Commonwealth v. Pressley

887 A.2d 220, 584 Pa. 624, 2005 Pa. LEXIS 2682

• Court: Supreme Court of Pennsylvania
• Decided: November 29, 2005
• Docket: 28 EAP 2004
• Status: Published

Opinions

OPINION

Justice SAYLOR.

In this case, we consider the proper procedure to preserve an issue respecting proposed jury instructions under the Rules of Criminal Procedure.

On the afternoon of July 15, 2001, Latoya Butler and the victim, Kareem Williams, were sitting on the front steps of a neighbor’s home in Philadelphia when Appellant approached and asked to speak with Williams. Appellant and Williams walked a short distance and spoke for a few minutes, after which Williams departed as if he were upset. As Williams proceeded down the sidewalk and around the corner, Appellant stated, “you better come back with something big because I’m playing with them big boys.” Appellant and his brother, Damien Pressley, pursued Williams and, as they passed, Ms. Butler followed. When she turned the corner, Ms. Butler observed that Appellant had pinned Williams against a parked car, and that Appellant’s brother was striking Williams. Ms. Butler also noticed that Appellant and his brother were rifling through William’s pants pockets, removing drugs and money. Appellant’s brother then stepped away, raised his arm, and fired a single shot at Williams, stating afterward, “you want some more, you want some more?” Appellant and his brother fled from the scene. Williams died as a result of the gunshot wound, and Appellant was charged with murder, criminal conspiracy, robbery, and related offenses.

At the ensuing jury trial, the Commonwealth presented, inter alia, testimony both from Ms. Butler regarding the above events, and the initial investigating detective, who related the statements given by Ms. Butler and indicated that he had submitted the affidavit of probable cause to the District Attorney’s Office and that it had been approved. Appellant testified in his own defense, admitting to having engaged in a mutual scuffle with Williams over remarks that he had made, but denying involvement in a robbery, instead claiming that his brother, Damien, had unexpectedly shot Williams during the fight. Near the close of testimony, counsel for Appellant submitted proposed points for charge that included a request for a missing evidence instruction, see Pa. SSJI (Crim.) 3.21B, based upon the Commonwealth’s failure to produce the copies of the probable cause affidavit that were submitted to and approved by the District Attorney’s Office.¹ Counsel also requested that the jury be instructed that they could find Appellant guilty of simple assault by virtue of mutual scuffle, see 18 Pa.C.S. § 2701(b)(1),² as a lesser-included offense of robbery. See generally Commonwealth v. Gilliam, 302 Pa.Super. 50, 52 n. 1, 448 A.2d 89, 90 n. 1 (1982) (noting that, for purposes of sentencing, conviction for simple assault merged with that for robbery).

Prior to closing arguments, the trial court rejected Appellant’s proposed points for charge on the record, explaining with respect to the missing evidence request:

[The Court]: Pm not going to give failure to produce documents because you received the document in discovery. You have the document. If you want to introduce it, go right ahead and do it.

Regarding the simple assault instruction, the court observed that Appellant had not been charged with an assault and declined to issue this instruction, offering the following reasoning:

I understand the argument. With respect to the Defendant’s request for a charge on simple assault, a misdemean- or of the third degree or second degree, the Defendant has, by taking the stand, inserted or admitted to a possible crime, if you accept his testimony, of simple assault, a misdemeanor of the third degree, saying we entered into a fight.

The court analyzes it this way, for example, in this case, suppose this is a murder case and the defendant says on the stand, “I was [not] involved in a murder, I was caught stealing a car.” The court would not charge on auto theft. This seems to be a tactful move on the Defendant’s part simply to insert an offense that is not in this case and to bolster his defense.

With respect to these cases that the defense has submitted ..., the simple assault that those cases talk about, these are simple assaults where there is a knowing and intentional causing or attempting to cause bodily injury to another individual, not to mutually entered into a fight, an M-3 simple assault.

Accordingly, your request is denied.

Counsel did not object or take exception to the rulings. Following the jury charge, the court inquired of counsel whether he wanted any additional instructions or corrections; he responded in the negative. The jury convicted Appellant of third-degree murder and related offenses, and he was thereafter sentenced to an aggregate term of imprisonment of 20 to 40 years.

On appeal, Appellant asserted, inter alia, trial court error in failing to issue instructions on missing evidence and simple assault as a lesser-included offense. In a memorandum decision, the Superior Court acknowledged that Appellant had requested the instructions and that the trial court’s ruling was on the record, but noted that Appellant did not make a specific objection at the conclusion of the charge. The court observed that Criminal Procedural Rule 647(B) states that, to preserve an issue as to a portion of a charge, a party must make a specific objection before the jury retires to deliberate.³ Consistent with this requirement, the court cited to a line of authority for the proposition that a specific objection following the jury charge is necessary to preserve an issue concerning the instructions, even where points for charge were submitted by a defendant and denied by the trial court. See Commonwealth v. Galloway, 495 Pa. 535, 538, 434 A.2d 1220, 1221 (1981) (citing Pa.R.Crim.P. 1119(B) (re-numbered as Pa. R.Crim.P. 647(B)); Commonwealth v. Brown, 490 Pa. 560, 570, 417 A.2d 181, 187 (1980)); Commonwealth v. Martinez, 475 Pa. 331, 337, 380 A.2d 747, 750 (1977) (plurality); Commonwealth v. Hilton, 461 Pa. 93, 96, 334 A.2d 648, 650 (1975) (plurality). As Appellant failed to object following the charge, the Superior Court concluded that he had waived any issues respecting the instructions.

Appellant sought review by this Court, arguing that the Superior Court misconstrued Rule 647(B) and failed to recognize a divergent line of authority that has treated issues respecting jury instructions as preserved, .even in the absence of a specific objection following the charge, where, as here, points for charge were timely offered and rejected by the trial court. See Commonwealth v. Williams, 463 Pa. 370, 373 n. 1, 344 A.2d 877, 879 n. 1 (1975); see also Commonwealth v. Miller, 490 Pa. 457, 470 n. 9, 417 A.2d 128, 135 (1980); Commonwealth v. Ernst, 476 Pa. 102, 108 n. 9, 381 A.2d 1245, 1247 n. 9 (1977) (opinion in support of affirmance); Commonwealth v. Palmer, 467 Pa. 476, 481 n. 3, 359 A.2d 375, 378 n. 3 (1976); Commonwealth v. Sisak, 436 Pa. 262, 269-70, 259 A.2d 428, 432 (1969). Given the conflicting case law in this area,⁴ appeal was allowed to clarify the proper procedure.

In this regard, the plain language of Rule 647(B) requires a specific objection to assign error to a controverted aspect of or omission from a jury charge. See Pa.R.Crim.P. 647(B).⁵ As important, Rule 603, which abrogates the necessity of taking an exception to a ruling, specifically excludes issues related to jury instructions, providing:

(A) Any ruling of the judge on an objection or motion made during the trial of any action or proceeding shall have the effect of a sealed exception in favor of the party adversely affected without the necessity of a formal request or notation made on the record.

(B) This rule shall not be applicable to the charge to the jury.

Pa.R.Crim.P. 603. The pertinent rules, therefore, require a specific objection to the charge or an exception to the trial court’s ruling on a proposed point to preserve an issue involving a jury instruction.⁶ Although obligating counsel to take this additional step where a specific point for charge has been rejected may appear counterintuitive, as the requested instruction can be viewed as alerting the trial court to a defendant’s substantive legal position,⁷ it serves the salutary purpose of affording the court an opportunity to avoid or remediate potential error, thereby eliminating the need for appellate review of an otherwise correctable issue. See Martinez, 475 Pa. at 337-38, 380 A.2d at 750-51. This is particularly so where a judge believes that the charge adequately covered the proposed points. Moreover, charging requests are frequently submitted in advance of or during trial, with the relevance or necessity of a proposed instruction being of different significance as a result of subsequent events. See generally United States v. Crowley, 318 F.3d 401, 412-13 (2d Cir.2003) (emphasizing that “[t]he distinction between requests to charge and specific objections at a charging conference is significant[,]” and discussing the rationale for the specific objection requirement). Similarly, a judge’s perspective concerning a particular point may be altered based upon a party’s arguments. See generally id.8

Presently, although counsel did not take an exception or lodge an objection at the time of the rulings on his proposed instructions or following the charge, there was existing authority under which Appellant’s jury instruction issues would have been treated as adequately preserved. See Williams, 463 Pa. at 373 n. 1, 344 A.2d at 879 n. 1.⁹ While such authority is disavowed to the extent that it is contrary to the language of Rules 603 and 647(B), Appellant cannot be faulted for relying upon it. Consequently, the clarification of the procedure for preserving an issue involving a jury instruction is prospective.

We hold that under Criminal Procedural Rules 603 and 647(B), the mere submission and subsequent denial of proposed points for charge that are inconsistent with or omitted from the instructions actually given will not suffice to preserve an issue, absent a specific objection or exception to the charge or the trial court’s ruling respecting the points.¹⁰

As this holding is prospective, the order of the Superior Court is vacated, and the matter is remanded for consideration of Appellant’s claims respecting his proposed points for charge.

Chief Justice CAPPY, Justice NEWMAN and Justice EAKIN are with the opinion. Justice CASTILLE files a concurring opinion. Justice BAER files a concurring and dissenting opinion in which Justice NIGRO joins.

1 . At trial, Appellant challenged the facts supporting the robbery, emphasizing that Ms. Butler's initial statement to the police did not include an allegation of robbery, and highlighting the absence of a specific reference to such offense in the probable cause affidavit. The Commonwealth pointed out, however, that the affidavit indicated that Appellant and his brother were reaching into the victim’s pockets during the struggle. In response, counsel argued that the affidavit produced at trial was not the one submitted to or approved by the District Attorney’s Office.

2 . A simple assault arising from a fight entered into by mutual consent is graded as a misdemeanor of the third degree. See 18 Pa.C.S. § 2701(b)(1).

3 . Rule 647 provides, in relevant part:

(A) Any party may submit to the trial judge written request for instructions to the jury. Such requests shall be submitted within a reasonable time before the closing arguments, and at the same time copies thereof shall be furnished to the other parties. Before closing arguments, the trial judge shall inform the parties on the record of the judge’s rulings on all written requests. The trial judge shall charge the jury after the arguments are completed.

(B) No portions of the charge nor any omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury.

Pa.R.Crim.P. 647(A), (B).

4 . In his concurring and dissenting opinion, Mr. Justice Baer suggests that there is some underlying consistency among the two lines of this Court's decisions that favors adherence to the 'Williams line. See Concurring and Dissenting Opinion, at 637-40, 887 A.2d at 228-29 (Baer. J.). The analysis offered in support of such suggestion, however, affords no express consideration to various of the cases that have postdated the 1975 Williams decision that is selectively highlighted in the concurring and dissenting opinion. See, e.g., Galloway, 495 Pa. at 538, 434 A.2d at 1221 (reflecting the Court's 1981 holding that “Appellant is not in a position to assert the impropriety of the denial of his points for charge since no specific objections were raised following the charge”); Commonwealth v. Brown, 490 Pa. 560, 570, 417 A.2d 181, 187 (1980) (applying former Rule 1119(B) in a 1980 decision).

Notably, the Superior Court has recognized the inconsistency between the Galloway and Williams lines and concluded that it was bound to apply this Court’s most recent holding enforcing the rule-based requirement of a specific objection, as reflected in Galloway. See Commonwealth v. Rineer, 310 Pa.Super. 241, 248-49 & n. 4, 456 A.2d 591, 594-95 & n. 4 (1983).

5 . The Rules of Criminal Procedure are to "be construed in consonance with the rules of statutory construction^]” Pa.R.Crim.P. 101(C), which require, inter alia, that provisions be interpreted in accordance with the plain meaning of their terms. See 1 Pa.C.S. § 1903(a).

6 . Notably, the Federal Rules of Criminal Procedure impose an identical requirement, stating;

(d) Objections to Instructions. A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate. An opportunity must be given to object out of the jury’s hearing and, on request, out of the jury’s presence. Failure to object in accordance with this rule precludes appellate review, except as permitted under Rule 52(b).

Fed.R.Crim.P. 30(d); see also Jones v. United States, 527 U.S. 373, 387-88, 119 S.Ct. 2090, 2101-02, 144 L.Ed.2d 370 (1999).

7 . Indeed, this was the sole reason offered in Williams for departing from the language of the rules. See Williams, 463 Pa. at 373 n. 1, 344 A.2d at 879 n. 1.

8 . Accordingly, Mr. Justice Baer’s characterization notwithstanding, we do not view the requirement of our existing Rule of Criminal Procedure, which in substance mirrors that which is in longstanding application in the federal system, as hyper-technical.

As to Mr. Justice Castille’s vision of a hybrid approach that would require the lodging of specific objections/exceptions relative to the particular framing of points for charge, but not to the wholesale omission of requested points, see Concurring Opinion at 632-35, 887 A.2d at 225-26 (Castille, J.), we do not wholly discount the benefits that might attend such a scheme. We are also cognizant, however, of the practical difficulties that would arise in distinguishing between these two categories in the myriad range of circumstances that arise in the trial setting. Moreover, we differ with Justice Castille’s view that our current rules encompass such a hybrid scheme, since Rule 647(B)'s requirement of specific objections is by its terms applicable to omissions from a court’s charge, see Pa.R.Crim.P. 647(B), and we must respectfully disagree with Justice Castille's position that a trial court’s decision to omit a requested point for charge is not a complained-of omission under the rule, see Concurring Opinion, at 633-35, 887 A.2d at 226 (Castille, J.). Additionally, Justice Castille offers no account for Rule 603(B)’s perpetuation of the requirement of exceptions as pertains to jury instructions.

In light of the relatively clear terms of the existing rules, we believe that it is preferable to proceed through the rulemaking avenue, rather than by case decision, to evaluate the merits of potential alterations to those rules.

9 . This interpretation was also supported by practice materials in this area. See, e.g., 27 Standard Pennsylvania Practice 2d § 135:310 (2003).

10 . Our holding does not address the essential procedure for preserving a claim of error relative to a court’s charge in the civil context. Notably, the governing rules in that arena are framed differently; for example, a specific objection requirement is not included in the rule addressing points for charge, see Pa.R.C.P. No. 226(a), and the rule eliminating the need for exceptions is not as explicit as its criminal counterpart in excluding jury instruction issues. See Pa.R.C.P. No. 227(b). Furthermore, a number of decisions have indicated that the submission of a point for charge is sufficient to preserve a civil instruction issue. See, e.g., Broxie v. Household Fin. Co., 472 Pa. 373, 377, 372 A.2d 741, 743 (1977).