Com. v. Younger, J. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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 Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S. § 3701(a)(1)(iii).
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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
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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.
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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?
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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.
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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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