J-S60036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
____________________________________________


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


____________________________________________


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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