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10/22/97 COMMONWEALTH PENNSYLVANIA v. DANTE TODARO

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. ยง 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 ...


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