J-A17009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JACK HYNSON : : Appellant : No. 1037 EDA 2016
Appeal from the Judgment of Sentence March 3, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001272-2015
BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 31, 2017
Appellant, Jack Hynson, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
bench trial conviction for escape.1 We affirm.
The trial court opinion sets for the relevant facts of this case as
follows:
On March 23, 2007, [Appellant] pled guilty to aggravated assault and possessing instruments of crime [(“PIC”)] and, on June 14, 2007, was sentenced to 7½ to 15 years of incarceration on the aggravated assault charge and 2½ to 5 years of incarceration on the PIC charge, to run concurrently. [Appellant] was paroled on May 27, 2014….
(Trial Court Opinion, filed September 27, 2016, at 1). Appellant was ____________________________________________
1 18 Pa.C.S.A. § 5121.
_____________________________
*Retired Senior Judge assigned to the Superior Court. J-A17009-17
released on parole to the Kintock-Erie Parole Violation Center (“KPVC”). On
September 9, 2014, Appellant absconded from KPVC. Appellant turned
himself in on December 1, 2014, and was subsequently detained as a parole
violator in the parole violator section of KPVC.
The trial court opinion continues:
On December 15, 2014, at approximately 1:10 p.m., [Appellant] was escorted to Episcopal Hospital (“Episcopal”) on an approved emergency medical pass. Upon arrival, a paramedic opened the ambulance door and [Appellant] ran from the ambulance and Michael Marrero, the [KPVC] resident supervisor who had accompanied him. Mr. Marrero instructed [Appellant] to stop several times, but he failed to comply. Mr. Marrero never gave [Appellant] permission to leave his custody.
(Id. at 1-2) (internal citations to record omitted). Police arrested Appellant
on December 23, 2014. The Commonwealth charged Appellant with escape.
On October 22, 2015, Appellant proceeded to a bench trial. The trial
court opinion continues:
The [c]ourt colloquied [Appellant] on whether he wished to testify at trial. After stating that he had decided to testify, on direct examination [Appellant] testified solely about a document containing the conditions governing his parole and re-parole. The Commonwealth then cross-examined [Appellant] on the events that took place on December 15, 2014, the day of his escape. [Appellant] testified that on December 15, 2014, he was transported to Episcopal in an ambulance with Mr. Marrero escorting him. [Appellant] was escorted to the hospital for chest pains that he had been experiencing that day and the day before. Upon arriving at Episcopal, [Appellant] informed Mr. Marrero that he wanted to go to Temple Hospital, but Mr. Marrero refused. [Appellant] testified that Temple Hospital had his records since he had been there the day before, also because of his chest pains. He further testified that the
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only hospitals that had records about this condition were Temple Hospital and Aria Hospital. [Appellant] proceeded to walk from Episcopal to Temple Hospital after Mr. Marrero told him he was to be treated at Episcopal. [Appellant] testified that, after walking to Temple Hospital, he called [KPVC] and was informed that he was in escape status and a warrant was going to be issued for his arrest. [Appellant] never attempted to return to [KPVC]. Despite knowing a warrant for his arrest was going to be issued, [Appellant] never turned himself in to the police.
(Id. at 2-3) (internal citations to record omitted)
Mr. Marrero testified at trial on behalf of the Commonwealth. Mr.
Marrero testified that he was a resident supervisor at KPVC on December 15,
2014. Mr. Marrero explained that, generally, KPVC permitted a resident to
leave the facility unsupervised via ambulance to receive medical attention.
Mr. Marrero added that a resident must report back to KPVC after receiving
treatment. Mr. Marrero further explained that when a parole violator
requires medical attention, a KPVC supervisor escorts the parole violator to
the hospital, remains with the parole violator throughout treatment at the
hospital, and transports the parole violator back to KPVC. Mr. Marrero
admitted he had no independent recollection of the incident, but he recalled
Appellant and the incident after he reviewed the Emergency Occurrence
Report he had drafted to document the December 15, 2014 incident. (N.T.
Trial, 11/24/15, at 35-43).
Jason McClean, a Department of Corrections employee, also testified
on behalf of the Commonwealth. Mr. McClean testified that he is a contract
facility coordinator for the Department of Corrections. Mr. McClean
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explained he is responsible for maintaining the records for contract facilities
in Philadelphia that house parole violators and parolees, such as KPVC. Mr.
McClean stated he maintains records that show inmate transfers from facility
to facility, as well as inmates’ violations, dates of arrival, participation in
programs, and medical and legal status. Mr. McClean testified the records
he maintains are created by someone with knowledge of the records’ content
at or near the time they were created. Mr. McClean said he is a custodian of
inmate records for parolee and parole violation centers in Philadelphia. Mr.
McClean explained Mr. Marrero’s Extraordinary Occurrence Report indicates
that as of December 15, 2014, Appellant was a parole violator. (N.T. Trial,
10/22/15, at 9-49).
Mr. McClean also testified that, in general, a Pennsylvania Board of
Probation and Parole Checklist (“Checklist”) documents the status of a
parolee, including the terms of parole a parolee violated and where a parolee
was detained. Mr. McClean stated a member of the Central Referral Unit at
the Department of Corrections creates the Checklist after a supervising
agent reports a violation. Mr. McClean explained Appellant’s Checklist
specifically lists Appellant as an “absconder,” and places Appellant at KPVC.
Mr. McClean also testified that a residents’ confinement within the parole
violator section of KPVC signifies the resident had violated parole. (Id.)
On November 24, 2015, the court convicted Appellant of escape. The
court sentenced Appellant, on March 3, 2016, to eleven and a half (11½) to
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twenty-three (23) months’ incarceration, plus three (3) years’ probation.
Appellant timely filed a notice of appeal on March 31, 2016. On April 4,
2016, the court ordered Appellant to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b); Appellant complied on
August 4, 2016.2
Appellant raises the following issues for our review:
[WHETHER] THE EVIDENCE WAS INSUFFICIENT TO PROVE [APPELLANT] GUILTY BEYOND A REASONABLE DOUBT OF ESCAPE WHERE THE EVIDENCE WAS INSUFFICIENT TO PROVE APPELLANT WAS IN OFFICIAL DETENTION?
[WHETHER] THE [TRIAL] COURT ABUSED ITS DISCRETION AND VIOLATE[D] APPELLANT’S RIGHT TO CONFRONT WITNESSES AGAINST HIM UNDER THE STATE AND FEDERAL CONSTITUTIONS BY ALLOWING THE ADMISSION OF TESTIMONIAL AND UNRELIABLE DOCUMENTARY EVIDENCE TO PROVE AN ELEMENT OF THE OFFENSE?
(Appellant’s Brief at 3).
In his first issue, Appellant argues the evidence at trial was insufficient
to sustain a conviction for escape. Specifically, Appellant contends the
Commonwealth failed to prove Appellant was in “official detention” at KPVC
on December 15, 2014. Appellant avers the Commonwealth presented
inconclusive evidence that Appellant was detained as a parole violator at the
____________________________________________
2 In its Rule 1925(b) order, the court directed Appellant to file a Rule 1925(b) statement within 21 days from the entry of the court’s Rule 1925(b) order or 21 days after the trial transcripts became available, whichever occurs later. In his Rule 1925(b) statement, Appellant provided that he received the trial transcripts on July 21, 2016.
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time of the incident. Appellant insists he did not violate the escape statute,
because the statute expressly excludes from the meaning of “official
detention” those individuals who are on parole supervision. Appellant
asserts Mr. Marrero testified he had no independent recollection of Appellant
or the status of his parole at the time of the incident. Appellant concludes
he is entitled to a new trial or to have his conviction reversed. We disagree.
Preliminarily, an argument that the fact-finder should have discredited
a witness’ testimony goes to the weight of the evidence, not the sufficiency
of the evidence. Commonwealth v. W.H.M., 932 A.2d 155, 159-60
(Pa.Super. 2007). See also Commonwealth v. Lewis, 45 A.3d 405, 409
(Pa.Super. 2012) (reiterating that sufficiency of evidence review does not
include assessment of credibility of witness’ testimony; if challenge requires
court to review credibility of witness’ testimony, claim is actually weight of
evidence challenge). “A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for a new trial: (1)
orally, on the record, at any time before sentencing; (2) by written motion
at any time before sentencing; or (3) in a post-sentence motion.”
Pa.R.Crim.P. 607(A). A weight claim must be presented to the trial court
while it exercises jurisdiction over a matter because “appellate review of a
weight claim is a review of the exercise of discretion, not the underlying
question of whether the verdict was against the weight of the evidence.”
Commonwealth v. Burkett, 830 A.2d 1034, 1037 (Pa.Super. 2003).
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Failure to raise a weight of the evidence claim in the trial court will result in
waiver of the issue on appeal, regardless of whether the appellant raises the
issue on appeal or the trial court addresses the issue in its Rule 1925(a)
opinion. Commonwealth v. Sherwood, 603 Pa. 92, 110, 982 A.2d 483,
494 (2009), cert. denied, 559 U.S. 1111, 130 S.Ct. 2415, 176 L.Ed.2d 932
(2010).
Additionally, issues not raised in a Rule 1925 concise statement of
errors are deemed waived. Commonwealth v. Castillo, 585 Pa. 395, 403,
888 A.2d 775, 780 (2005) (quoting Commonwealth v. Lord, 553 Pa. 415,
420, 719 A.2d 306, 309 (1998)). “Rule 1925(b) waivers may be raised by
the appellate court sua sponte.” Commonwealth v. Hill, 609 Pa. 410, 427,
16 A.3d 484, 494 (2011).
When examining a challenge to the sufficiency of evidence:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually
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received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.
Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).
Section 5121 of the Crimes Code defines escape, in pertinent part, as
§ 5121. Escape
(a) Escape.—A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.
* * *
(e) Definition.—As used in this section the phrase “official detention” means arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but the phrase does not include supervision of probation or parole, or constraint incidental to release on bail.
18 Pa.C.S.A. § 5121(a), (e). “Official detention” under Section 5121
includes “any…detention for law enforcement purposes” where “the police
have restrained the liberty of a person by show of authority or physical
force.” Commonwealth v. Santana, 959 A.2d 450, 452 (Pa.Super. 2008),
appeal denied, 605 Pa. 683, 989 A.2d 916 (2010) (quoting Commonwealth
v. Stewart, 648 A.2d 797, 798 (Pa.Super. 1994)). An individual is in
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“official detention” if, under the totality of the circumstances, a reasonable
person would not believe he is free to leave. Santana, supra at 452.
Although Section 5121 exempts general parole supervision from the
definition of “official detention,” our Supreme Court has construed “official
detention” broadly to mean the restraint of a detainee’s “liberty to come and
go as [the detainee] pleases,” regardless of the facility in which the detainee
was confined. Commonwealth v. Wegley, 574 Pa. 190, 197, 829 A.2d
1148, 1152 (2003). This Court has held that an individual detained as a
parole violator is under “official detention”:
Once a parolee is arrested and detained for failing to report, and acknowledges he is essentially in prerelease status, he is in official detention for purposes of [S]ection 5121, just as any other person placed in custody is. As such, he can hold no reasonable expectation that he retains the liberties and freedoms customary to a person operating under “supervision of parole.”
Commonwealth v. Maldonado, 966 A.2d 1144, 1147 (Pa.Super. 2009),
appeal denied, 605 Pa. 672, 989 A.2d 8 (2010) (determining parole violators
detained in official housing facility from which they may not leave without
permission pending parole violation adjudication are under “official
detention”). See also Commonwealth v. Williams, 153 A.3d 372, 379
(Pa.Super. 2016) (affirming judgment of sentence for escape conviction,
where parole violator fled from his supervisor after supervisor escorted
parolee from parole violation center to hospital in ambulance).
Instantly, as of December 15, 2014, Appellant was a parole violator
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detained in KPVC and resided in the parole violator section of KPVC.
Therefore, Appellant was under “official detention” for purposes of the
escape statute. See Wegley, supra; Maldonado, supra. On December
15, 2014, Mr. Marrero, a KPVC resident supervisor, escorted Appellant to the
hospital in an ambulance. Upon arriving at the hospital, Appellant fled.
During Appellant’s flight, Mr. Marrero told Appellant he could not leave and
commanded him to return. Appellant, however, continued to flee and failed
to return to KPVC. Based on the foregoing, the Commonwealth presented
sufficient evidence to allow the court to find Appellant guilty of escape. See
Hanlsey, supra; Williams, supra. To the extent part of Appellant’s
argument actually questions the credit the court gave to Mr. Marrero’s
testimony, Appellant’s challenge is to the weight of the evidence, not the
sufficiency of the evidence. See W.H.M., supra; Wilson, supra. The
record does not indicate Appellant raised this weight claim orally prior to
sentencing, by written motion prior to sentencing, or in a timely filed post-
sentence motion. See Pa.R.Crim.P. 607(A). Further, Appellant failed to
include in his Rule 1925(b) statement a general challenge to the weight of
the evidence and a specific challenge to the credibility of Mr. Marrero’s trial
testimony. See Castillo, supra. Thus, any challenge on appeal to the
weight of the evidence is waived. See Sherwood, supra; Castillo, supra.
Accordingly, Appellant’s first issue merits no relief.
Next, Appellant complains the admission at trial of the “Offender
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Placement Checklist” from the Pennsylvania Board of Probation and Parole
violated his constitutional right to confront witnesses against him. Appellant
submits the document was testimonial hearsay, based on its purpose, and
admitted at trial as substantive evidence. Appellant maintains the document
was prepared to prove a fact that could be used in criminal prosecution.
Appellant insists admission of the document was error because the person
who prepared the document did not testify at trial; instead, the custodian of
records was permitted to interpret the notations on the checklist indicating
that Appellant was a parole violator. Appellant argues the custodian of
records served as a constitutionally impermissible surrogate to testify about
Appellant’s parole violator and custody status. Appellant concludes he is
entitled to a new trial or to have his conviction reversed on this ground. We
disagree.
The standard of review for the admission of evidence is:
Admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. Admissibility depends on relevance and probative value. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact.
Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown
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by the evidence or the record, discretion is abused.
Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa.Super. 2006) (en
banc), appeal denied, 591 Pa. 711, 919 A.2d 955 (2007) (internal citations
omitted).
Pennsylvania Rule of Evidence 801 defines hearsay as follows:
Rule 801. Definitions That Apply to this Article
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
Pa.R.E. 801.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Abbe F.
Fletman, we conclude Appellant’s second issue merits no relief. The trial
court opinion comprehensively discusses and properly disposes of Appellant’s
second issue. (See Trial Court Opinion, filed September 27, 2016, at 9-12)
(finding: checklist met business record exception to hearsay rule; Jason
McClean, Department of Corrections, testified he maintains records for
facilities which house parole violators; Mr. McClean specifically stated he is
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custodian of records, including checklists, which are created for
administrative purposes at or near time of recorded incidents, such as
inmate transfers from facility to facility, violations, dates of arrival,
programs, and medical and legal status; Mr. McClean had sufficient
knowledge about how checklists are made and kept, so he could properly
authenticate Appellant’s checklist as business record; whether business
record is subject to Confrontation Clause depends on why record was
originally created; Mr. McClean testified that checklist is generated to ensure
parolee’s proper placement and treatment needs; Appellant’s checklist was
not prepared to establish any fact relevant to criminal prosecution; rather,
reason for checklist was to serve ongoing administrative purpose; as
qualified business record created and maintained for neutral purpose,
content of checklist was not testimonial evidence; admission of checklist did
not violate Appellant’s right to confront witnesses). The record supports the
trial court’s rationale. Therefore, as to Appellant’s second issue, we affirm
on the basis of the trial court opinion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/31/2017
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IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CRIMINAL
COMMONWEAL TH OF PENNSYLVANIA CP-5l-CR-0001272-2015
vs. CP-51-CR-0001272-2015 Comm. v. Hynson, Jack , Opinion I P'!J.'l- EDA ?.d~ FILE[ SEP 2 7 2016 JACK HYNSON 7504374901 I 1111111111111111 II I IIIII ; I Criminal Appeals FirstJudicia\Distric OPINION Following a bench trial, defendant Jack Hynson was found guilty of escape. Mr. Hynson
filed a timely appeal in which he argues that the evidence at trial was insufficient as a matter of
law to support the escape conviction. Mr. Hynson further contends that the Court abused its
discretion by allowing cross-examination beyond the scope of his testimony on direct
examination, re-opening the case after the Commonwealth had rested, and admitting hearsay at
trial. Finally, Mr. Hynson argues that the Court violated his Sixth Amendment right to confront
witnesses testifying against rum. For the reasons explained below, the appellate court should
affirm the guilty verdict in this matter.
On March 23, 2007, defendant Jack Hynson pled guilty to aggravated assault and
possessing instruments of crime and, on June 14, 2007, was sentenced to 7 Yi to 15 years of
incarceration on the aggravated assault charge and 2 Yi to 5 years of incarceration on the PIC
charge, to run concurrently. Mr. Hynson was paroled on May 27, 2014, and was subsequently
detained as a parole violator in Kintock Parole Violator Center at 201 E. Erie Avenue,
Philadelphia, PA. Ex. C-1 A.
On December 15, 2014, at approximately 1 :10 p.rn., Mr. Hynson was escorted to
Episcopal Hospital ("Episcopal") on an approved emergency medical pass. Notes of Testimony (''N.T.") 11/24/15 at 53:19-25. Upon arrival, a paramedic opened the ambulance door and Mr.
Hynson ran from the ambulance and Michael Marrero, the Kintock resident supervisor who had
accompanied him. Id. at 54:8-15. Mr. Marrero instructed Mr. Hynson to stop several times, but
he failed to comply. Id. Mr. Marrero never gave the defendant permission to leave his custody.
Id. at 55:8-10.
The Court colloquied Mr. Hyson on whether he wished to testify at trial. Id at 72:25-
74:7. After stating that he had decided to testify, on direct examination Mr. Hynson testified
solely about a document containing the conditions governing his parole and re-parole. Id. at
74:18-21. The Commonwealth then cross examined Mr. Hynson on the events that took place on
December 15, 2014, the day of his escape. Id. at 83:4-93:20. Mr. Hynson testified that on
December 15, 2014, he was transported to Episcopal in an ambulance with Mr. Marrero
escorting him. Id at 84: 11-22. Mr. Hynson was escorted to the hospital for chest pains that he
had been experiencing that day and the day before. Id at 83:5-10. Upon arriving at Episcopal,
Mr. Hynson informed Mr. Marrero that he wanted to go to Temple Hospital, but Mr. Marrero
refused. Id. at 86:3-10. Mr. Hynson testified that Temple Hospital had his records since he had
been there the day before, also because of his chest pains. Id. at 86:3-8 .. He further testified that
the only hospitals that had records about this condition were Temple Hospital and Aria Hospital.
Id. at 94:24-95: 1-4. Mr. Hyson proceeded to walk from Episcopal to Temple Hospital after Mr.
Marrero told him he was to be treated at Episcopal. Id. at 86:3-4, 87:2-3. Mr. Hyson testified
that, after walking to Temple Hospital, he called Kintock and was informed that he was in escape
status and a warrant was going to be issued for his arrest. Id at 89:25-90: 1-2. Mr. Hyson never
attempted to return to Kintock. Jd. at 92:15-25. Despite knowing a warrant for his arrest was
2 going to be issued, Mr. Hynson never turned himself into the police. Id at 93:8-17. Mr. Hynson
was arrested ao December 23, 2014. Id. at 64:20-25.
Discussion
1. Standard of Review
Mr. Hynson asserts that "the Commonwealth presented insufficient evidence to prove
beyond a reasonable doubt that (1) Hyson unlawfully removed himself from official detention
and/or failed to return to official·detention following temporary leave granted for a specific
purpose, and (2) that Hyson was being held in official detention at the time of his alleged
escape." Appellant's Statement of Matters Complained of Appeal ("Appellant's Statement"), 1 4(a)-(b) (August 4, 2016).
In reviewing the sufficiency of the evidence, an appellate court must determine whether
the evidence at trial was sufficient to establish all elements of the crime beyond a reasonable
doubt. Com. v. Burton, 2 A.3d 598, 601 (Pa. Super. 2010). In doing so, the appellate court views
all the evidence and reasonable inferences from the evidence in the light most favorable to the
verdict winner, the Commonwealth. Id. at 608. A conviction may be sustained wholly on
circumstantial evidence, andthe trier of fact- while passing on the credibility of the witnesses
and the weight of the evidence - is free to believe all, part, or none of the evidence. Id. at 601.
The evidence with all inferences in favor of the Commonwealth supports a guilty verdict
for escape beyond a reasonable doubt.
2. The Evidence is Sufficient to Support the Escape Conviction
A person commits the offense of escape if he (1) unlawfully removes himself (2) from
official detention or fails to return to official detention following temporary leave granted for a
specific purpose or limited period. 18 Pa. Cons. Stat. §5121 (West 2014). The statute defines
3 official detention as "arrest, detention in any facility for custody of persons under charge or
conviction of crime or alleged or found to be delinquent, detention far extradition or deportation,
or any other detention for law enforcement purposes; but the phrase does not include supervision
of probation or parole, or constraint incidental to release on bail." Id
Commonwealth v, Maldonado, 966 A.2d 1144 (Pa. Super. 2009), controls this case.
Maldonado presented the issue whether the escape statute excludes from its reach parole
violators who have been arrested and placed in a facility pending their parole violation hearing.
Id at 1145. The Superior Court held that detainment in a facility that contracts with the
Pennsylvania Department of Corrections pending a parole violation hearing "constrains one's
freedom of movement to within the confines of a housing facility such that placement there
effects the kind of detention contemplated within the meaning of Section 5121." Id at 1 l 4 7. The
Court explained:
Critically. each Appellee had been removed from the normal course of supervision of parole and recommitted to a detention facility pending a hearing to determine whether sufficient evidence of parole violation supported his detainment. The commitment was therefore not a term or condition of his release-under supervision of parole; it was a suspension of such release, and a recommitment to official detention pending the outcome of his hearing. Breaking free from such detention is certainly among the mischief intended to be remedied by section 5121.
Id at 1148.
The Commonwealth offered through Mr. Marrero that Mr. Hynson was locked down in
Kintock's parole violator section. N.T. 10/22/15 at 39: 18-22. Mr. Hynson could not leave
Kintock custody without permission and an escort. N.T. 11/24/15 at 55:8-10. On December 15,
· -2014, Mr. Hynson had permission to leave Kintock to go to Episcopal with Mr. Marrero
escorting him. Id at 53:19-25. There is no dispute that Mr. Hynson removed himself from his
4 escort without permission. Mr. Marrero and Mr. Hynson both testified that once they arrived at
Episeepal, M-r. My.asea lef.t Mr Marrero and Rpj scope] after he was informed that he was not
allowed to leave. Id. at 54:11-15, 88:18-25, 89:1-4. This Court did not err as a matter oflaw
when it found sufficient evidence of an escape.
3. The Evidence is Sufficient to Disprove the Defense of Duress
Mr. Hynson asserts that the evidence was insufficient as matter of law to convict him of
escape because ''the Commonwealth presented insufficient evidence to disprove the defense of
duress beyond a reasonable doubt." Appellant's Statement, ,r 4(c). The Commonwealth,.
however, was not required to disprove duress. To the contrary, the defense carried the burden of
proof of duress and failed to establish the necessary requirements.
The defense must establish the following four requirements to successfully assert a duress
defense: (1) the escapee must be confronted with a specific threat of death or serious bodily
injury; (2) there must either be no time to complain to authorities, or a history of futile
complaints; (3) there must be no evidence of force by the escapee against prison personnel or
others in the escape; and ( 4) the escapee must return to official detention as soon as possible.
Com. v. Bros., 597 A.2d 1164, 1167 (Pa. Super. 1991).
"The requirements are in the conjunctive; unless all four requirements exist, the defense
of duress fails." Com. v. Kaminski, 502 A.2d 1281, 1285-86 (Pa. Super. 1985). Only after the
defense has met its burden of establishing the requirements for duress does the burden shift to the
Commonwealth.
Mr. Hynson failed to establish that he was confronted with a specific threat of death or
serious bodily injury or that he returned to official detention as soon as possible. Since Mr.
Hynson failed to establish the requirements necessary to sustain a defense of duress, the
5 prosecution did not have to disprove any of the elements of duress beyond a reasonable doubt
Kaminski, 502 A.2d at J 285 That Mr. Hynson was taken to Episcopal instead of his preferred hospital does not
constitute a specific threat of death or serious bodily injury. Mr. Hynson had complained of chest
pains and had appropriately been transported to a hospital where he could be treated by
healthcare professionals, Indeed, the time it took for the defendant to walk from Episcopal to
Temple Hospital could have been spent addressing his health concerns.
Mr. Hynson also failed to prove that he returned to official detention as soon as possible.
Mr. Hynson admitted that he made no attempt to return to K.intock after leaving its custody on
December 15, 2014. N.T. 11/24/15 at 92:20~25. He also admitted that he made no attempt to turn
himself into the police after being informed that he was in escape status and a warrant would be
issued for his arrest. Id at 93 :8-17. Mr. Hynson did not return to custody until he was arrested
on December 23, 2014, nine days after he had left Episcopal. Id at 64:22-25.
Since Mr. Hyson failed to establish the all the requirements of duress, this Court committed
no error in finding the evidence sufficient to determine him guilty of escape.
4, The Court Did Not Abuse Its Discretion in Allowing Mr. Hynson To be Cross-Examined Beyond the Scope of his Direct Examination, Reopening the Case, or Admitting Hearsay
Mr. Hynson asserts that the Court abused its discretion in allowing cross examination of
Mr. Hynson beyond the scope of his direct examination, re-opening the case, and admitting
hearsay. Appellant's Statement,, 4(d), (f)-(g).
When the discretion exercised by the trial court is challenged on appeal, it is not
sufficient to persuade the appellate court that it might have reached a different conclusion. Com.
v. Safka, 141 A.3d 1239, 1248-49 (Pa. 2016). "[ A ]n abuse of discretion is not merely an error of
6 judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as
shown by the evidence or the record, discretion is abused." Id.
a) The Court Did Not Abuse Its Discretion By Allowing Cross-Examination Beyond the Scope of Direct The Court did not abuse its discretion by allowing the Commonwealth to cross-examine
Mr. Hynson beyond the scope of his testimony on direction examination.
Cross-examination generally is limited to the subject matter of direct examination and
matters affecting the credibility of the witness. Pa.RE. 61 l(b). The trial court, however, has
discretion to permit inquiry into additional matters as if on direct examination. Id.
When a defendant chooses to take the stand, he does so at the risk of being subjected to
wide-ranging questioning. Com. v. Camm, 277 A.2d 325, 331 (Pa. 1971). In Camm, the
defendant took the stand solely for the purpose of attacking a confession he claimed to have been
coerced. Id. Before the defendant began testifying, his counsel stated his intention to call the
defendant on the voluntariness issue only, "without any waiver of his right against self-
incrimination." Id. After advising counsel that he would "rule on matters as they come up," the
trial court allowed the prosecution to extensively cross-examine the defendant beyond the issue
of voluntariness. Id at 330. The Pennsylvania Supreme Court held that the trial court had
committed no abuse of discretion in allowing this cross examination. The Court stated that "a
defendant cannot protect himself against wide-ranging cross-examination" simply by announcing
he is taking the stand for a limited purpose. Id. at 331. "On the contrary, he subjects himself to
good-faith cross-examination and the discretionary rulings of the trial judge as to permissible
scope of that cross-examination. In deciding to take the stand the defendant must weigh the risks
of doing so against the risks of not doing so." Id
7 The defense called Mr. Hynson as a witness and chose to subject him to cross
examination without any attempt ta claim the privilege against self-incrimination N.T. 11/24/15
at 74: 18-21. The Court then allowed the Commonwealth to cross examine the defendant about
the events that took place the day of his escape. Id. at 83:1-93:25. Under Camm, the Court
committed no abuse of discretion.
Moreover, even if the Court had committed an error, any such error would have been
harmless. Com. v. Story, 383 A.2d 155, 162 (Pa. 1978) (holding that when an error did not
prejudice the defendant, or that the prejudice was so minimal that, beyond a reasonable it did not
influence the trier of fact, the error is harmless). Mr. Hynson's testimony was not used to allow
the Commonwealth the meet its burden. The Commonwealth had already presented sufficient
evidence to establish the elements of escape from the resident supervisor, who was with Mr.
Hynson when he left his supervision, and the officer who arrested Mr. Hynson after his escape.
The Court would have reached the same ruling even if it had not allowed the defendant to be
cross-examined outside the scope of his direct examination. Therefore, for this independent
reason, the Court did not abuse its discretion by allowing the Commonwealth to cross-examine
the witness on the events surrounding his escape.
b) The Court Did Not Err By Allowing the Prosecution to Reopen Its Case
The Court did not abuse its discretion, or violate the appellant's due process rights under
the federal and state constitutions by allowing the Commonwealth to reopen the record after it
had rested. Under the law of this Commonwealth, a trial court has the discretion to reopen a case,
before the entry of final judgment, to prevent a failure or miscarriage of justice. Com. v. Tharp,
575 A.2d 557, 558-59 (Pa. 1990) (listing cases).
8 Once the Commonwealth had rested, the Court heard oral argument about the
admissibility of the defendant's "escape packet,. NI 1Q/2912015 The Court ruled that the
packet was inadmissible because a proper foundation had not been laid. Id at 42:24-25. The
defense then requested a verdict of not guilty on the basis that the Commonwealth had failed to
establish the necessary elements of escape. Id. at 44: 1-3. The Commonwealth countered with a
motion to reopen its case to present additional evidence. Id. at 44:4- 7. The Court allowed the
Commonwealth to reopen its case to provide additional evidence of Mr. Hynson's escape. This
exercise of discretion is consistent with the holdings of many appellate courts. Safka, 141 A.3d
1239 (trial court did not abuse its discretion by sua sponte re-opening a case after the close of
evidence to address admissibility concerns); Tharp, 575 A.2d 557 (no abuse of discretion where
court allowed Commonwealth to re-open case to provide additional evidence after it had rested
and the defense had moved for demurrer); Com. v. Mathis, 463 A.2d 1167 (Pa. Super. 1983)
(same).
The Court did not abuse its discretion by allowing the Commonwealth to reopen its case
to provide additional evidence.
c) The Court Did Not Abuse Its Discretion By Admitting Exhibit C-IC Into Evidence
This Court did not abuse its discretion by admitting into evidence Exhibit C-1 C, Jack
Hynson's parole board placement checklist, because a foundation was properly laid for its
admission as a business record.
Records of a regularly conducted activity are excluded from the hearsay rule if the
proponent of the evidence establishes:
(A) the record was made at or near the time of the act, event or condition sought to be proved by -- or from information transmitted by -- someone with knowledge; (B) the record
9 was kept in the course of a regularly conducted activity of a business, which includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for proflt; (C) mating the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness; and (E) neither the source of information nor other circumstances indicate a lack of trustworthiness.
Pa.R.E. 803(6).
It is not essential for the admission of evidence under Rule 803(6) of the Pennsylvania
Rules of Evidence to produce either the person who made the entries in question or the custodian
of the record at the time the entries were made. In re Indyk's Estate, 413 A.2d 371, 374 (Pa.
1979). As long as the authenticating witness can provide sufficient information relating to the
preparation and maintenance of the records to justify a presumption of trustworthiness for the
business records, a sufficient basis is provided to offset the hearsay character of the evidence. Id.
at 373.
The Commonwealth presented sufficient evidence for the admission of Exhibit C- 1 C,
Jack Hynson's parole board placement checklist as a business record under Rule 803(6). The
Commonwealth called Jason McClean, who works for the Department of Corrections, Bureau of
Community Corrections. N.T. 10/22/15 at 9:24-25. He is responsible for maintaining the records
for contract facilities in Philadelphia that house parole violators and parolees. Id. at 10: 1-7. Mr.
McClean maintains records that show inmate transfers from facility to facility, any violations,
dates of arrival, programs, and medical and legal status. Id. at 10:16-20. These records are
created by someone with knowledge of the records' content at or near the time they were created.
Id. at 11: 19-23. Mr. McClean had sufficient knowledge about how these records are created and
10 kept to properly authenticate them as a business record. See In re Indyk's Estate, 413 A.2d 371,
374 (Pa 1979) Admitting the record did not constitute reversible error.
5. The Court Did Not Violate Mr. Hynson's Sixth Amendment Right To Confront Witnesses
Finally, Mr. Hynson asserts that his Sixth Amendment right to confront witnesses
testifying against him was violated when the Court allowed the admission of C-1 C, the parole
board placement checklist. Appellant's Statement, 14(e). The Confrontation Clause, however,
was not violated because no testimony was offered against him.
The Sixth Amendment's Confrontation Clause provides: "In all criminal prosecutions, the
accused shall enjoy the right ... to be confronted with the witnesses against him." U.S.C.A.
Const.Amend. 6. The right to confront witnesses applies to state as well as federal prosecutions.
Crawford v. Washington, 541 U.S. 36, 42 (2004). The Confrontation Clause applies only to
testimonial hearsay. Davis v. Washington, 547 U.S. 813, 821 (2006).
Statements are non testimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency. Com. v. Williams, I 03 A.3d 354, 359 (Pa.
Super. 2014), allocatur denied, 116 A.3d 605 (Pa. 2015). They are testimonial when the
circumstances objectively indicate that there is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events potentially relevant to later
criminal prosecution. Id.
The Confrontation Clause does not apply to business records because they are not
deemed testimony. Crawford, 541 U.S. at 76. In Melendez-Diaz, the Supreme Court noted:
"Business and public records are generally admissible absent confrontation not because they
qualify under an exception to the hearsay rules, but because-having been created for the
11 administration of an entity's affairs and not for the purpose of establishing or proving some fact
at trial-they are not testimonial." Melendez-Diaz v. Massachusetts, 557 U.S. 305. 324 (2009).
Whether business records are subject to the Confrontation Clause depends on why the record was
originally created, i.e. "whether the evidence was made for the 'purpose of establishing or
proving some fact' relevant to criminal prosecution." Com. v. Dyarman, 73 A.3d 565, 571 (Pa.
2013).
Mr. Hynson contends that Commonwealth Exhibit C-lC, Jack Hynson's parole board
placement checklist, contained testimonial evidence in the form of a notation that says
"absconder." N.T. 10/22/15 at 36:9-17. Specifically, the defense objected to the fact that the
checklist placed Mr. Hynson in parole violator status for absconding. Id at 36:9-25. The
checklist, however, was not made for the purpose of establishing a fact relevant to criminal
prosecution but rather for administrative purposes. Id. at 10:16-20. Mr. McClean testified that
these checklists are created to ensure that parolees are properly placed and to identify if the
parolee is in need of treatment. Id. at 30:9-14. Since testimonial evidence was not offered against
Mr, Hynson, his Sixth Amendment right to confront witnesses was not violated.
CONCLUSION
For the foregoing reasons, the appellate court should affirm the guilty verdict in this
matter.
BY THE COURT:
ABBE F. FLETMAN, JUDGE Dated: September 27, 2016