Commonwealth v. Bango
Commonwealth v. Bango
Opinion of the Court
OPINION OF THE COURT
This Court granted review in this matter to determine whether the Superior Court erred in concluding that the trial court did not abuse its discretion by permitting the jury to review transcripts of tape-recorded conversations during its deliberations. For the reasons that follow, we affirm the Superior Court.
On June 12, 1995, appellant was tried before a jury on twenty-eight counts of Possession with Intent to Deliver a Controlled Substance
At appellant’s trial, the prosecution played each of the fifty-three tape-recorded conversations to the jury. Prior to playing the tapes, the prosecution distributed previously-prepared transcripts of the tapes to each member of the jury to assist them in following the conversations.
Near the close of its case, the prosecution moved for the admission of its exhibits into evidence, including the transcripts of the tape-recorded conversations. The trial judge admitted the transcripts into evidence over the objection of appellant’s trial counsel.
After approximately two hours of deliberation, the jury sent a note to the trial judge with several requests. First, the jury asked that the names of the individuals who were involved with appellant in each of his twenty-eight counts of Possession
Again, and this is really important and I want to really stress this to you, in deliberations those transcripts are not the evidence. The evidence is the tapes and so that is what you should rely on and not the transcripts but I will send the transcripts out with you to help you identify what tape it is that you are looking for and listening to and guide you somewhat as to what you are hearing but again I can’t stress this strongly enough that the tapes themselves and what is on those tapes is the evidence that you should consider.
N.T. 6/16/95 at 424.
The jury completed its deliberations and reached a verdict approximately twenty minutes after the trial judge granted the jury’s request to review the tape recordings and their corresponding transcripts. The jury found appellant guilty of twenty-three counts of Possession with Intent to Deliver a Controlled Substance and one count of Criminal Conspiracy. On July 13, 1995, appellant was sentenced to an aggregate term of six to eighteen years’ imprisonment. On appeal, the Superior Court affirmed appellant’s judgment of sentence. This Court granted allocatur to determine whether the trial court abused its discretion in allowing the jury to review the transcripts of the tape-recorded conversations during its deliberations.
Rule 1114 of the Pennsylvania Rules of Criminal Procedure states that “... the jury may take with it [during deliberations] such exhibits as the trial judge deems proper.” Pa. R.Crim.P. 1114(1). Nevertheless, there are some items that the jury is never permitted to take with it during its delibera
The transcripts given to the jury in the instant case do not fall into any of the categories of items specifically prohibited either by Pa.R.Crim.P. 1114(2) or by case law. Therefore, we must determine whether the trial court abused its discretion by permitting the jury to review the transcripts in conjunction with the tapes during its deliberations. Commonwealth v. Hawkins, 549 Pa. 352, 393, 701 A.2d 492, 512 (1997)(trial court’s decision as to which exhibits may be taken out with the jury will not be reversed absent abuse of discretion so long as exhibits are not strictly prohibited by court rule or case law). We will deem a trial court to have abused its discretion only if we determine that the trial court’s ruling exhibited manifest unreasonableness, partiality, prejudice, bias or such lack of support as to render it clearly erroneous. Paden v. Baker Concrete Constr., Inc., 540 Pa. 409, 413, 658 A.2d 341, 343 (1995). We will not condemn a trial court’s ruling as an abuse of discretion merely because we might have reached a different conclusion had the decision been ours in the first instance. Id.
Here, in light of the meticulous care taken by the trial court to ensure that the jury understood that the transcripts were to be used only as guideposts and not as verbatim translations, we cannot characterize the trial court’s decision to permit the jury to use the transcripts as manifestly unreasonable. Hawkins, supra. It is axiomatic that a trial is a search for the truth. The jury should be assisted, not hindered, in conducting that search. Here, it is plain that the jury was seeking a complete understanding of how the voluminous evidence related to the specific crimes with which appellant was charged. After two hours of deliberation, the jury asked for the name of each person involved with appellant in
As the Superior Court properly noted, this is the conclusion that has been reached uniformly by the federal circuit courts that have addressed this issue, all of which have determined that it is permissible for jurors to review transcripts of tapes so long as a limiting instruction is issued and the person responsible for the transcription can be cross-examined with the opportunity for an alternative transcription to be presented by the defendant. See, Commonwealth v. Bango, 454 Pa.Super. 339, 343, 685 A.2d 564, 565-66 (1996), citing United States v. Scarborough, 43 F.3d 1021 (6th Cir. 1994), United States v. Crowder, 36 F.3d 691 (7th Cir. 1994), cert. denied, 513 U.S. 1171, 115 S.Ct. 1146, 130 L.Ed.2d 1105 (1995), United States v. Taghipour, 964 F.2d 908 (9th Cir. 1992), cert. denied, 506 U.S. 899, 113 S.Ct. 283, 121 L.Ed.2d 210 (1992), United States v. Nixon, 918 F.2d 895 (11th Cir. 1990), United States v. Puerta Restrepo, 814 F.2d 1236 (7th Cir. 1987), United States v. Costa, 691 F.2d 1358 (11th Cir. 1982), United States v.
In sum, we conclude that the trial court did not abuse its discretion by permitting the jury to view the transcripts. Accordingly, we affirm.
. 35P.S. § 780-113(a)(30).
. 18 Pa.C.S. § 903.
. The audiotapes were acquired pursuant to the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §§ 5701 et seq. After taping these conversations, the police secured the cooperation of many of the individuals whose telephone conversations with appellant had been recorded.
. Before the trial judge permitted the prosecution to distribute the transcripts, he cautioned the jury that the tapes, and not the transcripts, were the actual evidence. In addition, the judge noted that the only
. The Superior Court erroneously assumed that the transcripts had not been admitted into evidence. Commonwealth v. Bango, 454 Pa.Super. 339, 342, 685 A.2d 564, 565 (1996). Accordingly, the Superior Court proceeded to consider the question of whether transcripts that had not been admitted into evidence could be given to the jury during its deliberations. Since the record reflects that the transcripts were in fact admitted into evidence, the question of whether the trial court abused its discretion in permitting the jury to deliberate with items that have not been admitted into evidence is not before this Court.
Dissenting Opinion
dissenting.
I respectfully disagree with the majority’s conclusion that the trial court did not abuse its discretion by permitting the jury to review transcripts of tape-recorded conversations during its deliberations. Accordingly, I dissent.
The majority correctly notes that since the transcripts given to the jury in the instant case do not fall into any of the categories of items specifically prohibited by Pa.R.Crim.P. 1114(2) or the case law, the question becomes whether the trial court abused its discretion by permitting the jury to review the transcripts during its deliberations. See, e.g., Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492, 512 (1997)(trial court’s decision as to which exhibits may be taken out with the jury will not be reversed absent abuse of discretion so long as exhibits are not strictly prohibited by court rule or case law). An abuse of discretion will only be found where a lower court has “ ‘overridden or misapplied [the law], or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence of record....’” Commonwealth v. Rucci, 543 Pa. 261, 285, 670 A.2d 1129, 1141 (1996)(quoting Melzer v. Witsberger, 505 Pa. 462, 475, 480 A.2d 991, 997 (1984)). Where the probative value of properly admitted evidence outweighs its prejudicial value, there is no abuse of discretion. Id., 543 Pa. at 286, 670 A.2d at 1141.
Appellant argues that the trial court abused its discretion by permitting the transcripts to be sent out with the jury during its deliberations because the transcripts have the same potential to be unduly emphasized by the jury during its deliberations as does transcribed trial testimony, which is prohibited from being sent out with the jury by Pa.R.Crim.P. 1114(2). Furthermore, Appellant contends that the procedural safeguards present in the instant case
The Pennsylvania Rules of Criminal Procedure have been designed in part to ensure that jury verdicts are based on jurors’ collective recollection of all of the evidence and testimony presented to them during the course of the trial. Therefore, the Rules attempt to limit the opportunity for juries to unduly emphasize individual pieces of evidence. For example, Pa.R.Crim.P. 1113 prohibits jurors from taking notes during the course of trials because they might place undue emphasis and reliance on their notes, rather than rely on their collective recollection of the evidence and testimony presented at the trial. See Pa.R.Crim.P. 1113; Thornton v. Weaber, 380 Pa. 590, 596-97, 112 A.2d 344, 347-48 (1955)(discussing rationale underlying the prohibition of juror note-taking in the Commonwealth of Pennsylvania); see also Commonwealth v. Kelly, 245 Pa.Super. 351, 373, 369 A.2d 438, 451 (1976)(Hoffman, J. dissenting). Similarly, Pa.R.Crim.P. 1114(2) prohibits trial judges from permitting a jury to review transcripts of trial testimony during its deliberations, because of the risk that the jury will place undue emphasis on the testimony set forth in the transcripts and abandon its duty to rely on its collective recollection of the evidence and testimony presented at trial. See Pa.R.Crim.P. 1114(2); Commonwealth v. Canales, 454 Pa. 422, 427-28, 311 A.2d 572, 575 (1973)(discussing rationale underlying the long-standing rule in the Commonwealth of Pennsylvania that portions of trial transcripts may not be sent out with the jury during its deliberations).
In the instant case, the majority concludes that the trial court did not abuse its discretion by permitting the transcripts to go out with the jury during its deliberations because the trial court gave cautionary instructions to the jury concerning the limited purpose for which it could use the transcripts. However, the prejudicial effect of the transcripts in the instant case is not grounded in the failure of the trial court to adequately instruct the jury as to the limited purpose(s) for which it could use them. Rather, the prejudicial effect of the transcripts is grounded in the opportunity for the jury to place
Therefore, I agree with Appellant, that the procedural safeguards that were present in the instant case did not, and could not, ameliorate the prejudicial effect of the jury’s opportunity to review the transcripts during its deliberations. In addition, I believe that the dangers to the deliberative process that are created when a trial court permits a jury to review transcripts of tape-recorded conversations during its deliberations outweigh any potential probative value that the transcripts may have. Accordingly, I would find that the trial court’s decision to permit the jury to review the transcripts of the tape-recorded conversations during its deliberations was manifestly unreasonable, and therefore constituted an abuse of its discretion.
. The procedural safeguards that Appellant refers to were his opportunity to challenge the accuracy of the transcripts both prior to and during his trial and the cautionary instructions that the trial court gave the jury concerning the limited purpose for which it could use the transcripts.
. In my view, the transcripts of the tapes provided to the jury during its deliberations in the instant case were tantamount to transcripts of trial testimony, which juries are never permitted to take with them during their deliberations pursuant to Pa.R.Crim.P. 1114(2). In much the same manner as calling individuals to testify at trial, playing the tapes for the jury allowed it to hear Appellant and numerous other individuals relay information concerning the drug transactions which formed the basis of the Commonwealth’s case against Appellant. Therefore, I fail to see an appreciable distinction between permitting a jury to review transcripts of live trial testimony and permitting the jury in the instant case to review the transcripts of the tape-recorded conversations. In addition, I see little difference between permitting the jury to review a defendant’s recorded confession during its deliberations, which is prohibited by Pa.R.Crim.P. 1114(2), and permitting the jury to review the transcripts during its deliberations in the instant case. In the taped conversations that were the subject of the transcripts here, Appellant himself discussed multiple potential purchases and sales of illegal drugs. Although the tapes do not technically constitute confessions by Appellant to the crimes with which he was charged, I believe that the potential prejudicial effect of the transcripts is similar, if not identical to the prejudicial effect that would result from the jury having an opportunity to review a defendant’s recorded confession during its deliberations.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellee, v. David John BANGO, Appellant
- Cited By
- 21 cases
- Status
- Published