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10/22/97 COMMONWEALTH PENNSYLVANIA v. DANTE TODARO

SUPREME COURT OF PENNSYLVANIA


October 22, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DANTE TODARO, APPELLANT.

Appeal from the Order of Superior Court, entered June 27, 1994, at No. 1937PGH93, affirming the Order of the Court of Common Pleas of Somerset County, Criminal Division, entered November 16, 1993, at Nos. 406B, 407B, 408B & 409B Criminal 1985. JUDGE(S) BELOW: CCP - Honorable John M. Cascio / SUPERIOR - ROWLEY, OLSZEWSKI, TAMILIA, JJ.

Composition OF The Court: Mr. Chief Justice John P. Flaherty, Zappala, Cappy, Castille, Nigro, Newman, JJ. Mr. Justice Zappala concurred in the result.

The opinion of the court was delivered by: Castille

OPINION OF THE COURT

JUSTICE CASTILLE

DECIDED: OCTOBER 22, 1997

The issue on appeal is whether appellant is entitled to relief under the Post Conviction Relief Act ("PCRA") *fn1 on his claim that his trial counsel was ineffective for failing to object to the trial court's submission of written instructions to the jury during jury deliberations. Because we find that the law at the time of trial did not prohibit the trial court from submitting written instructions to the jury, and since trial counsel's effectiveness must be Judged on the law as it existed at the time of trial, we affirm the order of the Superior Court denying appellant PCRA relief.

The relevant facts to this appeal are that appellant, along with a co-conspirator, were charged with four counts of burglary and related offenses in connection with four separate incidents in Somerset County, Pennsylvania. Prior to trial, the co-defendant pled guilty to certain charges.

During jury deliberations for appellant's trial, the jury requested that the trial court supply them with a written copy of the definitions of the first four crimes with which appellant was charged. In response to this question, the Judge sent the jury a writing which gave the definitions of the crimes of burglary, criminal trespass, theft and receiving stolen property. *fn2 The record does not reflect whether the trial court and the trial attorneys ever discussed the trial court's decision to submit these written instructions.

The jury later requested that the trial court supply them with a definition of direct and circumstantial evidence. This time, the record reflects that the Commonwealth objected to the trial court's proposal to submit written instructions to the jury on direct and circumstantial evidence. Appellant's trial counsel, however, stated that he had no objection to the submission of these written instructions since it reflected the charge previously given orally by the trial court on this subject matter. The trial court overruled the Commonwealth's objection and ultimately decided to submit written instructions which defined direct and circumstantial evidence since this was a practice the trial court had successfully followed in the past in order to resolve jury confusion. *fn3

On March 26, 1986, the jury found appellant guilty of one count of burglary, four counts of theft, four counts of conspiracy, three counts of violation of Uniform Firearms Act and one count of criminal mischief. Appellant was found not guilty as to three counts of burglary, three counts of criminal trespass and three counts of criminal mischief. After denying post-trial motions, appellant was sentenced to an aggregate term of imprisonment of a minimum of ten (10) to a maximum of twenty (20) years.

Appellant then appealed to the Superior Court alleging he was entitled to a new trial because of inconsistent verdicts rendered by the jury, the trial court's failure to suppress evidence and the Commonwealth calling his co-conspirator to the stand in front of the jury and then the trial court dismissing his co-conspirator without testifying since the co-conspirator invoked his Fifth Amendment right against self-incrimination. On June 3, 1987, the Superior Court denied appellant's appeal and affirmed the judgment of sentence. This Court affirmed appellant's judgment of sentence in Commonwealth v. Todaro, 524 Pa. 64, 569 A.2d 333 (1990). *fn4

On July 30, 1992, appellant filed a petition for post-conviction relief under the PCRA. In the petition, appellant alleged for the first time that his trial counsel was ineffective for failing to object to the trial court's submission of written instructions to the jury. In claiming ineffective assistance, appellant relied on the case of Commonwealth v. Oleynik, 524 Pa. 41, 568 A.2d 1238 (1990), a case decided by this Court four years after appellant's conviction. On October 7, 1993, the PCRA court denied appellant's PCRA petition without holding a hearing *fn5 because it found that its review of appellant's motion and the Commonwealth's response demonstrated that no material issue of fact existed and that appellant was not entitled to post-conviction relief as a matter of law.

Appellant then appealed pro se to the Superior Court. The Superior Court, in a memorandum opinion and order, affirmed the PCRA court. We granted allocatur in order to determine whether appellant is entitled to PCRA relief on his claim that his trial counsel was ineffective for failing to object to the trial court's submission of written instructions to the jury.

This Court's review from the grant or denial of post-conviction relief is limited to examining whether the lower court's determination is supported by the evidence of record and whether it is free of legal error. Commonwealth v. Lutz, 492 Pa. 500, 506, 424 A.2d 1302, 1305 (1981). In order to be eligible for relief under the PCRA, an appellant must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa. C.S. § 9543(a)(2) and that the issues he raises have not been previously litigated. Commonwealth v. Travaglia, 541 Pa. 108, 117, 661 A.2d 352, 356 (1995), cert. denied, 133 L. Ed. 2d 858, 116 S. Ct. 931 (U.S. 1996). An issue will be deemed previously litigated when "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." 42 Pa. C.S. § 9544(a)(2).

Here, appellant claims that his counsel was ineffective for failing to object to the trial court's submission of written instructions to the jury. Counsel's ineffectiveness is a specifically recognized category entitling appellant to relief under the PCRA. See 42 Pa. C.S. § 9543(a)(2)(ii). *fn6 Moreover, appellant's ineffectiveness claim was never previously litigated since appellant raised this issue for the first time in his PCRA petition. Thus, we will examine whether appellant's ineffectiveness claim entitles him to PCRA relief.

The law presumes that trial counsel was effective and appellant bears the burden of proving otherwise. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). In order to sustain a claim of ineffective assistance of counsel, petitioner must establish (1) that the underlying claim is of arguable merit; (2) that counsel's performance had no reasonable basis; and (3) that counsel's ineffectiveness worked to petitioner's prejudice. Commonwealth v. Edmiston, 535 Pa. 210, 237, 634 A.2d 1078, 1092 (1993). Moreover, under the PCRA, counsel's ineffectiveness must have so undermined the truth determining process that no reliable adjudication of guilt or innocence could have occurred. 42 Pa. C.S. § 9543(a)(2)(ii). Furthermore, counsel's stewardship must be Judged under the existing law at the time of trial and counsel cannot be deemed ineffective for failing to predict future developments or changes in the law. Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983).

In judging whether appellant's underlying claim has merit, we must determine what the status of the law was at the time of appellant's trial as to the submission of written instructions to the jury. In 1976, this Court issued a plurality opinion in Commonwealth v. Baker, 466 Pa. 382, 353 A.2d 406 (1976), on the submission of written instructions to the jury. In Baker, the trial court sent ten (10) questions with possible verdicts to the jury. This Court noted that Rule 1114 of the Rules of Criminal Procedure did not specifically condemn this practice. *fn7 Thus, this Court stated that the trial court did not abuse its discretion in submitting the written instructions to the jury. However, this Court, in dicta, noted that "we suggest in the future that this practice should not be followed." Baker, 466 Pa. at 398, 353 A.2d at 414.

This Court continued to express a preference for not submitting written instructions to the jury in the cases of Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985) (submission of written list of aggravating and mitigating factors for jury to consider in capital sentencing phase rather than orally reading instructions to jury) and Commonwealth v. Kelly, 484 Pa. 527, 399 A.2d 1061, cert. denied, 444 U.S. 947, 62 L. Ed. 2d 317, 100 S. Ct. 417 (1979) (trial court submitted written notations on verdict slip in order to identify for the jury the separate counts with which the defendant was charged). While continuing to express this preference in dicta, this Court in both Morales and Kelly looked to whether the trial court abused its discretion in submitting the writings to the jury and whether the defendant was prejudiced by the submission. Since this Court found that the trial courts in Morales and Kelly did not abuse their discretion and that the defendants suffered no prejudice, this Court affirmed the judgment of sentence as to both defendants despite the submission of written instructions to the jury. *fn8

This Court's suggestion or preference for not submitting written instructions to the jury was not given the force of law until this Court's decision in Commonwealth v. Oleynik, 524 Pa. 41, 568 A.2d 1238 (1990). In Oleynik, this Court noted that the existing law showed a strong preference against submitting written instructions to the jury. The Oleynik Court then held that it was reversible error for a trial court to send written instructions to the jury during its deliberations since the possible prejudice to the defendant from the written instructions outweigh any possible benefit the instructions might provide.

Based on the above case law, we conclude that at the time of appellant's trial in 1986, this Court had yet to issue a ruling which absolutely prohibited the trial court from submitting written instructions to the jury. Instead, while a preference against such a submission existed in dicta, the trial court's actions in submitting written jury instructions in 1986 were Judged for an abuse of discretion and possible prejudice to the defendant.

Here, the trial Judge noted to appellant's trial counsel that he found the submission of written instructions to clarify jury questions to be quite helpful. Also, the trial court's submission of the statutory elements of the crimes with which appellant was charged and the definitions for direct and circumstantial evidence were neutral statements which reflected the charge already given orally to the jury. Moreover, trial counsel could have presumed that the written instructions clarifying the jury's question may have been helpful rather than prejudicial to appellant. This helpfulness is evidenced by appellant being found not guilty on a number of the charges submitted in writing to the jury. Therefore, we conclude that appellant's trial counsel was not ineffective since he had a reasonable basis for not objecting. Trial counsel cannot be deemed ineffective for failing to anticipate the change in the law by this Court in Oleynik four years after his trial.

In spite of our ruling that trial counsel was not ineffective under the law as it existed at the time of trial, appellant could still be entitled to a new trial if this Court's holding in Oleynik was to be given a fully retroactive application. *fn9 However, even a case which breaks with past precedent that is given a fully retroactive effect is not applied to any case on collateral review unless the decision announcing the new rule of law was handed down during the pendency's of the defendant's direct appeal and the issue was properly preserved on direct appeal. See Allen v. Hardy, 478 U.S. 255, 257-58, 92 L. Ed. 2d 199, 106 S. Ct. 2878 (1986); Commonwealth v. Gillespie, 512 Pa. 349, 355, 516 A.2d 1180, 1183 (1986); Commonwealth v. Christy, 540 Pa. 192, , 656 A.2d 877, 889 (1995).

Here, Oleynik, which made it reversible error to submit written instructions to the jury, broke with past precedent in Pennsylvania since cases which predated Oleynik examined the submission of written instructions for an abuse of discretion and possible prejudice to the defendant. *fn10 Appellant's direct appeal was exhausted on the same day that this Court announced the new rule of law in Oleynik and appellant never raised the written submission issue during his direct appeal. Thus, the new rule of law announced in Oleynik cannot be applied fully retroactive to appellant's collateral attack of his conviction. Therefore, Oleynik cannot provide appellant with a basis for PCRA relief.

Accordingly, for the reasons provided above, we affirm the order of the Superior Court denying appellant PCRA relief.

Mr. Justice Zappala concurred in the result.


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