am"; 2) Susan Murray testify that she saw a man in the middle of
three fire a gun and shoot the victim; 3) Karen Antonelli testify
that she turned and looked at the area where the loud noise came
from and identified petitioner as the one in the middle, and her
possibly conflicting grand jury testimony, that they wanted
reread to them during deliberations, which put into question
whether she saw the defendants near the body; 4) Tina Marie
Bianchi testify that she saw someone run down the steps
immediately after the "loud noise" and apparently conceal a dark
object in his pants; and 5) Bernard Mulholland corroborate
Rodgers' and Bianchi' testimony concerning the threats made to
Ragno at the earlier confrontation and petitioner actions after
the shot being the first to run out of the club with his hand in
his pocket apparently concealing something and flee in a car
later found burned and registered to the petitioner's family.
From this testimony and the inferences permitted to be drawn
from such under Jackson, I find that a rational trier of fact
could have found the essential elements of the crime of first
degree murder beyond a reasonable doubt. Sullivan v. Cuyler,
supra; Jackson v. Virginia, supra.
2. Trial Court Error
Petitioner next argues that the trial court abused its
discretion when it allowed only a portion of Karen Antonelli's
testimony to be read to the jury without the accompanying
cross-examination, thereby placing "undue influence" upon a
particularly prejudicial portion of testimony, namely grand jury
I begin with outlining the relevant case law, as in my previous
Report and Recommendation. Review of this claim is restricted to
whether the alleged error deprived the petitioner of a
fundamentally fair trial. Donnelly v. DeChristoforo,
416 U.S. 637, 642, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).
When a jury requests that recorded testimony be read to it to
refresh its memory, it rests within the trial court's discretion
to grant or deny such a request. The parameters concerning the
extent that testimony should be read to the jury are to be set by
the jury's request. "Hence the court, if it deems it appropriate,
may permit the jury to hear only a portion of a witness'
testimony." Commonwealth v. Bell, 328 Pa. Super. 35, 54,
476 A.2d 439 (1984) (allocatur denied); see also, Commonwealth v.
Peterman, 430 Pa. 627, 244 A.2d 723 (1968); Commonwealth v.
Coley, 297 Pa. Super. 435, 444 A.2d 110 (1982).*fn10
The record here indicates that the court received a question
from the jury during deliberations asking, "could we please see
the grand jury testimony of Karen Antonelli concerning the three
people she saw before the shoot[ing] and after the shoot[ing]."
In support of this claim, petitioner's counsel cites a case,
United States v. Rabb, 453 F.2d 1012 (3d Cir. 1971), which used
a test to determine whether there has been an abuse of discretion
in denying a jury request for clarification.
However, this case has no relevance here because the trial
judge never denied the jury's request, but rather, as the record
reflects, was very concerned about answering the question. In
fact, there was a long heated discussion between counsel and the
trial judge, outside the presence of the jury, in an attempt to
determine specifically what the jury wanted read to them. Judge
Sabo repeated several times that he intended to give the jury
what it requested, but was attempting to determine exactly what
that was. As is within his discretion to do, he determined what
he would read to the jury to satisfy their inquiry. He went on to
specifically read the grand jury question posed to Karen
Antonelli and her answer. He further said to the jury that, "if
there's anything else that you need for your deliberation, let me
know but try to be more specific in your questions." Thus, this
claim is meritless since Judge Sabo, after much debate and
consideration, answered the jury's specific question and invited
them to ask more questions if they so desired*fn11 (R.R. 9/28/87
3. Ineffective Assistance of Counsel
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), created a two-prong test that a petitioner
must satisfy before his conviction will be overturned on
ineffective grounds. First, he must show that counsel's
performance was deficient, and secondly, he must show that the
deficiency prejudiced his defense to such an extent that the
result is unreliable. Id. at 687, 104 S.Ct. 2052.
The standard against which the attorney's performance is
measured is reasonableness; counsel's performance must comply
with prevailing professional norms. Id. at 688, 104 S.Ct. 2052.
The Court instructed:
". . . (the reviewing court) must judge the
reasonableness of counsel's challenged conduct on the
facts of the particular case, viewed as of the time
of counsel's conduct . . ."
Id. at 690, 104 S.Ct. 2052.