J-A10001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
CHRISTOPHER JOE YOUNGER
Appellant No. 541 WDA 2015
Appeal from the Judgment of Sentence November 14, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0011526-2010
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.
JUDGMENT ORDER BY PANELLA, J. FILED AUGUST 12, 2016
Appellant, Christopher Joe Younger, appeals from the judgment of
sentence of the Court of Common Pleas of Allegheny County. A jury
convicted him of possession of a controlled substance (heroin) and criminal
conspiracy.1 Upon review, we adopt the trial court’s Rule 1925(a) opinions
and affirm the judgment of sentence.
Given the parties’ intimate familiarity with the details of this case and
the trial court’s thorough recounting of the facts and procedural history, we
need not further elaborate upon the background of this case. See Trial Court
Opinion, 1/31/14, at 2, 4-6.
____________________________________________
1 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. § 903(a), respectively. J-A10001-16
Following the trial court's disposition of his post-sentence motion,
Appellant filed a concise statement of errors complained of on appeal, raising
a plethora of issues. The trial court issued a comprehensive opinion in
support of its ruling under Pennsylvania Rule of Appellate Procedure
1925(a). See Trial Court Opinion, 1/31/14. On appeal, this Court vacated
Appellant’s judgment of sentence pursuant to the United States Supreme
Court’s decision in Alleyne v. United States, --- U.S. ---, 133 S.Ct. 2151
(2013), and remanded for resentencing. See Commonwealth v. Younger,
1601 WDA 2012 (Pa. Super., filed August 20, 2014) (unpublished
memorandum). The trial court resentenced Appellant on November 14,
2014. Appellant again filed post-sentence motions, which the trial court
denied.
Subsequent thereto, Appellant filed a second concise statement, which
contained repeated allegations of error previously addressed in the trial
court’s January 31, 2014 opinion. On September 24, 2015, the trial court
issued a second Rule 1925(a) opinion. In disposing of Appellant’s issues, the
trial court adopted its prior opinion in order to address Appellant’s
overlapping claims.
On appeal, Appellant raises fifteen issues for our review, a staggering
number.2 See Appellant’s Brief at 5-7.
2 “While criminal defendants often believe that the best way to pursue their appeals is by raising the greatest number of issues, actually, the opposite is (Footnote Continued Next Page)
-2- J-A10001-16
After careful review of the parties’ briefs, the record on appeal, and
the relevant case law, we conclude that the trial court’s opinions, authored
by the Honorable Jill E. Rangos, thoroughly and properly dispose of
Appellant’s issues on appeal. See Trial Court Opinion, 1/31/14, at 7-15; Trial
Court Opinion, 9/24/15, at 4-8. We, therefore, affirm the judgment of
sentence based on those decisions.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/12/2016 _______________________ (Footnote Continued)
true: selecting the few most important issues succinctly stated presents the greatest likelihood of success.” Commonwealth v. Ellis, 626 A.2d 1137, 1140 (Pa. 1993). “Appellate advocacy is measured by effectiveness, not loquaciousness.” Id., at 1140-1141 (citation omitted). This is because “[l]egal contentions, like the currency, depreciate through over issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one[.]” Commonwealth v. Robinson, 864 A.2d 460, 480 n.28 (Pa. 2004) (quoting Robert H. Jackson, J., “Advocacy Before the United States Supreme Court,” 25 Temple L.Q. 115, 119 (1951)). See also, Ruggero J. Aldisert, J. “Winning on Appeal: Better Briefs and Oral Argument,” 129 (2d ed. 2003) (“When I read an appellant’s brief that contains more than six points, a presumption arises that there is no merit to any of them.”).
-3- J-A10001-16
-4- Circulated 07/11/2016 02:28 PM
IN THE COURT OF COMMON J_>LEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION
v. CC No. 201011526
CHRISTOPHER YOUNGER
Appeal of: OPINION
CHRISTOPHER YOUNGER, Honorable Jill E. Rangos Appellant Room 533 436 Grant Street Pittsburgh, PA 15219
Copies to:
Lucas Kelleher 104 Keystone Street Altoona, PA 16602
Michael Streily Office of the District Attorney 401 County Courthouse 436 Grant St. Pittsburgh, PA 15219 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
Appeal of:
CHRISTOPHER YOUNGER,
Appellant
OPINION
RANGOS,J. January 31, 2014
On April 2, 2012, Appellant, Christopher Younger, was convicted by a jury of his peers
of one count of Possession with Intent to Deliver a Controlled Substance 1 (Heroin) and one count
of Criminal Conspiracy'. Appellant was sentenced to the mandatory three to six years of
incarceration on the PWID count with three years consecutive probation and a concurrent three
years probation on the Conspiracy count. Post Sentence Motions were denied on September 17,
2012 and Appellant filed a Notice of Appeal on October 15, 2012. Appellant filed a Statement
of Errors Complained of on Appeal on November 7, 2012.
While this Court was writing its Opinion, counsel for Appellant filed a Motion to
Withdraw. This Court granted the motion and permitted subsequent counsel, the Office of the
Public Defender, to file a supplemental Concise Statement nunc pro tune. Before filing a
1 35 P.S. § 780-113(a) (30). 2 18 P.S. § 903(a).
2 Supplemental Concise Statement, the Office of the Public Defender withdrew on September 17,
2013 and current counsel entered his appearance. Appellant, through his current counsel, filed a
Supplemental Concise Statement of Matters Complained of on Appeal on November 25, 2013.
MATTERS COMPLAINED OF ON APPEAL
Appellant, in his initial Concise Statement raised the following seven issues on appeal:
Did the sentencing court err by concluding that Defendant is ineligible for the RRRI3 program?
Was the evidence insufficient to support the verdict?
Was the jury verdict against the weight of the evidence?
Did the jury render an inconsistent verdict by acquitting Defendant of the Simple Possession count and convicting on the Possession with Intent to Deliver count?
Was a juror unlawfully or otherwise coerced into returning a guilty verdict?
W[ ere J there significant and reversible issues in the deliberation process?
Was the jury verdict not unanimous?
Concise Statement of Errors to be Raised on Appeal, p. 1-2. (November 7, 2012)
Current counsel filed a Supplemental Concise Statement, which· incorporated by
reference the original Concise Statement, restated some issues previously raised in the
original Concise Statement and raised new allegations of error. Specifically, Appellant
alleges this Court erred in not sentencing him to RRRI following the Commonwealth's
waiver of eligibility requirements and abused its discretion in determining that he is not
an eligible candidate for boot camp. Appellant further alleges that the Court erred in
determining that Appellant did not have an expectation of privacy in the vehicle, in
3 Recidivism Risk Reduction Incentive.
3 permitting a Commonwealth witness to testify as an expert, in admitting into evidence the
bail background information form, as it was both irrelevant and prejudicial, and in
admitting irrelevant and prejudicial hearsay testimony. Next, Appellant "avers that the
Trial Court erred and/or abused its discretion in overruling objections and requests for
mistrials during the Defendant's jury trial." Appellant also alleges the Court erred in
denying pretrial motions in limine and that the Affidavit of Probable Cause was invalid as
once false and/or inaccurate statements included therein are removed from consideration,
the remaining facts do not establish probable cause. Additionally, Appellant alleges
prosecutorial misconduct in failing to provide discovery and in presenting evidence
which contradicted information in the search warrant. Lastly, Appellant alleges that this
Court erred in denying a motion for extraordinary relief based on lack of a unanimous
verdict. Supplemental Concise Statement of Errors to be Raised on Appeal, p. 4-8.
(November 25, 2013)
SUMMARY OF THE CASE
Corporal Mike Colberg of the Monroeville Police Department, a police officer with
twenty years experience, testified that he was on patrol duty with his canine partner on May 5,
2010. (Transcript of Jury Trial of March 28, 2012 to April 2, 2012, hereinafter TI 69) He
responded to a call at A & L car dealership ("Dealership") where a Chevy Impala had been
abandoned. (TI 70) Appellant, Christopher Younger, reportedly had left the car in that spot,
blocking in his own car, a 2004 Land Rover, after a dispute between Appellant and the
Dealership over damages to a loaner car. (TI 70, 75) When Corporal Colberg approached the
Impala, he noticed a strong odor of marijuana from several feet away. (TT 76) Corporal
4 Colberg testified that he intended to impound the vehicle and obtain a search warrant. (IT 80)
Before the tow truck arrived, the manager of the Dealership observed Appellant in an adjacent
parking lot, approximately forty yards uphill. (IT 80-81)
When Corporal Colberg arrived in the adjacent lot, he observed Appellant running
toward a Toyota Avalon and reaching for the driver's side door handle. (IT 82) Corporal
Colberg also observed a codefendant in this case, Nakia Miller,4 standing on the passenger side
of the vehicle. Id. Appellant told the Corporal that he was running to get something out of his
car. (IT 84) Based on a prior report from the Dealership earlier that day, specifically that
Appellant was seen carrying a gun on his person during a verbal altercation (IT 70), the
Corporal handcuffed Appellant for officer safety. (TI 84) His canine partner, a certified drug
sniffing dog, then alerted three times on the Avalon: on the driver's side door along the seam, at
the trunk seam and on the passenger side door seam. (TI 89)
While Appellant and Miller were talking to the Corporal, Detective John Pawlowski, who
had responded as backup, observed on the front passenger floor board inside the Avalon a gray
wool tube sock that was stuffed with something. (IT 120) After obtaining a search warrant,
police searched both the Impala and the Avalon. (IT2 7) From inside the sock found on the
Avalon front passenger floor, 1003 individual stamped bags of heroin were recovered. (TI2 21)
Officers also recovered six cell phones from inside the Avalon. (IT2 6) In addition, Officer
James Hredzak testified that he found in the Avalon a plastic bottle that looked like a Coca-Cola
bottle, but actually came apart and contained a secret compartment which, in his experience, is
commonly used to conceal narcotics. (IT2 9) Of significance, Officer Hredzak also recovered
from the center console a wallet containing Appellant's social security card and credit cards,
(TI2 9-10) and several other indicia of Appellant's presence in the vehicle, including his 4 Miller's case was severed prior to trial.
5 passport and several prescription medication bottles in the back seat. (IT2 13) The lease
agreement for the Avalon was also recovered from the vehicle and listed codefendant Miller as
the Lessee. (IT2 10) Miller and Appellant both initially indicated that the Avalon was owned
by a female friend of theirs. (IT 118)
Officer Hredzak testified that while Appellant was detained at the scene, he
spontaneously offered various explanations for his conduct.' (IT 122) Initially, he indicated he
was heading to his car (the Avalon) to retrieve something when he was detained. Id. Later,
Appellant said that he came with codefendant Miller and a third individual named Chris in the
Avalon to retrieve his Impala.6 Id. After the police dog alerted on the Avalon, Appellant stated
that whatever was in the car did not belong to him. (IT 123) Specifically, Appellant stated his
incredulity that Miller would bring illegal items into the car with him when the only thing
Appellant had wanted was a ride. (IT 125) Next, Appellant asked to be taken out of earshot of
Miller. Id. Once separated, Appellant offered to give Officer Hredzak a drug dealer in
Monroeville in exchange for his release. (IT 123-124) Based on the numerous inconsistent
statements, the Officer decided not to ask Appellant to reduce any of his statements to writing.
(IT 124)
Detective Mark Goob testified by stipulation of counsel as an expert in narcotics
transactions. (IT2 101) After considering the sheer number of stamp bags recovered, the lack
of paraphernalia recovered from either the Avalon or Appellant, the minimal income of
Appellant compared to his lifestyle, and his use of a vehicle not registered in his name, Det.
Goob concluded that the drugs were possessed with the intent to deliver and not for personal use.
(IT2103)
-~ Officer Hredzak testified that he asked Appellant several times to stop talking. (TI 123) 6 Appellant offered other variations of his story which were summarized by Officer Hredzak at the suppression hearing and referenced infra at p. 8.
6 DISCUSSION
Appellant's Concise.' Statements are nothing short of a muddled mess. Appellant's i scatter-shot approach and failure to develop a number of issues with sufficient specificity and
citation to the record make it difficult for this Court to properly address Appellant's allegations
of error. In an attempt to respond td the numerous allegations raised, this Court has rearranged
and combined Appellant's issues inio the following areas: pretrial, trial, verdict, and sentence.
Pretrial
Appellant claims that this Court erred in denying Appellant's Motion to Suppress.
Appellant asserts that this Court erred in determining that he did not have an expectation of
privacy regarding the vehicle at issue. The standard of review in determining whether the trial
court appropriately denied the suppression motion is whether the record supports the factual
findings and whether the legal conclusions drawn from these facts are correct. Commonwealth
v. Stevenson, 894 A.2d 759, 769 (Pa.Super. 2006).
When challenged by the Commonwealth, the defendant has the burden of proving by a
preponderance of evidence that he has a reasonable expectation of privacy in the vehicle in
question.8 Commonwealth v. Sell, 470 A.2d 457, 466 (Pa. 1983). Appellant failed to establish a
reasonable expectation of privacy. According to the testimony at the suppression hearing, a
dispute between Appellant and the rpealership arose out of damage to a loaner car Appellant had
been provided while the Dealership performed repairs to Appellant's 2004 Land Rover. The
police became involved when Appellant returned to the Dealership in an Impala which he then
7 This Court notes that the Supplemental Concise Statement is anything but concise, coming in at a whopping 69 pages, which fails to comply with Pa. R.A. P. 1925. This Court further notes that despite its length, the Supplemental Concise Statement fails to state with specificity where in the record each of these alleged errors were committed. 8 Appellant fails to state which vehicle he believes was "at issue" at the suppression hearing, the Impala left at the Dealership or the Avalon at the adjacent lot. Based on the testimony at the suppression hearing, this Court believes Appellant intended to refer to the Avalon.
7 abandoned. After being observed running toward the driver's door of an Avalon in an adjoining
parking lot above the Dealership, Appellant was approached by police and detained for officer
safety. He spontaneously made numerous contradictory statements to the police during that
encounter. Appellant first told officers on the scene that he arrived in the Avalon, and then said
that he did not, that someone had dropped him off. (Transcript of Suppression Hearing of July
15, 2011, hereinafter ST 15) Appellant then stated that the Avalon belonged to a female friend,
and if the police wanted to search the vehicle, they would have to ask her. Id. According to
Officer Hredzak, "As the story evolved, [Appellant stated that the car] was a family business
vehicle, and then later told [the Officer] that Mr. Miller owned the vehicle.'' (ST 16) After the
search warrant was obtained and executed and the drugs were recovered, Appellant blamed
Miller for giving him a ride in a car that contained drugs. (ST 21) Appellant specifically denied
owning the vehicle. (ST 22) Both Appellant and Miller ultimately told Officer Hredzak at the
scene that the vehicle belonged to Miller. (ST 60) The car was registered to Miller. (ST 51)
When the two suspects were detained, the keys were in the ignition and the car was running. Id.
Police recovered Appellant's wallet, a passport for a Christina Younger, and other items of
indicia inside the vehicle. (ST 83)
This case is factually similar to Commonwealth v. Millner, 888 A.2d 680 (Pa. 2005). In
determining that Appellee Millner did not have a reasonable expectation of privacy, the court
stated:
[ A ]ppellee never argued or testified that he had such an expectation of privacy; instead, he stated that the vehicle was not his. * * * Moreover, the Commonwealth's uncontradicted evidence demonstrated that the vehicle was registered to someone other than appellee,
Id. at 686. At the suppression hearing, Appellant neither testified nor argued that the Avalon
was his. In fact, the uncontradicted testimony was that the Avalon was owned by Miller.
8 Appellant made numerous statements at the scene attempting to distance himself from the
vehicle. Appellant's contention that he had a reasonable expectation of privacy in the Avalon
stands in direct contradiction to his own statements to the police, as well as the entire body of
evidence presented at the suppression hearing. Appellant told police that Miller had simply
given him a ride to the Dealership in the Avalon to retrieve the Impala, the Avalon was
registered to Miller, and Appellant's car, the 2004 Range Rover, was the reason for the entire
encounter. As Appellant failed to establish a reasonable expectation of privacy in the Avalon at
the suppression hearing, this Court correctly denied the suppression motion.
Next, Appellant alleges that this Court abused its discretion by denying a Motion in
Limine to exclude alleged irrelevant hearsay testimony regarding a report that Appellant had
been observed in possession of a firearm on the day in question. Appellant further alleges that
the Court erred in overruling objections and denying a request for a mistrial on this issue. This
Court permitted Corporal Colberg to testify that the Dealership shop manager, Alex
Defrancesco, during a verbal dispute over the damaged loaner car earlier that afternoon,
observed Appellant with a handgun in his waistband and had previously observed Appellant on
numerous occasions carrying a firearm in this manner. The testimony was not offered to prove
the truth of the matter asserted, but rather to explain why the police took the precautions they
did in dealing with Appellant at the scene. The probative value of this testimony is significant
in that it explains the actions of the officers, in particular their decision to place Appellant in
handcuffs upon encountering him. Appellant asserts prejudicial effect in that Appellant would
needlessly be associated with a firearm, prejudicing the jury into thinking he is more likely to be
a drug dealer. As this Court noted, many people legally carry firearms in Pennsylvania, and
Appellant was not in possession of a firearm when arrested nor was he charged with a firearms
9 violation. As such, this Court deemed the prejudicial effect to be minimal. Out of an
abundance of caution, this Court gave a cautionary instruction (TI 74), reminding the jury that
Appellant was not charged with violating any firearms statute, and instructing that the testimony
elicited was merely for the purpose of laying the foundation for the actions of the officers
throughout the encounter. As this testimony was relevant and not admitted for the truth of the
matter asserted, this Court properly admitted this evidence and Appellant's assertions of error to
the contrary are without merit. Commonwealth v. Sneed, 526 A.2d 749, 754 (Pa. 1987).
Appellant alleges that the affidavit for a search warrant was based on false or inaccurate
information, which, if excluded, would leave the affidavit devoid of probable cause. Appellant,
however, despite the voluminous Supplemental Concise Statement, fails to specifically allege
which statements in the Affidavit of Probable Cause were knowingly or intentionally false, or
made with reckless disregard for the truth. Therefore, this Court is unable to address this
alleged error and the issue is waived. Pa.R.A.P. 1925(b) (4) (ii), (vii). Likewise, any allegation
of prosecutorial misconduct on this issue is also waived.
Trial
Appellant alleges that this Court erred in admitting into evidence Appellant's bail
background information form, in that it had no relevance and was more prejudicial than
probative. The form, which Corporal Colberg testified is routinely completed by arrestees,
contains basic biographical information, family contact information and employment
information. (TI 26) Appellant wrote on the form that he was employed at Mornrna's Candies
with an income of $300.00 a week. (TI 27) This information is relevant in a Possession with
Intent case where intent is often proved by circumstantial evidence because it calls into question
10 Appellant's ability to own a number of cars given his stated income. Appellant's vague
assertion of prejudicial effect is more than overcome by the probative value to the
Commonwealth establishing the incongruity between Appellant's lifestyle and his stated
income. Furthermore, the jury was aware that Appellant was arrested and charged in this case
and would not likely be surprised or prejudiced to learn about the procedural step of completing
a bail form upon arrest.
Appellant alleges this Court erred in permitting Detective Mark Goob to testify as an
expert witness regarding the issue of Appellant's criminal intent. Del. Goob, qualified as an
expert in narcotics transactions by stipulation of counsel, opined that the incongruity of
Appellant's income and his lifestyle suggested that Appellant received additional income,
consistent with the sale of drugs. As this incongruity was a factor in the witness' conclusion
that the drugs were possessed with intent to deliver and not for personal use, it was appropriate
for this Court to permit such testimony. Appeaant's argument that his income was legally
derived from his partial ownership of or employment at the candy store, while an appropriate
subject for cross-examination, in no way precludes Del. Goob from stating his opinion that
under these circumstances, the heroin was possessed with the intent to deliver.
Similarly, Det. Goob's testimony that drug dealers often operate out of vehicles which
they do not own, as it was a factor in support of his opinion, was relevant and properly admitted
by this Court. As an expert, Det. Goob is permitted to express his opinion based on
hypothetical information. The jury then determines whether the Commonwealth has proven that
any particular element relied on by Det. Goob has been proven in this case. Commonwealth v.
Daniels, 390 A.2d 172 (Pa. 1978).
11 Appellant alleges prosecutorial misconduct by presenting testimony at trial
regarding Appellant's willingness to provide information on other drug transactions,
testimony which had not prior been provided to Appellant through discovery.9 The legal
principles relevant to a claim of prosecutorial misconduct are well established. Actions
or inactions by a prosecutor rise to the level of prosecutorial misconduct only where their
unavoidable effect is to prejudice the jury, forming in the jurors' minds a fixed bias and
hostility toward the defendant such that they could not weigh the evidence objectively
and render a fair verdict. Commonwealth v. Hutchinson, 25 A.3d 277, 307 (Pa. 2011).
Appellant essentially claims unfair surprise, that trial counsel had not been
provided information that Appellant had made a statement to police that he was willing to
set up another drug dealer. While the Commonwealth is required to provide all evidence
in its possession to Appellant, Appellant has failed to establish that the Commonwealth
had this statement in its possession. The Affidavit of Probable Cause does not include
this statement. Appellant's competent and experienced trial counsel cross-examined the
witness on this issue, attempting to call into question the credibility of the witness. This
statement was properly admitted, without objection, and subject to cross-examination.
As a result, neither the testimony nor the Commonwealth's reference to the statement in
closing argument, constitute prosecutorial misconduct.
Verdict
Appellant claims that the evidence was insufficient to support the verdict. The test for
reviewing a sufficiency of the evidence claim is well settled:
9 As with many of the issues raised, Appellant does not provide a citation to the record. In reviewing the transcripts, this Court has not found an objection by counsel preserving this issue for appeal. When an allegation is unsupported by citation to the record, this Court is prevented from assessing the issue and determining whether error occurred, and the issue should therefore be deemed waived. Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa.Super.2006).
12 [W]hether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. .. This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Hardcastle, 546 A.2d 1101, 1105 (Pa. 1988) (citations omitted).
Appellant alleges that the evidence was insufficient to establish that Appellant possessed
the heroin and that he possessed it with intent to deliver. Defendant was found guilty under the
· doctrine of constructive possession. "Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law enforcement." Commonwealth v. Davis, 280
A.2d 119, 121 (Pa. 1971).
Constructive possession may be found where an individual does not have actual
possession over the illegal item but has conscious dominion over it. Commonwealth v. Carroll,
507 A.2d 819 (Pa. 1986). In order to prove "conscious dominion," the Commonwealth must
present evidence to show that the defendant had both the power to control the contraband and
the intent to exercise such control. Commonwealth v. Gladden, 665 A.2d 1201, 1206 (Pa.Super.
1995). These elements can be inferred from the totality of the circumstances. Commonwealth v.
Gilchrist, 386 A.2d 603 (Pa.Super. 1978). "Constructive possession is an inference arising from
a set of facts that possession of the contraband was more likely than not." Commonwealth v.
Parker, 847 A.2d 745 (Pa.Super. 2004). Constructive possession may be proved by
circumstantial evidence. Commonwealth v. Carter, 450 A.2d 142, 144 (Pa.Super, 1982).
Individually, the circumstances may not be decisive; but, in combination, they may justify an
inference that the accused had both the power to control and the intent to exercise that control,
which is required to prove constructive possession. Id.
13 In the case sub Judice, the evidence more than supported a conviction. A sock
containing over 1000 stamp bags of heroin was recovered from a car that also contained
Appellant's wallet, passport, and medications. Appellant's hand was on the driver's door
handle of that vehicle when he was apprehended. At one point, Appellant admitted being inside
the car. A jury could easily have found, based on this evidence, that Appellant had both the
ability and the intent to control the drugs inside the car.
Similarly, the evidence overwhelmingly supports the conclusion that the drugs were
possessed with the intent to deliver, and not for personal use. The large number of stamp bags
in and of itself would likely suffice for a jury to determine that personal use was uni ikely.
However, when the additional factors are taken into consideration, such as the lack of personal
use paraphernalia, Appellant's minimal reported income, and the use of a car not registered in
his name, the jury was well within its prerogative to find that the Commonwealth had met its
burden.
Appellant's next issue, that the verdict was against the weight of the evidence, is also
without merit. The standard for a "weight of the evidence" claim is as follows:
Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and (her] decision will not be reversed on appeal unless there has been an abuse of discretion .... The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.
Commonwealth v. Taylor, 471 A.2d 1228, 1230 (Pa.Super. 1984). See also, Commonwealth. v.
Marks, 704 A.2d 1095, 1098 (Pa.Super. 1997) (citing Commonwealth v. Simmons, 662 A.2d
621, 630 (Pa. 1995)).
14 Appellant alleges that the evidence did not permit a finder of fact to determine whether
Appellant conspired to possess a controlled substance with intent to deliver. Based on the
evidence presented at trial, the verdict does not so shock the conscience as to necessitate a new
trial. Appellant and Miller were apprehended on either side of the Avalon, which was leased to
Miller but contained numerous personal items of Appellant. Their conduct on the day in
question, including the various statements of ownership of the vehicle, provides circumstantial
evidence that Appellant and Miller were conspiring. The jury could reasonably conclude that
Appellant and Miller were working together to sell heroin. As such, Appellant's claim is
without merit.
Appellant alleges that the verdict was inconsistent. Appellant was convicted of
Possession with Intent to Deliver but found not guilty of Possession. This allegation is based on
an incorrect understanding of the law.
Consistency in verdicts in criminal cases is not necessary .... When an acquittal on one count in an indictment is inconsistent with a conviction on a second count, the court looks upon the acquittal as no more than the jury's assumption of a power which they had no right to exercise, but to which they were disposed through lenity. The rule that inconsistent verdicts do not constitute reversible error applies even where the acquitted offense is a lesser included offense of the charge for which a defendant is found guilty.
Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa.Super. 2004).
Next, Appellant alleges that the verdict was not unanimous. Appellant's allegation that
the jury verdict was not unanimous is not supported by the evidence. On April 2, 2012, the jury
in the above-captioned case rendered a unanimous verdict of Guilty on all counts (ST 2). That
verdict was confirmed by individual polling (ST 3-5) and then recorded with all jurors affirming
their agreement by responding "I do." (ST 5) On April 5, 2012, Defendant filed a Motion for
Extraordinary Relief seeking a hearing and an order vacating the verdict and granting a new
15 trial. On April 9, 2012, Defense Counsel filed Counsel's Affidavit in Support of Motion for
Extraordinary Relief (11Affidavit'1).
This Court presided over the jury trial and the rendering of the verdict including the
polling of the jury. Contrary to Defense Counsel's assertion (Affidavit, 2), Juror 11 did not need
to be polled 3 times. Juror 11, who was visibly emotional when the verdict was rendered,
initially paused, then gave a barely audible affirmative response without being prompted by the
Court. While it was visually clear that Juror 11 responded 11Yes11, as his response was barely
audible, he was asked by the Court to keep his voice up. Immediately thereafter, he promptly
responded audibly 11Yes.11 (Transcript of Verdict testimony, hereinafter VT 4) All parties
present in the Courtroom at that time apparently were satisfied that the verdict was unanimous
as evidenced by the fact that defense counsel did not then pose any objection. The verdict was
recorded, again with an affirmation by all jurors, and the jury discharged. (VT 5-7).
Reportedly, some forty-five minutes after the verdict had been recorded and the jury
dismissed (Affidavit, 3), Defendant's Counsel interviewed the emotional juror, a practice
discouraged as against public policy. See Pratt v. St. Christopher's Hosp., 581 Pa. 524, 540
(2005) (quoting Commonwealth v. Patrick, 416 Pa. 436, 442"43 (1965)). Defendant's Counsel
submitted his own Affidavit purporting to quote Juror 11 at some length, on the one hand
denying that he voted to find Defendant guilty, and on the other hand stating that the other
jurors had pressured him bysaying they would be stuck deliberating for weeks without his vote
(Defendant's Counsel's Affidavit, 3-4).
Pa. Rule of Evidence 606(b) and longstanding case law make clear that "after the jury
has separated and been discharged, jurors may not invalidate or impeach a verdict by their own
testimony." Patrick, 416 Pa. at 442 (citing cases). Under similar facts, the Third Circuit,
16 applying its essentially identical rule (Fed.R.Evid. 606), reiterated the policy reasons behind the
rule which include: "discouraging harassment of jurors by losing parties eager to have the
verdict set aside; ... promoting verdict finality; [and] maintaining the viability of the jury as a
judicial decision-making body .11 United States v. Lakhani, 480 F.2d 171, 184 (3d Cir. 2007)
(quoting Gov't of the V.l. v. Gereau, 523 F.2d 140 (3d Cir. 1975)).
Appellant does not allege either extraneous information or outside influence which
would be exceptions to Rule 606(b ). Rather, Defendant argues that the verdict as rendered
indicated a lack of assent by Juror 11. This Court determined that Juror 11 did assent both
initially and again after being asked to keep up his voice by responding "Yes" to the question
11[ dJo you agree with the verdict as read by your foreperson?" Likewise, this Court observed
Juror 11 verbalize his agreement with the verdict by saying 1 do" when the Minute Clerk 11
recorded the verdict. While Juror 11 did use a tissue to dab at his eyes, and did pause very
briefly before his initial barely audible response, such indication of emotion is not uncommon
for jurors when rendering a verdict. More germane is the fact that counsel did not request a
sidebar, make a motion or otherwise indicate any concern at that time as to the assent of all the
jurors. Asking that the jurors be polled is common practice in this Court upon receipt of a guilty
verdict and, as in this case, is prompted by an inquiry from the Minute Clerk (VT 2). After the
jury was polled, Defense Counsel did not in any way indicate concern that the verdict was not
unanimous.
Appellant alleges that a juror was in some manner coerced into finding Appellant guilty.
This Court is unable to further address this allegation as Appellant fails to state precisely in
what manner or by what means such coercion was to have taken place. Likewise, the allegation
of "significant and reversible issues in the deliberation process," without further elaboration,
17 does not give the Court sufficient information from which this Court can prepare a legal
analysis pertinent to the issue. Therefore, these issues are waived. Pa.RAP. 1925(b) (4) (ii),
(vii).
Sentencing
Appellant makes numerous allegations regarding the inappropriateness of his sentence.
Before addressing the substantive issue, Appellant must raise a substantial question that his
sentence is not appropriate under the Sentencing Code. 42 P.S. § 978l(b); Commonwealth v.
Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995). The determination of whether a particular issue
constitutes a "substantial question" can only be evaluated on a case by case basis.
Commonwealth v. House, 537 A.2d 361, 364 (Pa.Super. 1988). It is appropriate to allow an
appeal "where an appellant advances a colorable argument that the trial judge's actions were: (1)
inconsistent with a specific provision of the sentencing code; or (2) contrary to the fundamental
norms which underlie the sentencing process." Commonwealth v. Losch, 535 A.2d 115, 119-120
n. 7 (Pa.Super. 1987). Although Appellant's Concise Statement fails to specifically allege which
provision applies, this Court shall dispose of Appellant's claim on its merits.
First, Appellant claims that the sentencing court erred in not sentencing Appellant to a
RRRI sentence following the Commonwealth's waiver of eligibility requirements. 61 P.S. §
4505(b) states in relevant part:
(b) Waiver of eligibility requirements.s-The prosecuting attorney, in the prosecuting attorney's sole discretion, may advise the court that the Commonwealth has elected to waive the eligibility requirements of this chapter if the victim has been given notice of the prosecuting attorney's intent to waive the eligibility requirements and an opportunity to be heard on the issue. The court, after considering victim input, may refuse to accept the prosecuting attorney's waiver of the eligibility requirements.
18 Because this Court has discretion to refuse the prosecuting attorney's waiver, the
appropriate inquiry is whether this Court abused its discretion. Assuming, arguendo, that
Appellant had raised a substantial question, the standard of review with respect to sentencing is
whether the sentencing court abused its discretion. Commonwealth v. Smith, 673 A.2d 893, 895
(Pa. 1996). A court will not have abused its discretion unless "the record discloses that the
judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-
will." Id. It is not an abuse of discretion if the appellate court may have reached a different
conclusion. Grady v. Frito-Lay, Inc., 613 A.2d 1038, 1046 (Pa. 2003).
This Court considered numerous factors in sentencing Appellant, including the Pre-
Sentence report. The Pennsylvania Supreme Court has held:
Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors ... Having been informed by the. pre-sentence report, the sentencing court's discretion should not be disturbed.
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.Super. 1988).
When imposing a sentence, this Court is required to consider, among other things, the • protection of the public, the gravity of the offence in relation to the impact on the victims and
community and the rehabilitative needs of the defendant. 42 P.S. § 972l(b). As a juvenile,
Appellant pied guilty to Indecent Assault. More recently, Appellant pied to Disorderly Conduct
at four separate criminal petitions. Both the juvenile case and the adult pleas resulted in the
withdrawal of more serious charges, including rape in the juvenile case and three counts of
possession as an adult. At the time of this trial, Appellant had three pending simple assault cases
which had been postponed repeatedly by defense counsel until after this jury trial. After his
conviction in this case but prior to sentencing, Appellant pied guilty and was sentenced in each
19 of those assault cases. Appellant's conviction history precluded him from RRRI-eligibility.
Despite the Commonwealth's willingness to waive eligibility requirements, this Court remained
concerned that Appellant's aggressive history, including a crime involving sexual violence, made
him a substantially less than ideal candidate for success with RRRI. Furthermore, the facts in
this case include Appellant's efforts to intimidate Dealership staff both verbally and also by
showing a firearm and then by abandoning an Impala in a manner intended to inconvenience the
Dealership.
Lastly, Appellant alleges that this Court abused its discretion by failing to
sentence him to Boot Camp. This claim, like Appellant's numerous other issues, is
without merit and fails under similar analysis as Appellant's previous issue. The
statutory criteria for consideration for the Boot Camp program include a sentence of
confinement "the minimum of which is not more than two years and the maximum of
which is five years or less." 61 P.S. § 3903. · As Appellant was sentenced to the
mandatory sentence of three to six years on the PWID count, he was not Boot Camp
eligible. Assuming, arguendo, that Appellant were eligible for Boot Camp, this Court
has discretion to fashion a sentence that best satisfies the criteria set forth in 42 P.S. §
972l(b). For the same reasons as stated above regarding RRRI, this Court determined
that Appellant's overall criminal history and aggressive behavior made him a poor
candidate for Boot Camp. Furthermore, Appellant stated that he had suffered a closed-
head injury from which he continued to experience deficits. This Court considered that
the effects of that closed head injury would make him unsuitable for the physically
rigorous aspects of the Boot Camp program.
20 CONCLUSION
For all of the above reasons, no reversible error occurred and the findings and rulings of
this Court should be AFFIRMED.
BY THE COURT:
________________J.
21 Circulated 07/11/2016 02:28 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA . CRIMINAL DIVISION
RANGOS,J. September 24, 2015
On April 2, 2012, Appellant, Christopher Younger, was convicted by a jury of his. peers
of one count of Possession with Intent to Deliver a Controlled Substance" (Heroin) and one count
of Criminal Conspiracy". Appellant was sentenced to the mandatory three to six years of
incarceration on the PWID count with three years consecutive probation and three years
probation concurrent on the Conspiracy count. Post- Sentence Motions were denied on
September 17, 2012 and Appellant filed a Notice of Appeal on October 15, 2012. Appellant
filed a Statement of Errors Complained of on Appeal on November 7, 2012, raising seven issues
on appeal, and a supplemental Concise Statement nunc pro tune on November 25, 2013,
incorporating by reference the first Concise Statement and raising ten issues, some of which
overlapped. Neither pleading raised an issue with regard to the imposition of a mandatory
1 35 P.S. § 780-l13(a) (30). 1. 18 P.S. § 903(a).
2 sentence in consideration of Alleyne v. Unites States, _U.S._, 133 S.Ct. 2151 (2013). This
Court issued its Opinion on January 31, 2014. Nonetheless, Appellant raised an Alleyne issue on
appeal. The Superior Court of Pennsylvania vacated the sentence based on the weight of the
heroin not having been proven beyond a reasonable doubt, and remanded for resentencing. The
Court declined to address Appellant's numerous other issues on appeal without prejudice for
Appellant to raise them again following his resentencing.
This Court resentenced Appellant on November 14, 2014 to 16 to 50 months
incarceration, followed by consecutive period of probation of three years. Appellant filed a Post-
Sentence Motion which was denied on March 16, 2015. Appellant filed a Notice of Appeal on
April 6, 2015 and a Concise Statement of Errors Alleged on Appeal on April 27, 2015.
MATTERS COMPLAINED OFON APPEAL
Appellant raises eight allegations of error on appeal, some of which contain subissues,
many of which repeat prior allegations of error in previous Concise Statements. To the extent
this Concise Statement mirrors previous versions, this Court adopts and incorporates its prior
Opinion of January 31, 2014.
Appellant amended and expanded his Concise Statement in three areas. First, Appellant
alleges that Detective Hredzak testified that Appellant consented to a car search, but the search
warrant affidavit indicated that Appellant indicated he could not consent to the search as it was
not his car. Appellant alleges that if "false statements" are excluded, what remains is insufficient
to establish probable cause to search the vehicle. Additionally, Appellant alleges prosecutorial
misconduct in presenting evidence which contradicted information in the search warrant,
specifically, Detective Hredzak's testimony regarding whether consent was given to search the
3 vehicle. Lastly, Appellant alleges this Court erred in sentencing him excessively and failing to
consider mitigating factors including Appellant's accomplishments and rehabilitation while
incarcerated. Appellant alleges that the Court failed to state sufficient reasons on the record for a
sentence imposed at the highest end of the guidelines and incorrectly determining the Offense
Gravity Score for his offense. (Concise Statement of Errors alleged on Appeal, 4/27/15, at 2-8)
For a detailed summary of the testimony in this case, see Opinion, January 31, 2014, at 4-
6.
DISCUSSION
Appellant's third Concise Statement lists many issues which this Court has addressed in
its Opinion dated January 31, 2014. As such, this Court adopts its previous Opinion and hereby
supplements it to address additional considerations raised by Appellant.
Appellant alleges that the affidavit for a search warrant was based on false or inaccurate
information, which, if excluded, would leave the affidavit devoid of probable cause. Appellant
specifically alleges that Detective Hredzak testified that Appellant consented to the search of the
Impala, while the averments in the search warrant indicate that Appellant said he was unable to
consent to such a search in that he was not the owner of the vehicle. Both Corporal Colberg and
Officer Hredzak testified that Appellant gave numerous stories and several explanations of his
conduct, and both stated that Appellant at one point gave consent to search the Impala. This
Court found the testimony of the police officers credible and useful in reconciling the purported
inconsistency between the search warrant affidavit and the testimony. As the inconsistency is
based on Appellant giving police several different versions of his story and not on the officers
4 providing false testimony, allegations of error based on alleged false testimony are without
merit. Likewise, any allegation of prosecutorial misconduct on this issue is also without merit.
Next, Appellant has raised several new challenges to the validity of his sentence.3
Appellant alleges this Court failed to consider mitigating evidence, including the disparity
between his sentence and his co-defendant's sentence, the amount of time served and his
rehabilitation while incarcerated. Appellant further alleges that his Offense Gravity Score was
improperly calculated, leading to a longer sentencing range within the Sentencing Guidelines.
Appellant alleges this Court erred in failing to put on record its reasons for sentencing him at the
high end of the guidelines.
Appellant alleges this Court failed to consider statutory sentencing factors, specifically
Appellant's conduct since his initial incarceration. Appellant's claim constitutes a challenge to
the discretionary aspects of his sentence. Commonwealth v. Lamonda, 52 A.3d 365, 371
(Pa.Super. 2012). "[T[here is no absolute right to appeal when challenging the discretionary
aspect of a sentence." Commonwealth v. Crump; 995 A.2d 1280, 1282 (Pa.Super. 2010); 42
Pa.C.S. § 9781(b). An "[ajppeal is permitted only after this Court determines that there is a
substantial question that the sentence was not appropriate under the sentencing code." Crump,
995 A.2d at 1282. The determination of whether a particular issue constitutes a "substantial
question" can only be evaluated on a case by case basis. Commonwealth v. House, 537 A.2d
361, 364 (Pa.Super. 1988). It is appropriate to allow an appeal "where an appellant advances a
colorable argument that the trial judge's actions were: (1) inconsistent with a specific provision
of the sentencing code; or (2) contrary to the fundamental norms which underlie the sentencing
process." Commonwealth v. Losch, 535 A.2d 115, 119-120 n. 7 (Pa.Super. 1987).
J This Court notes that Appellant appears to have abandoned his challenges to the sentence based on Appellant's eligibility for RRRI and Boot Camp.
5 An allegation that a sentencing court "failed to consider" or "did not adequately consider" certain factors does not raise a substantial question that the sentence was inappropriate. Commonwealth v. McKiel. 427 Pa.Super. 561, 629 A.2d 1012 (1993); Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en bane). Such a challenge goes to the weight accorded the evidence and will not be considered absent extraordinary circumstances. McKiel, 427 Pa.Super. at 564, 629 A.2d at 1013.
Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995).
Appellant's allegation of error, that this Court failed to adequately apply all of the
required sentencing factors, does not raise a substantial question for appellate review. However,
in an abundance of caution, this Court will address the merits of Appellant's claim.
The standard of review with respect to sentencing is whether the sentencing court abused
its discretion. Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996). A court will not have
abused its discretion unless "the record discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will." Id. It is not an abuse of
discretion if the appellate court may have reached a different conclusion. Grady v. Frito-Lay,
Inc., 613 A.2d 1038, 1046 (:Pa. 2003).
As this Court previously stated, this Court, in fashioning its sentence of Appellant,
considered the protection of the public, the gravity of the offense in relation to the impact on the
victims and the community, and the rehabilitative needs of defendant. 42 Pa.C.S. § 972l(b).
Moreover, this Court was guided by the Pre-Sentence Report and the Sentencing Guidelines.
The Pennsylvania Supreme Court has held:
Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors ... Having been informed by the pre-sentence report, the sentencing court's discretion should not be disturbed.
6 Appellant alJeges this Court failed to consider certain mitigating factors, including his
amount of time served, rehabilitative efforts, and the disparity between his and his co-
defendant's sentence. The sentence of a co-defendant is irrelevant to Appellant's sentence.
Appellant must be sentenced on his own merits, according to sentencing factors listed in §
9721(b ). As to his rehabilitative efforts, while this Court did consider such efforts and
commends Appellant for his efforts, this Court must also consider the protection of the
community and the gravity of the offense. Despite Appellant's numerous classes, he continued
to demonstrate by his attitude and demeanor the same lack of maturity and respect for authority
that this Court observed during the trial and that the evidence at trial suggests were at the root of
the initial confrontation at the dealership as well as much of what followed. This Court
continued to be concerned about Appellant's ability to return to society and lead a law-abiding
life. When all of the sentencing factors were considered by this Court, it did not abuse its
discretion in imposing a sentence that was within the standard range of the Sentencing
Guidelines.
Appellant alleges his Offense Gravity Score (OGS) was calculated incorrectly, and as a
result, his sentence is unduly harsh. Appellant is incorrect. 204 Pa.C.S. § 303.15 states that 35
Pa.C.S. § 780-113 §§ A30 Possession With Intent to Deliver Heroin carries an OGS of 8 when
the amount of heroin in question was between 10 and 50 grams. In the case sub judice, the
amount of heroin was 17 grams. This Court used an 8 OGS in sentencing Appellant.
Appellant's argument that Alleyne should be extended to Offense Gravity Scores within the
Sentencing Guidelines is not supported by any authority and would lead to the fact finder having
to determine a non-mandatory sentencing range, an outcome which it is unlikely the legislature
intended. As a result, this Court did not improperly assign Appellant's OGS.
7 This Court, after summarizing its reasoning in sentencing Appellant, was asked
by Appellant to specifically place its reasons on the record. The Court responded:
I gave you a standard range sentence with a longer tail because I want to give the parole board the opportunity to determine whether or not the concerns that I had in sentencing originally have been resolved, whether you've been rehabilitated. Incarceration is not just about doing the time. It is about demonstrating _that you've made some changes that will make you successful as a productive member of the community.
As discussed above, this Court had continued concerns over whether Appellant had been
rehabilitated. Nevertheless, this Court imposed a standard range sentence that made Appellant
immediately eligible for the Parole Board to reach a different conclusion.
CONCLUSION
For all of the above reasons, no reversible error occurred and the findings and rulings of
J.
8 CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of this OPINION was
mailed to the following individuals by first class mail, postage prepaid on the 24th day of
September 2015.
Michael Streily Office of the District Attorney 401 County Courthouse Pittsburgh, PA 15219
-~ Jam s J. Robertson, Law clerk for Jill E. Rangos