

[409 Pa.Super. 616] 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."

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10 practice notes
  • Com. v. Brown
    • United States
    • Pennsylvania Superior Court
    • October 19, 1999
    ...appellate court, we cannot predict the future course of this matter, which may include further appellate review. Commonwealth v. Byrd, 409 Pa.Super. 611, 598 A.2d 1011, 1014 (1991). Consideration of the remainder of Appellant's issues is accordingly in order. ¶ 10 Appellant's first four iss......
  • Com. v. Sattazahn
    • United States
    • Superior Court of Pennsylvania
    • October 6, 1993
    ...56 A.2d 546, 548 (1948). Commonwealth v. Ulen, 414 Pa.Super. 502, 524-525, 607 A.2d 779, 790-791 (1992). See also Commonwealth v. Byrd, 409 Pa.Super. 611, 618-621, 598 A.2d 1011, 1015-1016 The prosecutor's comment regarding the testimony of Jeffrey Hammer, when viewed in its proper context,......
  • Com. v. DuPont
    • United States
    • Superior Court of Pennsylvania
    • April 20, 1999
    ...v. Kelly, 484 Pa. 527, 399 A.2d 1061 (1979)(written notations referring to evidence produced at trial); Commonwealth v. Byrd, 409 Pa.Super. 611, 598 A.2d 1011 (1991)(written definitions of crimes 15. Appellant failed to include in his original brief a concise statement of reasons relied upo......
  • Com. v. Nichols
    • United States
    • Superior Court of Pennsylvania
    • April 2, 1997
    ...of all prior counsel. See, e.g., Commonwealth v. Hackman, 424 Pa.Super. 526, 529, 623 A.2d 350, 351 (1993); Commonwealth v. Byrd, 409 Pa.Super. 611, 613-16, 598 A.2d 1011, 1012-14 (1991); accord Commonwealth v. Widmer, --- Pa. ----, 689 A.2d 211 (1997) (although Widmer failed to file post-s......
  • Request a trial to view additional results
10 cases
  • Com. v. Brown
    • United States
    • Pennsylvania Superior Court
    • October 19, 1999
    ...appellate court, we cannot predict the future course of this matter, which may include further appellate review. Commonwealth v. Byrd, 409 Pa.Super. 611, 598 A.2d 1011, 1014 (1991). Consideration of the remainder of Appellant's issues is accordingly in order. ¶ 10 Appellant's first four iss......
  • Com. v. Sattazahn
    • United States
    • Superior Court of Pennsylvania
    • October 6, 1993
    ...56 A.2d 546, 548 (1948). Commonwealth v. Ulen, 414 Pa.Super. 502, 524-525, 607 A.2d 779, 790-791 (1992). See also Commonwealth v. Byrd, 409 Pa.Super. 611, 618-621, 598 A.2d 1011, 1015-1016 The prosecutor's comment regarding the testimony of Jeffrey Hammer, when viewed in its proper context,......
  • Com. v. DuPont
    • United States
    • Superior Court of Pennsylvania
    • April 20, 1999
    ...v. Kelly, 484 Pa. 527, 399 A.2d 1061 (1979)(written notations referring to evidence produced at trial); Commonwealth v. Byrd, 409 Pa.Super. 611, 598 A.2d 1011 (1991)(written definitions of crimes 15. Appellant failed to include in his original brief a concise statement of reasons relied upo......
  • Com. v. Nichols
    • United States
    • Superior Court of Pennsylvania
    • April 2, 1997
    ...of all prior counsel. See, e.g., Commonwealth v. Hackman, 424 Pa.Super. 526, 529, 623 A.2d 350, 351 (1993); Commonwealth v. Byrd, 409 Pa.Super. 611, 613-16, 598 A.2d 1011, 1012-14 (1991); accord Commonwealth v. Widmer, --- Pa. ----, 689 A.2d 211 (1997) (although Widmer failed to file post-s......
  • Request a trial to view additional results

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