Com. v. Sullivan
Decision Date | 25 March 2003 |
Citation | 820 A.2d 795 |
Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Charles Adrian SULLIVAN, Appellant. |
Court | Pennsylvania Superior Court |
Wilbert H. Beachy, Somerset, for appellant.
Dwight G. Diehl, Asst. Dist. Atty., Bedford, for Com., appellee.
¶ 1 Appellant, Charles Adrian Sullivan ("Sullivan") appeals from a judgment of sentence entered in the Court of Common Pleas of Bedford County on November 8, 2001.1 We affirm the judgment of sentence and remand the matter with directives.
¶ 2 In September 2001, Sullivan was convicted by a jury of voluntary manslaughter in the shooting death of Michael Terrance McElfish ("McElfish"), 18 Pa. C.S.A. § 2503(a)(1), and carrying a firearm without a license, 18 Pa.C.S.A. § 6106. The trial court aptly summarized the underlying facts in its Memorandum and Order of February 6, 2002:
Memorandum, 2/6/02, at 6-8. McElfish was fatally shot immediately after the above exchange.
¶ 3 Following the jury's verdict, the trial court sentenced Sullivan to consecutive terms of imprisonment of five to ten years for voluntary manslaughter and one to three years for the firearm offense. Sullivan filed the following post-sentence motions: Motion in Arrest of Verdict challenging the sufficiency of the evidence to support his conviction, and Motion for New Trial on the grounds that the verdict was against the weight of the evidence, and that Sullivan's motion for a mistrial should have been granted after a state trooper testified as to an inculpatory statement made by Sullivan following his arrest which the Commonwealth failed to disclose during discovery. Sullivan also challenged the trial court's calculation of his prior record score as well as the application of a deadly weapon enhancement in the determination of his sentence.
¶ 4 Following a hearing, the trial court issued a memorandum and order on February 6, 2002 granting Sullivan's motions insofar as his sentences were modified to run concurrently rather than consecutively. The trial court denied Sullivan's remaining claims and this timely appeal followed.
¶ 5 Sullivan raises the following issues on appeal:
Brief for Appellant, at 5. We shall address Sullivan's issues in reverse order.
¶ 6 During deliberation, the jury requested a transcript of a tape-recorded statement made by Sullivan to two state troopers. In responding to the jury's request, the trial judge read the following excerpt from Pennsylvania Rule of Criminal Procedure 646 pertaining to material permitted in possession of a jury:
During deliberations the jury shall not be permitted to have the first is a transcript of any trial testimony which would be the deposition. And the second one is a copy of any written or otherwise recorded confession by the defendant. So the rules of procedure do not permit me to, for you to have them in your possession during deliberation.
N.T., 9/11/01, at 86 (emphasis added). Sullivan's attorney objected to the use of the word "confession" but did not request a curative instruction. Id. at 87. Sullivan now argues that he is entitled to a new trial because "the lower court was expressing its opinion of Sullivan's guilt as well as invading the prerogative of the jury as a fact finder in determining how Sullivan's statement was to be regarded." Brief for Appellant, at 21.2
¶ 7 In reviewing Sullivan's claim, we are guided by the following principles:
Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial. Moreover, it must be determined from all the circumstances whether a remark has a prejudicial effect; there is no fixed rule applicable to every case. An accepted guide in determining prejudicial effect is that, if the remark may be said with fair assurance to have had but a slight effect upon the jury, if any at all, and one is not left in doubt that it had no substantial influence in the case, it will not vitiate an otherwise fair trial.
Commonwealth v. Goodwine, 692 A.2d 233, 237-238 (Pa.Super.1997) (citations omitted) (emphasis original).
¶ 8 We have reviewed the trial court's jury instructions in their entirety and find that they more than adequately apprised the jurors of their responsibility, as sole judges of the facts, to assess the credibility and weight to be accorded to the testimonial evidence. A contextual reading of the challenged remark indicates that the judge was reading verbatim from the Pennsylvania Rules of Criminal Procedure, not commenting directly on the substance or characterization of Sullivan's statement. We have no doubt that the effect of the trial judge's isolated remark on the jury, if there was any at all, was slight and in no way deprived Sullivan of his right to a fair and impartial trial. Consequently, Sullivan's argument must fail.
¶ 9 Sullivan's second issue concerns an alleged discovery violation by the Commonwealth. At trial, State Trooper John S. Beaken offered the following testimony on direct examination by the Commonwealth regarding his recollection of Sullivan's statements to the police after the incident:
So he said then he pulled out his revolver from the back seat. And he was saying he had some type of problem loading or, or his rifle. I can't recall exactly what that was. But he said he reached for his revolver. He said it was single action. And that he cocked the hammer and pointed it toward Mr. McElfish and told him to get out of the car. He said a, that he said to him more or less, He says: ["]Go ahead—f'n shoot me,["] something to that effect. He said he grabbed his hand and pulled the gun towards him and it went off.
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