J-A18003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 RONALD K. CONNER                         :
                                          :
                    Appellant             :   No. 893 WDA 2018

            Appeal from the Judgment of Sentence June 4, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0015044-2015


BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                       FILED SEPTEMBER 19, 2019

      Ronald K. Conner appeals the June 4, 2018 judgment of sentence

imposing three years of restrictive intermediate punishment followed by three

years of probation after a jury convicted him of obstructing the administration

of law enforcement and criminal conspiracy. We affirm.

      The trial court summarized the facts as follows:

            On October 25, 2015, John Nash and Anthony Hartman
      assaulted two male victims near the 4400 block of Liberty Avenue
      in the City of Pittsburgh. Appellant is Nash’s nephew. As officers
      were responding to the injured victims they received another call
      for a disturbance at the Sunoco gas station only a few blocks
      away. The description of the perpetrators provided to police
      during the call matched the description of Nash and Hartman
      given by the victims in the 4400 block of Liberty Avenue incident.
      While driving to the Sunoco gas station the officers spotted the
      perpetrators Nash and Hartman on the street, detained them in
      the parking lot of the Sunoco, and called for backup. Officer Kevin
      Swimkosky proceeded to speak to Samuel Jowell, the complainant
      at Sunoco. Jowell stated that Nash and Hartman came to the
      Sunoco wanting to use the bathroom. Jowell informed them that
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     there were no public restrooms at which time they became
     verbally abusive and blocked the door preventing Jowell from
     closing and locking it. Additionally, Nash and Hartman used racial
     slurs and spit on Jowell twice. After taking a report from Jowell,
     Officer Swimkosky filed multiple felony charges against Nash and
     Harman as it related to the incident at the Sunoco station, as well
     as the earlier incident on Liberty Avenue.

            The next day, on October 26, 2015, Appellant visited the
     Sunoco station twice. He claimed to be looking for surveillance
     tapes in order to ascertain how Nash’s vehicle ended up with four
     slashed tires. The first time Appellant entered the Sunoco, Jowell,
     who was working at the time, indicated that Appellant should
     come back later to view the surveillance tapes. Appellant left the
     station and returned 20 minutes later with Michael Asturi, a tow
     truck driver. Jowell again indicated that they would not be able
     to view the surveillance tapes at that time. Thereafter, on October
     28, 2015, Appellant visited the Sunoco station in the late
     afternoon and spoke to Elizabeth Kufta, who was working the day
     shift. Appellant identified himself as Nash’s uncle and asked Kufta
     if she knew “what had gone down” the other night. Appellant
     asked Kufta to speak to Jowell later that night to see if he would
     agree not to press charges against his nephew, Nash. Appellant
     also requested Kufta to view surveillance tapes of the store. She
     indicated she did not have access to the surveillance tapes but
     agreed to speak with Jowell and took Appellant’s phone number.
     Appellant returned to the Sunoco station for a third time on
     October 31, 2015 and again spoke to Kufta. Kufta informed
     Appellant that she had spoken to Jowell but that she had refused
     to tell him to drop the charges. Appellant then made the
     statement, “Sam had better get another job and watch his back if
     he proceeded with the allegation.” Kufta subsequently disclosed
     the threat to Officer Swimkosky during the investigation. After
     speaking with Kufta about the threats made by Appellant, Office
     Swimkosky requested the taped phone calls of Nash from the
     Allegheny County Jail believing Nash had contacted Appellant
     regarding the incident[,] which had occurred on October 25, 2015.
     Three of the taped phone calls, October 28, 2015, October 29,
     2015, and November 4, 2015, were outgoing from Nash to
     Appellant wherein Nash made statements indicating that he was
     in a jam and needed Appellant to fix the situation further stating
     that Jowell could not testify or he would go to state prison. Based
     upon the contents of these calls Officer Swimkosky issued a
     warrant for Appellant’s arrest.

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Trial Court Opinion, 1/18/19, at 4-6 (citations and footnotes omitted).

      Appellant was charged with intimidation of witnesses or victims,

obstructing the administration of law or other government functions, and

criminal conspiracy. On January 25, 2018, Appellant proceeded to a jury trial.

At the conclusion of trial, Appellant was found guilty of obstructing the

administration of law and conspiracy.       On June 4, 2018, Appellant was

sentenced as summarized above. Appellant filed a timely notice of appeal.

Both Appellant and the trial court complied with the mandates of Pa.R.A.P.

1925, and thus, this appeal is properly before us.

      Appellant raises the following issue for our review:

      1. Did the trial court [err] in sending . . . a computer and the tape
      recordings from the [c]ounty [j]ail out to the jury during their
      deliberations[?] The proper method would be if the jury requested
      hearing the tape recordings to bring the jury back to the court
      room and play said recordings in open court.

Appellant’s brief at 3.

      The decision as to whether an exhibit should be allowed to go out with

the jury during deliberation is within the sound discretion of the trial judge,

and such choice will not be overturned absent an abuse of discretion.

Commonwealth v. Dupre, 866 A.2d 1089, 1102 (Pa.Super. 2005);

Pa.R.Crim.P. 646(A). Specifically, Pa.R.Crim.P. 646 provides as follows:

      (A) Upon retiring, the jury may take with it such exhibits as the
      trial judge deems proper, except as provided in the paragraph (B).

      (B) During deliberations, the jury shall not be permitted to have:

            (1) a transcript of any trial testimony;

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            (2) a copy of any written or otherwise recorded
            confession by the defendant;

            (3) a copy of the information;

            (4) written jury instructions.

      (C) The jurors shall be permitted to have their notes for use during
      deliberations.

Pa.R.Crim.P. 646.

      At trial, Appellant and the Commonwealth stipulated to the authenticity

of the phone calls between Appellant and his co-defendant John Nash. N.T.

Jury Trial, 1/25/18 at 38-39.     Trial counsel also did not object when the

Commonwealth moved to admit the calls and play them for the jury. Id. at

42. However, counsel did later object when the judge decided to send the

calls and a computer, along with other trial exhibits, to the jury during their

deliberations.   Id. at 185.   The trial court overruled Appellant’s objection,

finding that providing such tapes for the jury during its deliberations was not

precluded by the Pennsylvania Rules of Criminal Procedure or appellate

precedent. Id.; see also Trial Court Opinion, 1/18/19, at 7-8.

      Specifically, Appellant challenges the trial court’s application of

Pa.R.Crim.P. 646 when it decided to send an audio exhibit of recordings of

phone calls Appellant made out with the jury. Appellant cites to no authority

in support of his position other than Rule 646. While not explicitly prohibited

by Rule 646, Appellant contends that permitting the jury to review audio-




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recorded trial testimony in their deliberation was “tantamount” to giving them

a trial transcript. Brief of Appellant at 9. We disagree.

      Our Supreme Court has explicitly held that audio recordings are not

prohibited under Rule 646. See Commonwealth v. Williams, 9 A.3d 613,

622 (Pa. 2010). In Williams, the defendant alleged that permitting the jury

to review an audiotaped recording of one of the victim’s testimony in the

deliberation room violated Rule 646 because an audio recording is the

“functional equivalent” of a trial transcript. Id. The Commonwealth countered

that the term “transcript” in Rule 646 referred only to written documents. Our

Supreme Court agreed, holding that “audio-recorded testimony is not

prohibited under Rule 646.” Id. at 623. In light of the clearly-established

precedent, we conclude that the trial court did not abuse its discretion in

permitting the audio calls to go out with the jury. No relief is due.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2019




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