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Commonwealth v. Ogrod12/30/2003
urred. Rule 115(C) provides " t any time before an appeal is taken the court may correct or modify the record in the same manner as provided by Rule 1926 of the Pennsylvania Rules of Appellate Procedure." Rule 1926 provides, in pertinent part, "if any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to conform to the truth." In this case, the trial court conducted a hearing to determine the true content of the record and had the benefit of listening to the testimony of the stenographer, who testified that the trial judge properly used the word unanimously, but that the stenographer had mistakenly transcribed the word. N.T. 5/25/00 at 6-15. The trial court, thereby, properly applied the statute and corrected the transcript. Commonwealth v. Harris, 703 A.2d 441, 450 (Pa.1997), cert. denied, 525 U.S. 1015 (1998).
We also reject Appellant's claim of trial counsel ineffectiveness for failing to object to a proper charge. Similarly, the claim of Appellant that he received ineffective assistance of counsel due counsel's failure to argue that the charge did not properly explain the verdict slip is not meritorious because the actual charge the judge read to the jury was correct.
C. Appellant Claims That The Trial Court Improperly Instructed The Jury On Mitigation Evidence.
Appellant argues that the trial court should have given a curative instruction to the jury because, he contends, the prosecutor led the jury to believe that it could only consider the mitigating circumstances of extreme mental or emotional disturbance and diminished capacity (42 Pa.C.S. § 9711(e)(3) and (4)) and not other mental and emotional factors relevant to the catchall mitigator. 42 Pa.C.S. § 9711(e)(8). The prosecutor did no such thing. The prosecutor merely pointed out that Dr. Ganime, the psychiatrist who testified on behalf of Appellant, did not state that Appellant suffered from a severe mental illness. He agreed with the prosecutor that Appellant was not suffering from a major mental illness because he did not have schizophrenia, bipolar disorder, or another major depressive disorder. N.T. 10/9/96 at 33, 80-82. As to mental or emotional disturbance, the prosecutor accurately referred to the testimony when she stated:
Did you hear anything that amounts to extreme mental or emotional disturbance? What you heard is that the defendant was concerned about money, he was concerned about where he was going to live, he was concerned about his job, same kind of things that we're all concerned about. He wasn't seeing a psychiatrist because he had any major mental illness, he was seeing a doctor so he would have somebody to talk to when he felt like talking and to get some advice.
Id. at 80. With regard to the catchall mitigator and the claim of Appellant that his emotional distress should be deemed to satisfy it, the prosecutor did not say that Appellant had to be suffering from major mental illness for the jury to consider the claim of Appellant that his alleged emotional disturbance satisfied the catchall. She merely pointed out that "he was not emotionally disturbed at the time of the killing that there has been no such diagnosis that he suffered from childhood abuse that affected his emotional and psychological development." N.T. 10/9/96 at 98-100. Significantly, the trial court instructed the jury that it must consider the catchall mitigator and that it could consider the emotional and mental condition of Appellant there. The trial court charged the jury that it:
may consider any other eviden
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Pennsylvania DUI Attorneys
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