Appeal from the Order of the Superior Court at No. 2964 EDA 2006 dated October 29, 2008 affirming the Order of the Court of Common Pleas of Delaware County dated October 17, 2006 at Nos. 937-2002 & 4572-2001.
The opinion of the court was delivered by: Madame Justice Orie Melvin
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN JJ.
SUBMITTED: November 20, 2009
We granted allowance of appeal to clarify whether a criminal defendant has the right to be present while deliberating jurors listen to audio-recorded trial testimony and whether jurors are permitted to review such testimony within the confines of the jury deliberation room. These issues arose on collateral review when Appellant, Lucillious Williams, argued that his trial counsel was ineffective for failing to object when the trial court allowed the jury to listen to an audio recording of a rape victim's testimony in the jury room without Appellant or his attorney present. The Superior Court found that this procedure violated Pa.R.Crim.P. 602(A) but concluded that the error was harmless.*fn1 In addition, the Superior Court held that an audiotaped recording of a witness's trial testimony does not constitute a transcript for purposes of Pa.R.Crim.P. 646(B)(1), and, thus, counsel could not be deemed ineffective for permitting the jury to listen to the testimony in the deliberation room.*fn2 Upon review, we affirm the order of the Superior Court.
On October 15, 2002, a jury convicted Appellant of one count of rape, five counts of corruption of minors, eleven counts of involuntary deviate sexual intercourse, and fourteen counts of indecent assault based on testimony that he repeatedly molested six children while serving as their babysitter. Appellant was sentenced to twenty-two to forty-four years of imprisonment on February 24, 2003. The Superior Court affirmed the judgment of sentence, and we denied review. Commonwealth v. Williams, 860 A.2d 1137 (Pa. Super. 2004) (unpublished memorandum), appeal denied, 872 A.2d 1199 (Pa. 2005).
On May 1, 2006, Appellant filed a counseled petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546, alleging that trial counsel was ineffective for failing to object to the procedure utilized by the trial court when the jury asked to hear an audiotaped recording of one victim's trial testimony during deliberations. Appellant argued, inter alia, that allowing the jury to re-examine the testimony in the privacy of the deliberation room violated Pa.R.Crim.P. 602(A) and 646(B)(1) and undermined the integrity of the decision-making process. The PCRA court dismissed the petition without an evidentiary hearing, and a three-judge panel of the Superior Court affirmed the PCRA court's order in a published opinion. Commonwealth v. Williams, 959 A.2d 1272 (Pa. Super. 2008).
The Superior Court found that the trial court violated Pa.R.Crim.P. 602(A) by permitting the jury to listen to the audiotape outside of Appellant's presence because the rule states that "[t]he defendant shall be present at every stage of the trial." The error was deemed harmless, however, because the jury heard a verbatim recording of the witness's testimony on direct and cross-examination, and neither Appellant nor his counsel would have been able to "alter, modify, or improve the content" if they had been present when the audiotape was played for the jury. Id. at 1282. Moreover, the Superior Court reasoned that Appellant did not suffer prejudice because he was acquitted of multiple crimes, which supported an inference that the jury "carefully considered and weighed all of the evidence for each specific charge." Id. at 1283.
The panel also found that playing the audiotape inside the jury room did not violate the dictates of Pa.R.Crim.P. 646(B)(1), which prohibits jurors from possessing transcripts of trial testimony during deliberations. Citing Commonwealth v. Canales, 311 A.2d 572, 575 (Pa. 1973), where this Court explained that transcripts are forbidden in the jury room because "the physical embodiment of a portion of the trial testimony in written form" might convince jurors to accept the testimony as true, the Superior Court concluded that Rule 646 does not apply to audiotaped recordings. Accordingly, the panel determined that Appellant's second ineffective-assistance-of-counsel claim lacked arguable merit.
Former Justice James Fitzgerald dissented on the basis that the procedure employed herein violated our pronouncement in Commonwealth v. Peterman, 244 A.2d 723, 726 (Pa. 1968), that when a jury requests a reading of trial testimony, "the review of testimony must be conducted in open court in the presence of [the] parties and their counsel." Although he conceded that Rule 646 does not expressly prohibit jurors from reevaluating audiotaped testimony during their deliberations, the former Justice maintained that jurors cannot review any type of recorded testimony in private because there is always a risk that they will give it excessive weight. Thus, according to the dissent, the defendant "does have a right to be present, and to have counsel present, during a recitation of testimony to the jury, whether in written or audio form." Williams, 959 A.2d at 1288.
Appellant filed a petition for allowance of appeal, and we granted review to determine whether the Superior Court correctly disposed of his ineffectiveness claims. "In order to be eligible for PCRA relief, Appellant must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found at 42 Pa.C.S. § 9543(a)(2)." Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008).*fn3 Ordinarily, appellate review of an order denying post-conviction relief focuses on the PCRA court's factual findings and conclusions of law, which are examined for record support and legal error. Commonwealth v. Weiss, 986 A.2d 808 (Pa. 2009). Our scope of review is limited to the PCRA court's findings and the evidence of record, viewed in the light most favorable to the prevailing party. Commonwealth v. Sam, 952 A.2d 565 (Pa. 2008). Here, however, as our inquiry centers upon the Superior Court's interpretation of procedural rules, a purely legal question, our standard of review is de novo, and our scope of review is plenary. Commonwealth v. Patton, 985 A.2d 1283 (Pa. 2009).
In order to prevail on a claim of ineffective assistance of counsel, a PCRA petitioner must demonstrate that: (1) the underlying issue has arguable merit; (2) the course of conduct pursued by counsel did not have some reasonable basis designed to effectuate the petitioner's interests; and (3) the petitioner suffered actual prejudice as a result of counsel's deficient performance. Commonwealth v. Williams, 980 A.2d 510, 520 (Pa. 2009). Prejudice is shown when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Commonwealth v. Miller, 987 A.2d 638, 648 (Pa. 2009) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). Failure to satisfy any prong of this test necessitates rejection of the petitioner's claim. Williams, 980 A.2d at 520.
Appellant initially contends that trial counsel should have objected when the judge announced that the jury could review the audiotaped testimony in private because Pa.R.Crim.P. 602 gives a criminal defendant an unqualified right to be present at every stage of the trial. Although he concedes that he had no right to enter the jury room, Appellant argues that the procedure employed by the trial court violated Rule 602 because the review constituted a stage of the trial, and, therefore, the court should have afforded Appellant an opportunity to witness the event by ordering that the tape be played in open court. Consistent with this view, Appellant suggests that counsel had no reasonable basis for failing to object and maintains that the unsupervised examination of the recorded testimony was inherently prejudicial because the jury had control of both the tape and an unknown audio technician whose "body language and facial expressions could well have conveyed his opinion to the jury." Appellant's brief at 22.
We begin our analysis with the text of Pa.R.A.P. 602, which provides that the defendant "shall be present at every stage of the trial" and prohibits the judge from trying or sentencing the defendant in absentia unless the defendant is absent without cause. The Pennsylvania Rules of Criminal Procedure are to be construed in accordance with the rules of statutory construction, where the goal is to ascertain and effectuate the intent of the drafters. See Pa.R.Crim.P. 101(C); 1 Pa.C.S. § 1921(a). In the case at bar, the parties and the trial court all agree that the playback of the audiotaped testimony constituted a stage of the trial, and, as a result, Rule 602 was violated. We concur with this assessment.
The rule plainly states that the defendant has the right to observe every phase of the trial, including the impaneling of the jury and the reading of the verdict, and that right unquestionably applies when a deliberating jury is permitted to re-examine a witness's trial ...