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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RICARDO J. RIVERA-TORRES
Appellee No. 337 MDA 2014
Appeal from the PCRA Order January 31, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22CR-0001122-2009
BEFORE: OTT, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 02, 2014
The Commonwealth appeals from an order granting Ricardo Rivera-
Torres’ PCRA1 petition and awarding a new trial on the ground that Rivera-
Torres’ trial counsel was ineffective for failing to object to an erroneous jury
instruction. After careful review, we affirm.
Rivera-Torres was charged with homicide2 and other offenses in
connection with the murder of Jonas Strunk on July 22, 2007. Rivera-Torres
testified that he observed the victim fighting with an acquaintance of Rivera-
Torres (William Lopez). Rivera-Torres claimed that he joined in the
altercation to help Lopez, but Lopez pulled out a gun and shot the victim.
The day after the shooting, another acquaintance told Rivera-Torres that the
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1
Post-Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.
2
18 Pa.C.S. § 2502.
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victim was dead, and that meant jail for life. Rivera-Torres testified that he
did not want to go to jail for someone he did not kill, so he left for Florida.
In January 2009, police apprehended Rivera-Torres in Florida3. In December
2009, Rivera-Torres stood trial for Jonas Strunk’s murder.
Although the closing arguments of counsel were not transcribed, the
trial court’s instructions to the jury were. The transcript reflects that in the
course of instructing the jury on consciousness of guilt, the court stated:
“You may[,] however[,] find the defendant guilty solely based on evidence of
flight or concealment.”4 The correct instruction actually should have been:
“You may not find the defendant guilty solely on the basis of evidence of
flight or concealment.”5
On December 18, 2009, the jury found Rivera-Torres guilty of third
degree murder but acquitted him of all other charges, including first degree
murder. The Court sentenced Rivera-Torres to 15-30 years’ imprisonment.
Rivera-Torres filed a timely appeal to the Superior Court, and the court
reporter filed the trial transcript with the Clerk of Court. The parties used
the transcript to prepare briefs in Rivera-Torres’ direct appeal. On
November 29, 2010, the Superior Court affirmed the judgment of sentence
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3
N.T., 12/16/09, pp. 435-37.
4
N.T., 12/18/09, p. 553:23-25.
5
See Commonwealth v. Wilamowski, 633 A.2d 141, 144 (Pa.1993)
(evidence of defendant’s flight after breaking down door to residence,
standing alone, was not sufficient to prove intent to commit crimes inside
the residence).
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in a memorandum that cited the trial transcript multiple times 6. The
Supreme Court denied Rivera-Torres’ petition for allowance of appeal.
Rivera-Torres filed a timely PCRA petition alleging that trial counsel
was ineffective for failing to object to the erroneous jury instruction
concerning flight. On December 18, 2013, the court convened a hearing on
the PCRA petition. The PCRA court stated: “I really cannot say with all
honesty that I remember exactly what came out of my lips when I read the
instruction.”7 Both the prosecutor and trial counsel testified that the
transcript was inaccurate and that the court actually stated the correct
instruction (flight could not provide the sole evidence of guilt)8.
In an order dated January 30, 2014, the PCRA court determined that
(1) it gave an erroneous instruction by omitting “not”; (2) trial counsel was
ineffective for failing to object, (3) Rivera-Torres suffered prejudice due to
the erroneous instruction, and (4) Rivera-Torres was entitled to a new trial.
The Commonwealth filed a timely appeal and a timely Pa.R.A.P.
1925(b) statement in which it raised the following issues:
1. The PCRA court erred in granting a new trial for
ineffective assistance of counsel for failure to object
to a jury instruction where the uncontroverted
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6
See Commonwealth v. Rivera-Torres, 467 MDA 2010 (Pa.Super.,
November 29, 2010) (unpublished memorandum citing to trial transcript on
pages 6, 9, 11, 14-16).
7
N.T., 12/18/13, p. 6. The same judge who presided at trial also presided
over Rivera-Torres’ PCRA hearing.
8
N.T., 12/18/13, pp. 12-37, 45-52.
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evidence established that the trial transcript was
wrong and the court correctly instructed the jury.
2. The PCRA court erroneously denied a motion to
correct the transcript nunc pro tunc where no notice
of lodgment of the transcript was filed or served on
the parties, as required by Pa.R.A.P. 1922(a).
Our standard of review in PCRA appeals is limited to determining
whether the findings of the PCRA court are supported by the record and free
from legal error. Commonwealth v. Sneed, 899 A.2d 1067, 1071 n. 6
(Pa.2006). “The PCRA court's factual determinations are entitled to
deference, but its legal determinations are subject to our plenary review.”
Commonwealth v. Hawkins, 894 A.2d 716, 722 (Pa.2006).
The court must grant a PCRA petitioner relief when he proves, by a
preponderance of the evidence, that his conviction or sentence resulted from
“[i]neffective assistance of counsel which, in the circumstances of the
particular case, so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.” 42
Pa.C.S. § 9543(a)(2)(ii). Counsel's performance is presumed to be
constitutionally adequate, and counsel will only be deemed ineffective upon
a sufficient showing by the petitioner. Commonwealth v. Dennis, 950
A.2d 945, 954 (Pa.2008). To obtain relief, a petitioner must demonstrate
that counsel's performance was deficient and that the deficiency prejudiced
the petitioner. A petitioner establishes prejudice when he demonstrates
“that there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.”
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Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa.2009). When the
court gives an erroneous instruction to the jury, the defendant is entitled to
a new trial when the instruction contains fundamental error or misleads or
confuses the jury. Commonwealth v. Fletcher, 986 A.2d 759, 792
(Pa.2009).
In its first argument, the Commonwealth argues that the
“uncontroverted evidence” shows that the trial transcript was “wrong”, and
that the trial judge actually gave the proper instruction on flight which
included the critical word “not”. We disagree. It is well settled that the
courts have the power to correct clerical errors in the record.
Commonwealth v. Claudy, 106 A.2d 401 (1954); Commonwealth v.
McDonald, 428 A.2d 174, 175 (1981). This power authorizes the court to
determine whether the original record is accurate by comparing the original
record with evidence of the alleged error. Here, the court compared the
original trial transcript, which omitted the word “not” from the flight
instruction, with the testimony of the two attorneys at the PCRA hearing,
both of whom stated that the court included “not” in the flight instruction9.
After weighing these elements, the court determined that it failed to include
“not” in the flight instruction. Since the court’s factual findings are entitled
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9
The trial judge’s recollection did not help either side, because he lacked an
independent recollection of what he instructed.
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to deference, Hawkins, supra, 894 A.2d at 722, we will not overturn this
finding.
The Commonwealth contends, in effect, that we must overturn this
factual finding because Rivera-Torres failed to present any witness during
the PCRA hearing to rebut the prosecutor’s and trial counsel’s testimony that
the court included “not” in its flight instruction. The Commonwealth ignores
the critical point that the trial transcript itself is evidence of what took place
during trial. Thus, the court had the authority to weigh the contents of the
transcript against the prosecutor’s and trial counsel’s testimony. The court
performed this balancing test and determined that the contents of the
transcript outweighed the testimony presented during the PCRA hearing.
Since we accord deference to this balancing of evidence, we will not reverse
the PCRA court’s finding. Hawkins, supra.
Once the court found that it omitted “not” from the flight instruction, it
properly awarded a new trial to Rivera-Torres. Rivera-Torres clearly had the
right to a jury instruction that flight alone could not establish his guilt.
Wilamowski, supra. Trial counsel had no reasonable basis for failing to
object to an instruction that flight alone could establish his guilt. Finally, the
instruction contained fundamental error, since it led the jury to believe that
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Rivera-Torres’ flight after the shooting was itself sufficient to establish his
guilt10.
In its second argument, the Commonwealth contends that the court
erroneously denied its motion to correct the transcript nunc pro tunc, where
the court reporter failed to file or serve the notice of lodgment of the
transcript on the parties in violation of Pa.R.A.P. 1922(a). Rule 1922(a)
provides:
Upon receipt of the order for transcript and any
required deposit to secure the payment of transcript
fees the official court reporter shall proceed to have
his notes transcribed, and not later than 14 days
after receipt of such order and any required deposit
shall lodge the transcript (with proof of service of
notice of such lodgment on all parties to the matter)
with the clerk of the trial court. Such notice by the
court reporter shall state that if no objections are
made to the text of the transcript within five days
after such notice, the transcript will become a part of
the record. If objections are made the difference
shall be submitted to and settled by the trial court.
The trial court or the appellate court may on
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10
In some cases, an erroneous instruction does not automatically establish
prejudice. See, e.g., Commonwealth v. Paddy, 800 A.2d 294, 323
(Pa.2002) (attorney's deficient performance by failing to object to erroneous
instruction that defendant's flight before murdering witness to other murders
could indicate his consciousness of guilt did not prejudice defendant in
prosecution for capital murder of witness; court had instructed the jury that
the murders were not at issue and that the inference from flight was
permissive, and the evidence linked defendant to murder of the witness). In
this case, however, the Commonwealth does not argue that Rivera-Torres
did not suffer prejudice from the erroneous flight instruction. The
Commonwealth only argues that the trial judge gave the correct flight
instruction.
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application or upon its own motion shorten the time
prescribed in this subdivision.
Pa.R.A.P. 1922(a) (emphasis added). According to the Commonwealth, the
court reporter’s failure to file a notice of lodgment of the transcript
constitutes a breakdown in the operation of the court. We disagree.
Allowance of an untimely action nunc pro tunc is a matter within the
sound discretion of the trial court. Fischer v. UPMC Northwest, 34 A.3d
115, 120 (Pa.Super.2011). A court may grant a party leave to proceed nunc
pro tunc "when a delay in filing is caused by 'extraordinary circumstances
involving fraud or some breakdown in the court's operations where an
administrative board or body is negligent, acts improperly or unintentionally
misleads a party.' " Id. (quoting Union Elec. Corp. v. Bd. Of Prop.
Assessment, 746 A.2d 581, 584 (Pa.2000)). A breakdown in court
operations often involves the failure of a court official "to fulfill his or her
ministerial duties, such as the filing of dispositions and other relevant
information on the appropriate docket, or giving notice of these dispositions
to interested parties.'" Id. (quoting Rothstein v. Polysciences, Inc., 853
A.2d 1072, 1075 (Pa. Super. 2004)).
Even if the court reporter technically violated Pa.R.A.P. 1922 by failing
to provide notice of lodgment to the parties, the Commonwealth suffered no
prejudice. The court gave the Commonwealth the opportunity during the
PCRA hearing to refute Rivera-Torres’ contention that the flight instruction
was improper. The Commonwealth presented two witnesses who testified
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that the flight instruction was correct under the law. Had the court reporter
provided notice of lodgment at the proper time, the procedure under Rule
1922 would have been materially the same as the PCRA hearing. Pursuant
to Rule 1922(c)11, the court would have permitted the parties to present
evidence concerning what instruction the court actually gave and would then
have decided which party’s position to accept. Therefore, assuming there
was a technical violation of Rule 1922, the Commonwealth is not entitled to
reversal of the order granting a new trial.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2014
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11
Pa.R.A.P. 1922(c) provides in relevant part:
The trial judge shall examine any part of the
transcript as to which an objection is made pursuant
to Subdivision (a) of this rule or which contains the
charge to the jury in a criminal proceeding, and may
examine any other part of the transcript, and after
such examination and notice to the parties and
opportunity for objection (unless previously given)
shall correct such transcript.
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