# Commonwealth v. Rasheed

> Supreme Court of Pennsylvania · March 27, 1990 · 392 Pa. Super. 280

URL: https://www.frixlaw.com/law-library/cases/9698912

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Abdul RASHEED, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** March 27, 1990
- **Citations:** 392 Pa. Super. 280; 572 A.2d 1232; 1990 Pa. Super. LEXIS 694
- **Precedential status:** Published
- **Opinion:** Dissent by Cirillo
- **Judges:** Cirillo, Cavanaugh, Brosky, Olszewski, Sole, Montemuro, Tamilia, Kelly, Johnson
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

CIRILLO, President Judge,
dissenting:
I respectfully dissent. I believe that Rasheed has waived the issue of whether the trial court committed reversible error by charging the jury, over the objection of defense *309 counsel, that he did not have to testify and that no unfavorable inference should be drawn against him for failing to testify. 1
A review of the record reveals the following: Attorney Mark Goodman, counsel for Rasheed, did not make any request on the record regarding the jury charge prior to the time that the trial court gave the charge. However, after the Honorable Charles Klein charged the jury and gave the fifth amendment instruction, the following exchange took place:
THE COURT: Gentlemen, before I discharge the alternate jurors in this case, I ask you if there is anything that you believe I have misstated, omitted, distorted, or overlooked in my charge to the jury? Mr. Goodman?
MR. GOODMAN: The only thing, Your Honor, is something we discussed earlier, which can’t be undone now. But I would like to put it on the record, and that is I asked the Court earlier to allow us not to charge on the defendant not testifying. I have done that because it is my belief that the charge is actually more prejudicial than nothing being said. I feel very strongly, and I do that fairly routinely. The Court had listened to me and denied my request and went ahead and instructed on the Fifth Amendment, anyway. And for that, I object. There is nothing that I can think of that I would want to say aside from that.
MR. McMONAGLE: I have nothing to add, Your Honor. THE COURT: Well, Mr. Goodman, the defendant has certain Constitutional rights. He does not have to take the witness stand, and I have pointed out the law to the jury on that. If I did not charge on that subject at your *310 request, there would be a great possibility that when this trial is over, if he is convicted, that then you would be charged with ineffective assistance of counsel. So therefore, I have a simple statement of the law on that subject. 2
On September 21, 1987, the jury found Rasheed guilty of rape and possession of an instrument of crime. Judge Klein notified Rasheed of his right to file post-trial motions and stated that anything not contained in Rasheed’s written post-trial motions would be waived. On September 25, 1987, attorney Goodman filed post-trial motions. These motions, however, did not include a claim regarding the jury instruction issue. On October 2, 1987, supplemental post-trial motions were filed by attorney Goodman in which Rasheed claimed that the trial court erred in denying his request to have the court omit the fifth amendment instruction from its jury charge. The supplemental post-trial motions also stated that the fifth amendment instruction merely emphasized the fact that Rasheed did not testify and was extremely prejudicial. Further, these motions stated that the prosecutor had no standing to object to attorney Goodman’s request to have the instruction omitted. The record shows nothing to indicate that attorney Goodman requested permission to file supplemental post-trial motions. On January 12, 1988, Rasheed filed post-trial motions pro se. These motions, like the original post-trial motions filed by attorney Goodman, did not include any claim regarding the jury instruction issue.
A review of the transcript of the hearing held on post-trial motions reveals that attorney' Goodman raised, among other issues, the jury instruction issue. At the conclusion *311 of the hearing, the trial court denied all post-verdict motions. In his opinion, Judge Klein specifically noted that he denied both sets of post-verdict motions, those filed by Rasheed pro se and those filed by defense counsel. With respect to the jury instruction issue, Judge Klein stated the following:
At the time of the argument before the [tjrial [¡'Judge at the hearing prior to sentencing, defense counsel complained about the court instructing the jury in his charge, over counsel’s objection, with respect to defendant’s decision not to take the witness stand in his own defense. Counsel did not include this objection in his written post-verdict motions. The objection must therefore as having been waived and cannot be considered for appellant relief, (emphasis added)
It is apparent that Judge Klein did not consider the merits of the jury instruction issue. I believe that the jury instruction issue is waived, for although supplemental post-trial motions were filed, they were filed without permission from the court 3 and the trial court did not consider them. See Commonwealth v. Sheaff 365 Pa.Super. 613 , 530 A.2d 480 (1987) modified per curiam 518 Pa. 655 , 544 A.2d 1342 (1988); see generally Commonwealth v. Hewett, 380 Pa.Super. 334 , 551 A.2d 1080 (1989) alloc. denied, 522 Pa. 583 , 559 A.2d 526 (1989) (court interpreted Sheaff to address appellant’s issues on the merits when although no permission was granted to file supplemental post-trial motions, the trial court had addressed the issues on their merits); Commonwealth v. Markovitch, 388 Pa.Super. 244 , 565 A.2d 468 *312 (1989) (appellant claimed that trial counsel was, ineffective for failing to file timely post-trial motions, and the record demonstrated no order granting appellant leave to file post-trial motions nunc pro tunc; however, because the trial court, at the hearing on post-trial motions, indicated that it would accept the untimely filed motions and consider them on the merits, and because the trial court’s opinion addressed the merits of these motions, we found that the appellant had not waived the issues contained in those motions); Kurtas v. Kurtas, 521 Pa. 105, 109 , 555 A.2d 804, 806 (1989) (plurality) (our supreme court stated that “the trial court chose to ignore the untimely filing of appellant’s post-trial motions and addressed the merits of the alleged errors. Such consideration was permitted under [Pa.R.C.P.] 126 and did not affect the trial court’s jurisdiction, the superior court erred in not reviewing the merits of the appeal”).
Had this issue been properly before this court I would have joined the well-reasoned concurring and dissenting opinion authored by Judge Johnson.
. Rasheed presents the issue on appeal as
Did not the trial court err by instructing the jury, over defense objection, with regard to appellant’s silence at trial, where the defense objection to said instruction was premised on a reasonable trial strategy of not emphasizing appellant’s failure to testify, and was in conformity with the holding of this Court, en banc, in Commonwealth v. Danzy, that "whether the charge is given is the defendant’s choice”?
. As noted in the text, the record before us does not contain attorney Goodman's request to have Judge Klein omit the fifth amendment instruction prior to the time Judge Klein charged the jury. However, the exchange among counsel and Judge Klein demonstrates that attorney Goodman did make such a request, perhaps through his written points for charge or in a discussion off the record. Because I believe that the issue on appeal has not been properly preserved through the post-trial motion procedure, I will not delve into whether the issue was properly raised and preserved during the trial.
. Rasheed incorrectly concludes that the trial court granted him permission to file supplemental post-trial motions. Judge Klein, after advising the defendant of his right to file post-trial motions within ten days, stated "[h]owever, additional grounds raised in support of such motions may be filed in writing after the transcription of the record if the transcript is necessary for these additional grounds.” I do not believe that Judge Klein’s statement nullifies the requirement that counsel obtain permission to file supplemental post-trial motions. Commonwealth v. Mistretta, 364 Pa.Super. 332 , 528 A.2d 184 (1987). Moreover, Rasheed does not aver that the motions were filed after the original post-trial motions because transcription of the record was necessary to raise those issues contained in the supplemental post-trial motions.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9698912. Public record. Not legal advice.