Com. v. Younger, J.

• Court: Superior Court of Pennsylvania
• Decided: April 10, 2018
• Docket: 916 WDA 2017
• Status: Unpublished

Opinion

J-S05022-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMAL ANTHONY YOUNGER : : Appellant : No. 916 WDA 2017

Appeal from the Judgment of Sentence October 13, 2015 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0001084-2015

BEFORE: OLSON, J., OTT, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.: FILED APRIL 10, 2018

Jamal Anthony Younger appeals nunc pro tunc from the judgment of

sentence imposed October 13, 2015, in the Fayette County Court of Common

Pleas. The trial court sentenced Younger to a term of five to 10 years’

imprisonment, followed by four years’ probation, after a jury convicted him of

robbery1 and related charges. Younger asserts two claims of trial court error

on appeal: (1) the court erred in failing to sustain his objection that one of the

victim’s answers during cross-examination was unresponsive, and (2) the

court erred in permitting the Commonwealth to admit into evidence Younger’s

prior criminal record absent proper authentication. For the reasons below, we

affirm. ____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S. § 3701(a)(1)(iii). J-S05022-18

The facts underlying Younger’s convictions are as follows. In the early

morning hours of May 22, 2015, the victim, Thomas Hall III, was at Aldolph’s

Bar in Masontown. Hall was acquainted with both Younger and co-conspirator,

John Charles Thomas, and he saw Younger in the bar sometime that evening.

See N.T., 10/5/2015, at 20-21, 30.2 When Hall left at around 2:00 a.m., he

encountered Younger and Thomas outside the bar. Hall explained the events

that transpired as follows:

When I exited the bar, [] Thomas pulled a gun out and pointed it at me and demanded that I give him all of my money, and while the gun was aimed at me, that’s when [] Younger started searching me and patting me down, and that’s when he took my wallet, both of my cell phones and my prescription medication.

Id. at 22. Hall stated both men told him they would kill him if he did not give

them his money. See id. at 22-23. Hall explained that after the men robbed

him, Younger gave him back his wallet3 and one cell phone, and Thomas told

him to go back into the bar. See id. at 23. Later that day, Hall saw Younger

again at the location where the robbery occurred, and stated that Younger

was “trying to explain” to Hall that he “stopped [Hall] from getting shot.” Id.

at 24. During the investigation of the incident, the police obtained security

____________________________________________

2Hall could not recall if he saw Thomas in the bar prior to the robbery. See N.T., 10/5/2015, at 30.

3 Hall testified there was no money in his wallet. See id. at 23.

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video from a camera outside of the bar, which showed Thomas and Younger

robbing Hall at gunpoint.4 See Trial Court Opinion, 10/2/2017, at 2.

Younger was subsequently arrested and charged with two counts of

robbery, and one count each of simple assault, recklessly endangering another

person, theft, receiving stolen property, and criminal conspiracy. 5 The case

proceeded to a jury trial, and, on October 6, 2015, a jury returned a verdict

of guilty on all charges. Younger was sentenced on October 13, 2015 to a

term of five to 10 years’ imprisonment, followed by four years’ probation, on

his conviction of robbery under subsection 3701(a)(1)(iii). See 18 Pa.C.S. §

3701 (a)(1)(iii) (“A person is guilty of robbery if, in the course of committing

a theft, he … commits or threatens immediately to commit any felony of the

first or second degree”). The court imposed no further penalty on the

remaining convictions.

4 We note both Younger and Thomas, who had entered a guilty plea prior to trial, testified for the defense. Thomas claimed he had bad blood with Hall, and Younger only participated in the robbery because Thomas threatened him. See N.T., 10/5/2015, at 57 (“I told Mr. Younger that if he didn’t do what I told him that I needed to do, then I was going to do the same thing to him.”). Younger testified that Thomas’ threat was not so direct, but rather Thomas told him that if Younger did not “grab [Hall] and make sure he doesn’t leave, [Thomas was] just going to start shooting.” Id. at 65. He also insisted he apologized to Hall the next day. See id. at 67.

5 See 18 Pa.C.S. §§ 3701(a)(1)(iii) and (v), 2701(a)(3), 2705, 3921(a), 3925(a), and 903, respectively.

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Younger filed a timely direct appeal, challenging the sufficiency of the

evidence supporting his convictions. A panel of this Court affirmed the

judgment of sentence, concluding that Younger had waived his claim because

he filed an “overly broad [Pa.R.A.P.] 1925(b) [concise statement]” which

“failed to alert the trial court to which elements of which offenses he intended

to challenge.” Commonwealth v. Younger, 156 A.3d 353 [1676 WDA

2015](Pa. Super. 2016) (unpublished memorandum at 3).

Thereafter, on January 3, 2017, Younger filed a timely, pro se, petition

for collateral relief pursuant to the Post Conviction Relief Act (“PCRA”).6

Counsel was appointed, and filed an amended petition alleging the

ineffectiveness of direct appeal counsel for failing to file a proper Rule 1925(b)

statement. On May 30, 2017, the PCRA court entered an order reinstating

Younger’s direct appeal rights nunc pro tunc. This timely appeal followed.7

In his first issue on appeal, Younger contends the trial court erred when

it failed to sustain his objection to an answer provided by Hall during his cross-

examination, and failed to provide a curative instruction. See Younger’s Brief

at 8-9. His claim is based upon the following testimony:

[Defense counsel:] Didn’t you testify earlier that [Younger] did apologize in some manner as this was going on?

6 42 Pa.C.S. §§ 9541-9546.

7In its May 30, 2017, order, the PCRA court also directed Younger to file a Rule 1925(b) concise statement. Younger complied with the court’s directive, and filed a concise statement the same day as his notice of appeal.

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[Hall:] I wouldn’t really call it an apology. He never …

[Prosecutor:] Judge, I am going to object because this is a mischaracterization. The testimony was that [Younger] apologized way later the next day, and it wasn’t really that he apologized. There is no such testimony on the record.

THE COURT: You have asked the question and he has essentially answered it and said that he didn’t call it – he wouldn’t call it an apology.

[Defense counsel:] Okay.

MR. HALL: Am I allowed to say something?

THE COURT: You have to wait for a question unless you are answering that last question.

MR. HALL: Yeah, it is that last question. I mean, he found out that the video got released to the police.

[Defense counsel:] Objection. Nonresponsive.

MR. HALL: And, that’s when he got scared …

[Defense counsel:] That’s nonresponsive.

THE COURT: Hold on, Mr. Hall. Okay. Don’t assume what was going on in his mind. What you are saying is that you had heard this video was available before you ever had any further communications with him; is that what you are saying?

MR. HALL: Yeah.

THE COURT: Okay. You can proceed, [defense counsel].

N.T., 10/5/2015, at 36-37.

Here, Younger argues Hall’s statement, that Younger apologized only

after learning of the video footage, was “non responsive to the question asked”

by Younger’s attorney, and the trial court “had a duty to sustain the objection

and provide the jury with a curative instruction that they must ignore these

statements.” Younger’s Brief at 9. Furthermore, he maintains the court’s

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failure to do so constituted reversible error “because [] Hall was able to imply

to the jury that [Younger’s] apology was only an attempt to cover up his part

in the robbery after [he] learned that the police had the video of the incident.”

Id.

“[T]he trial court has the power to exercise reasonable control over the

mode and order of interrogating witnesses and presenting evidence, to avoid

needless waste of time.” Commonwealth v. Boxley, 838 A.2d 608, 615 (Pa.

2003), citing Pa.R.E. 611(a). Here, although the trial court did not explicitly

sustain Younger’s objection, it did so implicitly, when it instructed Hall “don’t

assume what was going on in [Younger’s] mind.” N.T., 10/5/2015, at 37.

Moreover, while the court did not provide a curative instruction, which directed

the jury to disregard Hall’s prior comment, Younger did not request such an

instruction, and accordingly, this claim is waived. See Commonwealth v.

Sandusky, 77 A.3d 663, 670 (Pa. Super. 2013) (“[E]ven where a defendant

objects to specific conduct, the failure to request a remedy such as a mistrial

or curative instruction is sufficient to constitute waiver.”) (quotation omitted).

Therefore, Younger is entitled to no relief on this claim.

Next, Younger argues the trial court erred in admitting a certified copy

of his prior criminal record into evidence when the Commonwealth failed to

present a witness to authenticate the document. See Younger’s Brief at 10.

He insists the document, which was used by the Commonwealth to establish

Younger had a prior crimen falsi conviction, was a business record pursuant

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to 42 Pa.C.S. § 6108, and, therefore, had to be authenticated by a qualified

witness. See id. at 10-11.

Our review of a trial court’s evidentiary ruling is well-settled:

In reviewing a trial court’s ruling on the admissibility of evidence, our standard of review is one of deference. It is firmly established, “questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and [a reviewing court] will not reverse the court’s decision on such a question absent clear abuse of discretion.”

Commonwealth v. Sweitzer, 177 A.3d 253, 260–261 (Pa. Super. 2017)

(quotation omitted).

In the present case, prior to the second day of trial, the Commonwealth

indicated to the court that it intended to present to the jury a copy of Younger’s

certified criminal record, which established he had a prior crimen falsi

conviction. See N.T., 10/6/2015, at 78. Younger objected to the introduction

of the document absent authentication by a proper witness, arguing it

constituted a business record.8 See id. at 79. The trial court overruled the

objection, concluding the document was admissible pursuant to Pennsylvania

Rule of Evidence 902. See id. at 80-81. We agree.

8 We note that although Younger objected to the lack of authentication of the criminal record, he improperly cited to Pa.R.E. 803(6), which governs hearsay. On this basis, we could conclude that his present argument is waived. See Commonwealth v. McGriff, 160 A.3d 863, 871 (Pa. Super. 2017), appeal denied, 176 A.3d 853 (Pa. 2017) (“It is well-established that ‘[a] party complaining, on appeal, of the admission of evidence in the court below will be confined to the specific objection there made.’”) (quotation omitted).

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The Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108,

requires, as a general rule, the authentication of business records via the

testimony of a custodian or qualified witness:

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

42 Pa.C.S. § 6108(b). However, Pennsylvania Rule of Evidence 902 provides

that certain documents are “self-authenticating” and “require no extrinsic

evidence of authenticity to be admitted.” Pa.R.E. 902. Included among these

are certified copies of public records, which the rule defines as follows:

A copy of an official record--or a copy of a document that was recorded or filed in a public office as authorized by law- if the copy is certified as correct by … the custodian or another person authorized to make the certification[.]

Pa.R.E. 902(4)(A).

In the present case, the trial court admitted a certified copy of Younger’s

prior record pursuant to Rule 902. The court explained the document had a

“stamped signature of Kate Barkman from the Records Attested Department

of Court Records” and was time-stamped “2010, January 22, 3:31 p.m.,

Department of Court Records, Criminal Division, Allegheny County,

Pennsylvania.” N.T., 10/6/2015, at 80. Because it concluded the “attestation

is a certification by a custodian” pursuant to Rule 902(4)(A), the trial court

overruled Younger’s objection, and permitted the Commonwealth to offer the

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document to the jury. Id. We find no error or abuse of discretion in the

court’s ruling. Furthermore, we note Younger fails to address the applicability

of Rule 902, but rather, simply insists the document had to be authenticated

under Section 6108. Accordingly, Younger’s second claim also warrants no

relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/10/2018

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