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Commonwealth of Pennsylvania v. Gerald Szakal

August 3, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
GERALD SZAKAL, APPELLANT



Appeal from the Judgment of Sentence of November 25, 2009 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0000724-2008.

The opinion of the court was delivered by: Strassburger, J.

BEFORE: MUSMANNO, BENDER, and STRASSBURGER,*fn1 JJ.

OPINION BY STRASSBURGER, J.

Gerald Szakal (Appellant) appeals from the judgment of sentence entered following his convictions for murder in the second degree, robbery, theft by unlawful taking, receiving stolen property, and conspiracy.*fn2 After careful review, we affirm.

Appellant was arrested on March 9, 2008, and charged with capital murder,*fn3 robbery, and other related crimes in connection with the March 5, 2008, shooting deaths of Howard and Nancy Springer (the Springers) at their home in Carroll Township, Washington County. The Commonwealth theorized that Appellant, acting alone, robbed and murdered the Springers to cover up a previous theft.*fn4 The Commonwealth further alleged that co- defendants Justin Welch, Gregory Carpenter, and Tecko Tartt, collectively "the co-defendants," assisted Appellant in his plan to rob and kill the Springers and were subsequently paid for their efforts out of the proceeds from the robbery.

Following a jury trial, at which the co-defendants*fn5 testified for the Commonwealth and Appellant took the stand on his own behalf, Appellant was convicted of two counts of murder in the second degree, two counts of robbery, one count of theft by unlawful taking, one count of receiving stolen property, and two counts of conspiracy.

On October 9, 2009, Appellant timely filed a motion to set aside his guilty verdict and requested a new trial. On October 21, 2009, the trial court issued an order denying Appellant's requested relief.

On October 28, 2009, Appellant was sentenced to concurrent terms of life imprisonment for each second degree murder conviction. Additionally,

Appellant was sentenced to a consecutive, aggregate term of 20 to 40 years' imprisonment on the remaining counts.

Appellant filed a timely post-sentence motion seeking to modify his sentence on the basis of merger and allegations of juror misconduct. On November 25, 2009, the trial court granted Appellant's motion in part and issued an order vacating the sentences imposed for the robbery and theft convictions*fn6 because those crimes merged with the homicide offenses for the purposes of sentencing. Appellant was resentenced to two concurrent terms of life imprisonment on each count of homicide. Appellant filed a timely notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant's brief was filed on April 5, 2011,*fn7 wherein Appellant raises the following 15 claims of error:

1. Is [Appellant] . . . entitled to meaningful appellate review of his issues?

2. Can an [a]ppellant be afforded meaningful review of his issues if the trial record has been substantially and materially altered?

3. Is Appellant . . . entitled to a record/trial transcript which has not been materially altered upon which to brief/advance his issues?

4. Does Appellant . . . have the constitutional right under both the Constitution of the United States of America and the Pennsylvania Constitution to the effective assistance of counsel on direct appeal?

5. Can the undersigned render effective assistance of counsel with a record that has been materially altered with respect to the issues that must be advanced?

6. Is [Appellant] entitled to a new trial if the trial transcript has been intentionally altered for the purpose of preventing Appellant from advancing his issues and having them decided on their merits?

7. Is [Appellant] entitled pursuant to Rule of Appellate Procedure 1926 to copies of the audio recording of the trial transcript, copies of the floppy disk of the trial transcript as well as any other format that exists?

8. Should [Appellant] be entitled to submit a supplemental Brief upon receipt of an unaltered copy of the trial record whether it be in the form of an audio recording, floppy disk or other format?

9. Did the trial [c]court err in this death penalty case in denying [Appellant's] motion for a mistrial when a [potential] juror,

during jury selection, stated in the presence of the entire jury pool: "This guy's fucking guilty" and jurors denied that they heard this outburst when specifically questioned by the [c]court ?

10. Did the trial [c]court err by denying Appellant's motion for a mistrial when a Government witness spoke directly to the jurors during a trial recess and stated to them: "[Appellant] told me everything he did in the [Secured Housing Unit of the

Washington County Jail]. He told me it all. [Appellant] had [the victim] down and he was kicking her."?

11. Did the trial [c]court err by denying Appellant's motion for a mistrial when the prosecutor stated in his closing argument that [Appellant] could have called certain witnesses to testify and failed to and likewise could have conducted tests on certain forensic evidence and failed to, which impermissibly shifted the burden of proof to [Appellant]?

12. Did the trial [c]court err in giving an incomplete and misleading jury instruction regarding unanimity of the verdict in response to a question from jurors during deliberations?

13. Did the cumulative effect of

(i) a juror outburst during jury selection wherein a juror stated in the presence of the entire jury pool that "[Appellant] was fucking guilty"; AND

(ii) a Commonwealth witness speaking to jurors at a trial recess and telling them that [Appellant] was guilty; AND

(iii) statements during the prosecution's closing argument that [Appellant] could have called certain witnesses to testify in his defense but did not and could have tested certain pieces of forensic evidence but did not; AND

(iv) an erroneous, misleading and coercive jury instruction regarding juror unanimity deny the Appellant a fair trial?

14. Did the trial [c]court err in denying Appellant's suppression motion regarding his statement and photographs which were taken in violation of the six hour rule, his right to a prompt preliminary arraignment and because he was unlawfully in custody of the Pennsylvania State Police?

15. Did the trial [c]court err in denying [Appellant] the right to call a False Confession Expert which was the heart of [Appellant's] case and would have assisted the trier of fact?

Appellant's Brief at 6-9 (emphasis deleted).

In general, we agree with the rhetoric championed by Appellant in his first six issues: a criminal defendant is entitled to meaningful appellate review, effective assistance of counsel at all stages of the proceedings, and an accurate record from which to perfect an appeal. Our criminal justice system is designed with these tenets in mind and allegations that the rights of an accused have been compromised deserve, and are afforded, the utmost scrutiny.

On appeal, Appellant's counsel asserts that the jury selection and trial transcripts were "intentionally altered for the purpose of preventing

Appellant from advancing his issues and having them decided on their merits." Appellant's Brief at 29. Counsel contends that he has not been provided with a full transcript and meaningful appellate review has been rendered impossible. See Commonwealth v. Goldsmith, 304 A.2d 478, 480 (Pa. 1973) ("Simple logic and justice require that once a defendant is guaranteed a right of appeal . . . he must be provided with a 'transcript or other equivalent 'picture' of what transpired below' in order to have a 'meaningful appeal'".)

This Court has previously addressed the concept of meaningful appellate review as it relates to transcripts of relevant proceedings:

It seems well established that where the entire transcript of a trial is unavailable, meaningful appellate review is not possible, and a new trial must be awarded. See Commonwealth v. De Simone, 447 Pa. 380, 290 A.2d 93 (1972); Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971); Commonwealth v. Homsher, 264 Pa.Super. 271, 399 A.2d 772 (1979); Commonwealth v. Dixon, 253 Pa. Super. 383, 385 A.2d 391 (1978). See also Commonwealth v. Shields, 477 Pa. 105, 383 A.2d 844 (1978) (New trial awarded due to impossibility of appellate review where Commonwealth did not contradict appellant's argument that the prosecutor's summation had contained reversible error to which timely objections had been made). In every instance in which a new trial was awarded, however, meaningful appellate review had been rendered impossible due to the absence of a transcript or an equivalent picture of the proceedings at trial. "In order to assure that a defendant's right to appeal will not be an empty, illusory right, we require that he or she be furnished a full transcript or other equivalent picture of the trial proceedings. Meaningful appellate review is otherwise an impossibility, and fairness dictates that a new trial be granted." Commonwealth v. Shields, supra at 108-09, 383 A.2d at 846.

Commonwealth v. Lyons, 500 A.2d 102, 105-106 (Pa. Super. 1985) (emphasis in original).

Instantly, Appellant's notice of appeal was filed on December 24, 2009. The official transcripts of jury selection and trial were filed by the court stenographer on March 30, 2010 (seven volumes of testimony), March 31, 2010 (two volumes), April 1, 2010 (three volumes), April 8, 2010 (one volume), and April 9, 2010 (two volumes). Appellant, through counsel, sought several continuances in order to file his brief with this Court.

On February 1, 2011, Appellant sought an extension of time in which he raised for the first time allegations that the official trial and jury selection transcripts had been altered. Specifically, counsel claimed:

1. That he made a motion for mistrial on September 23, 2009, that should have appeared on page 119 but instead appears on page 169. Counsel claims this motion has been substantially reduced and was ...


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