J-S52026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


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
____________________________________________


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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