Com. v. Hernandez, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIARA ZHANE HERNANDEZ
Appellant No. 1974 MDA 2016
Appeal from the Judgment of Sentence November 18, 2016
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000980-2016
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 22, 2017
Tiara Zhane Hernandez appeals from the judgment of sentence,
entered in the Court of Common Pleas of Centre County, on November 18,
2016. After careful review, we reverse and remand for a new trial.
On June 11, 2016, Hernandez was charged with burglary,1 criminal
trespass,2 and two counts of simple assault.3 These charges arose out of an
incident on June 3, 2016, where Hernandez allegedly broke into Spryce
York’s residence and assaulted her. There was conflicting testimony as to
whether anyone invited Hernandez to York’s residence.
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1
18 Pa.C.S.A. § 3502(a)(1).
2
18 Pa.C.S.A. § 3503(a)(1).
3
18 Pa.C.S.A. § 2701(a)(1).
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Hernandez testified that York’s friend, Shawntay Pope, told Hernandez
that her keys were inside York’s apartment. After Hernandez went inside to
retrieve her keys, Pope locked the door and trapped Hernandez inside.
Hernandez claimed that Pope then told Hernandez someone wanted to speak
to her, at which time York came out of a room, grabbed Hernandez’s hair
and began hitting Hernandez in the head. York testified that upon
Hernandez’s arrival, Hernandez chased York, and once York retreated inside
her apartment, Hernandez forced her way inside. York claimed Hernandez
immediately punched her in the left eye and began hitting her in the mouth.
York testified that she locked the door to prevent Hernandez from running
from the police. Hernandez claimed York struck her four or five times before
she hit York back. While York was preventing Hernandez from leaving,
Hernandez bit York on the shoulder to get her away from the door, and
Hernandez fled through a window.
Following trial, a jury acquitted Hernandez of the burglary and criminal
trespass charges, but found her guilty of simple assault. The court
sentenced Hernandez to imprisonment of three days to twenty-three and
one-half months, as well as fines, costs, and restitution. On appeal,
Hernandez raises the following question for our review:
Did the [t]rial [c]ourt commit reversible error when it permitted
the jurors to have for use during deliberations written copies of
the portion of the [t]rial [c]ourt’s charge on the elements of the
offense, but denied several requests by the defense to provide
the jurors with a copy of the self-defense instruction, in
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contradiction of Rule 646 of the Pennsylvania Rules of Criminal
Procedure?
Appellant’s Brief, at 5.
Whether materials should be allowed to go out with the jury during
deliberations is within the sound discretion of the trial court.
Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012).
Hernandez argues that Rule 646(B)(1) of the Pennsylvania Rules of Criminal
Procedure, and the comment thereto, establish that the trial court abused its
discretion when it allowed the jurors to have written copies of the court’s
charge on the elements of the offenses, but refused to provide the jurors
with written copies of the self-defense instruction. We agree.
Rule 646(B) provides:
The trial judge may permit the members of the jury to have for
use during deliberations written copies of the portion of the
judge’s charge on the elements of the offenses, lesser included
offenses, and any defense upon which the jury has been
instructed.
(1) If the judge permits the jury to have written copies of
the portion of the judge’s charge on the elements of the
offenses, lesser included offenses, and any defense upon
which the jury has been instructed, the judge shall provide
that portion of the charge in its entirety.
Pa.R.Crim.P. 646(B)(1). The comment to Rule 646 further explains:
It is within the discretion of the trial judge to permit the use of
the written copies of the portions of the charge on the elements
by the jury during deliberations. However, once the judge
permits the use of the written elements, the elements of
all of the offenses, lesser included offenses, and defenses
upon which the jury was charged must be provided to the
jury in writing.
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Pa.R.Crim.P. 646 cmt. (emphasis added).
The Commonwealth claims Hernandez’s argument fails because the
comments to the Rules of Criminal Procedure merely provide guidance and
are not binding. The Commonwealth is correct that comments by the
Supreme Court’s Criminal Rules Committee are not binding on this Court,
but they “may be considered as effective aides in interpreting the meaning
of the rule.” Commonwealth v. Reeb, 593 A.2d 853, 856 (Pa. Super.
1991). See Commonwealth v. Lockridge, 810 A.2d 1191, 1196 (Pa.
2002) (“Although the Comments are not part of the Rules and have not been
officially adopted or promulgated by this [C]ourt, a court may rely on the
Comments to construe and apply the Rules) (internal citations omitted).
Here, we are guided by the Comments to Rule 646.
The legislative history of Rule 646 provides further support for our
conclusion that the trial court erred in providing the jurors with written
instructions on the elements of the offenses, but not on the elements of self-
defense. Rule 646 was amended in 2009 to resolve section 646(B)(4),
which precluded written instructions in the deliberation room at the close of
a criminal jury trial. The text of the 2009 bill makes clear that the
amendment intended for jurors to have written instructions on the elements
of each crime charged and any relevant defenses during its deliberations.
H.R. 128, 193rd Gen. Assem., Reg. Sess. (Pa. 2009) (emphasis added). The
bill reads as follows:
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WHEREAS, After the presiding judge instructs the jury on the
applicable law, many jurors may have questions; and
WHEREAS, Jury questions about the applicable law may result in
requests to the court to repeat or explain instructions, causing
inefficiency in the deliberative process and unnecessary delay;
and
WHEREAS, Written instructions may reduce the number of
questions by the jury about their instructions during
deliberations, while serving to remind jurors to consider all
aspects of the legal claims or offenses and as a means of
structuring the deliberative process; and
***
RESOLVED, That the General Assembly urge the Pennsylvania
Supreme Court, in the exercise of its rulemaking authority, to
enact a rule of criminal procedure allowing written jury
instructions pertaining to the elements of each crime charged
and any relevant defenses to be provided to jurors for use as
part of the deliberative process by the jury.
H.R. 128, 193d Gen. Assem., Reg. Sess. (Pa. 2009) (emphasis added).
We believe the purpose of the 2009 amendment to Rule 646 was to
prevent confusion and inefficiency, which is at issue in this case. Here, the
jury heard the self-defense instruction a total of five times. The court read
the self-defense instruction three times before the jury began deliberations.
During deliberations, the jury came back with the following question: “If it’s
self-defense, does that rule out the bodily injury caused and bodily injury
attempted and could we have the definition of self-defense and any
documentation for determination?” N.T. Jury Trial, 10/17/16, at 396. At
this point, the judge read the instructions to the jury two more times, and
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noted the definition for justification of self-defense is “not an easy one to get
through” and that “[i]t’s very complicated.” Id. at 396, 401.
Not only did the jury itself request written copies of the self-defense
instruction, but Hernandez’s counsel also made several requests that the
court provide the jury with written instructions on self-defense and objected
to the court’s failure to do so. The judge denied these requests because she
did not have a way of getting the instruction prepared, despite counsel’s
suggestion to photocopy the instructions. Id. at 409.4
Moreover, this Court has held that a trial court may refuse to allow the
jury to have an exhibit during deliberations if it will cause the jury to place
undue emphasis on that particular piece of evidence over other evidence.
See Commonwealth v. Taylor, 596 A.2d 222, 224 (Pa. Super. 1991)
(concluding trial court’s refusal of jury’s request to send back tape recorded
conversation between defendant and confidential informant when judge
believed jury would place undue emphasis on recording was not abuse of
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4
MS. LUX: Your Honor, again, I would just note the Court
indicated the Court did not want to send out the written
instruction because the Court had no way of preparing it.
I would suggest that we just photocopy the written jury
instruction and send that out, noting where—just even crossing
out the sections that deal with deadly force.
THE COURT: I don’t like that.
N.T. Jury Trial, 10/17/16, at 409.
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discretion). Providing the jury with written instructions on the elements of
an offense, but not on the elements of the relevant defense, could
unquestionably cause the jury to place undue emphasis on the offense.
The Commonwealth further asserts that even if it was error for the
trial court not to provide the jury with a copy of the written self-defense
instruction, that error was harmless. We disagree. We note first that
harmless error is the appropriate guide for our review. In Commonwealth
v. Strong, 836 A.2d 884 (Pa. 2003), the Pennsylvania Supreme Court
stated that a “harmless error analysis will be applied to violations of this ilk,
and that not every violation is per se prejudicial.” Id. at 888. There, the
jury viewed a diagram of the crime scene during trial, but it was not
admitted as an exhibit. During deliberations, the jury asked to view the
diagram again, and, over defendant’s objection, the court allowed it. On
appeal, defendant argued the court erred because the diagram was not and
exhibit and was not specifically allowed under Rule 646. The Court, noting
that “[t]he underlying reason for excluding certain items from the jury's
deliberations is to prevent placing undue emphasis or credibility on the
material, and de-emphasizing or discrediting other items not in the room
with the jury[,]” id. at 888, found the diagram of relatively little value in
light of the overwhelming evidence from eyewitness testimony. The Court,
therefore, found the error “patently harmless.” Id. at 889. See
Commonwealth v. Story, 383 A.2d 155, 166 (Pa. 1978) (“[A]n error may
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be harmless where the properly admitted evidence of guilt is so
overwhelming and the prejudicial effect of the error is so insignificant by
comparison that it is clear beyond a reasonable doubt that the error could
not have contributed to the verdict.”).
Both the Commonwealth and the trial court judge maintain that the
evidence is insufficient to support a finding of self-defense because that
would be contrary to the jury’s findings. However, that reasoning assumes
the conclusion. It is not clear beyond a reasonable doubt that the trial
court’s error in failing to provide the jury with a written self-defense
instruction could not have contributed to the jury’s guilty verdict. As stated
above, the clear danger is that the jury will overemphasize the significance
of the materials it has, while de-emphasizing or discrediting those materials
it does not have before it. Strong, supra.
Pursuant to the purpose of Rule 646, once the judge decided to give
the jury written instructions on the elements of the offenses, Hernandez was
entitled to have written instructions on any relevant defenses provided to
the jury as well. Allowing the jury to take back written instructions on the
elements of the offenses, while disallowing written instructions on self-
defense, was prejudicial. The error, therefore, was reversible, not harmless.
Accordingly, we vacate Hernandez’s conviction and judgment of sentence,
and we reverse and remand for a new trial consistent with this decision.
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Judgment of sentence reversed and remanded for new trial.
Jurisdiction relinquished.
MUSMANNO, J., Joins this memorandum.
GANTMAN, P.J., Concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2017
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