Com. v. Yannella, A. ( 2022 )

J-S29020-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AUSTIN MICHAEL YANNELLA :
:
Appellant : No. 314 WDA 2022
Appeal from the Judgment of Sentence Entered January 6, 2022
In the Court of Common Pleas of Cambria County
Criminal Division at CP-11-CR-0000736-2021
BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED: OCTOBER 17, 2022
Austin Michael Yannella (Appellant) appeals from the judgment of
sentence imposed after a jury convicted him of two counts each of aggravated
assault and simple assault; and one count each of firearms not to be carried
without a license, recklessly endangering another person (REAP), and resisting
arrest1 (collectively, the jury offenses). The trial court separately convicted
Appellant of failure to stop at a red signal, and driving while operating privilege
is suspended or revoked2 (collectively, the summary offenses). We affirm.
The trial court recounted the relevant facts and procedural history of
this case as follows:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S.A. §§ 2702(a)(2) and (a)(6), 2701(a)(1) and (a)(3), 6106(a)(1),
2705, 5104.
2 75 Pa.C.S.A. §§ 3112(a)(3), 1543(a).
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On or about July 13, 2021, Chief Travis Shilling of the Patton
Borough Police Department was on stationary traffic watch in
Patton Borough, Cambria County when he observed a vehicle
make a left turn through a steady red [traffic] light. Chief Shilling
initiated a traffic stop as the subject vehicle was turning into the
Patton Sheetz parking lot. As Chief Shilling pulled into the parking
lot, [Appellant,] the driver of the subject vehicle[,] exited his car.
Chief Shilling asked [Appellant] to return to his vehicle, but he
refused to do so and began yelling and walking away. Chief
Shilling approached [Appellant] and again requested that he
return to his vehicle, but [Appellant] refused, began yelling
obscenities at the officer, and began clenching his fists and
jumping up and down. Chief Shilling removed his taser from its
holster and again asked [Appellant] to comply. [Appellant] then
walked to the back of Chief Shilling’s cruiser and pulled a black
firearm from [Appellant’s] waistband. Chief Shilling then deployed
his taser and, with the help of a bystander, secured [Appellant’s]
weapon and took him into custody.
***
[After the Commonwealth charged Appellant with the above
offenses, the defense] made several oral requests for a
continuance to [the trial c]ourt at a review hearing on September
29, 2021, and at jury selection on September 30, 2021. N.T.,
9/29/2021, pp. 4, 9, 11, 13; N.T., 9/30/2021, pp. 10, 15, 21.
Appellant’s stated reasons for requesting a continuance were that:
(1) he had not been provided with sufficient time to review the
evidence which the Commonwealth intended to present at trial[;]
(2) he had not had time to meet with a second attorney that had
been appointed on his case[;] (3) he needed additional
information to decide between pursuing a jury or non-jury trial[;]
and (4) his lead attorney, [] Maureen McQuillan[, Esquire
(Attorney McQuillan)3], was “ineffective” in some unspecified way.
Id. After discussions lasting several hours with Appellant and his
attorneys on both of the above dates[,] and repeated explanations
of Appellant’s options, [the trial c]ourt chose to deny the requests
for a continuance and proceeded to jury selection. N.T.,
9/29/2021, pp. 3-5, 8-13; N.T., 9/30/2021, pp. 10-29.
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3 Attorney McQuillan represents Appellant on appeal.
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Trial Court Opinion, 5/5/22, at 1-2, 4 (unnumbered) (footnote 3 added,
citations modified).
At trial, Attorney McQuillan claimed in her opening statement that
Appellant suffered from mental health issues which would explain his bizarre
and “paranoid” behavior. See N.T., 10/18/21, at 29 & 30 (“[Appellant] was
diagnosed with schizophrenia in 2020,” and “suffers from auditory and visual
hallucinations” that can “cause him to act out in paranoid ways at times.”);
id. at 30 (“[Appellant] is prescribed certain medications” and “suffered from
ADHD as a child.”); id. at 33 (“[Appellant] is marginalized, under-treated for
his diseases”). Appellant did not present any witnesses at trial to confirm the
purported issues.
Later at trial, the Commonwealth played for the jury a video of the
incident (video) taken by Chief Shilling’s police body camera. Id. at 49
(admission and publication of the video – Commonwealth Ex. 2 – without
objection). The following exchange occurred at sidebar:
THE COURT: … [W]e talked in chambers and [the defense] had
indicated [it] wanted to play a [separate] portion of the body cam
[video] with [Appellant’s] statements after he had been tased and
was being placed in custody. Was it after he was cuffed?
ATTORNEY MCQUILLAN: During and after.
THE COURT: And the Commonwealth objected…. If you want to
indicate what you want to [introduce into evidence,] … I will give
you my ruling.
ATTORNEY MCQUILLAN: Thank you, Your Honor. … [T]he
Commonwealth provided us [in discovery with] body cam [video]
of … the actual arrest of [Appellant]. The Commonwealth played
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a portion of [the video for the jury], but not the entire two- or
three-minute [video]. We would suggest that … [the complete
video] would be admissible to paint the full picture of the
statements that were uttered between [Appellant] and the officer
during the arrest.
***
THE COURT: Commonwealth, your position?
[THE PROSECUTOR]: Your Honor, just to be clear, in [the
defense’s] opening there was reference to [Appellant’s] mental
health, specifically schizophrenia. I think at this point the video
would be offered to allow the jury to make a conclusion that, yes,
[Appellant] does have these issues, this is why he should
potentially be found not guilty. I would object to the playing of
the rest of [the video] just because of the conclusions that the
jury could derive from the statements made by [Appellant] in
relation to his mental health.
***
THE COURT: Is it my understanding that the statements made
after [Appellant] was in cuffs seem [to be] a bit ranting after he
had been tased …[?]
ATTORNEY MCQUILLAN: Agreed, yes, Your Honor.
[THE PROSECUTOR]: Yes, Your Honor. [Appellant] discusses
enemy forces being after him. I believe there’s a neuro-implant
being discussed, which is the reason for my objection.
THE COURT: … [D]oes the defense intend to call any other
witnesses to lay a foundation as to his mental health or anything
else?
ATTORNEY MCQUILLAN: No, Your Honor.
THE COURT: So I want my record to be really clear. The
[defense’s] opening statement went into great detail about
[Appellant’s] childhood and his mental health diagnoses with no
evidence. [T]here is lacking any foundation of that, so it is the
[c]ourt’s belief that the request to now play [the full video] is a
way to backdoor that through statements without any expert
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testimony[,] allowing the jury to make inferences based upon
representations made in the opening that were not evidence. As
a result of that, … I am going to deny the [defense’s] request to
play the portion at the end [of the video] because, I think, of what
[the defense] put forward to the jury in the opening.
… I think it goes beyond not being relevant as being able
to be misconstrued with evidence not of record. So at this point
I am denying the portion of [the video] after [Appellant] is tased,
but you are permitted to play the rest of it if you choose. …
Id. at 94-96.
Following trial, the jury convicted Appellant of the jury offenses, and the
trial court convicted him of the summary offenses. On January 6, 2022, the
trial court sentenced Appellant to an aggregate of 90 - 180 months in prison.
Appellant filed a timely post-sentence motion seeking modification of his
sentence and a new trial. After a hearing, the trial court granted Appellant’s
motion, in part, and modified the sentence for REAP to run concurrent with
the sentence for one count of aggravated assault. The court otherwise denied
relief. This timely appeal followed.4
Appellant presents two issues for our review:
1. Whether the trial court unreasonably denied [Appellant] a
continuance of jury selection and trial, when [Appellant]
requested additional time to review evidence and confer with
counsel prior to voir dire?
2. Whether the trial court abused its discretion in refusing to
admit the entire body camera video recorded by the officer-
victim, and only admitted the portion selected by the
Commonwealth, thereby depriving the jury of the complete
____________________________________________
4 Appellant and the trial court have complied with Pa.R.A.P. 1925.
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depiction of the events underlying [Appellant’s] criminal
charges?
Appellant’s Brief at 3.
In his first issue, Appellant argues the trial court improperly denied his
pre-trial request for a continuance, and failed to give him sufficient time to
prepare a defense. See id. at 8-9; see also Post-Sentence Motion, 1/13/22,
at 3 (claiming court error for denying the continuance request). Appellant
contends:
It cannot be said that [Appellant’s] continuance request came
merely as an attempt to delay or as a stall tactic. Appellant
requested the continuance to obtain more time to review
discovery and meet with counsel, including a recently assigned
attorney. Appellant avers that he did not have sufficient time to
review discovery with his counsel and was therefore unable to
prepare his defense. Appellant avers that he was not given
sufficient time to meet with counsel to review the evidence which
the Commonwealth intended to use at trial.
Appellant’s Brief at 9 (paragraph break omitted).
Our standard of review from the denial of a continuance request is as
follows:
The grant or denial of a motion for a continuance is within the
sound discretion of the trial court and will be reversed only upon
a showing of an abuse of that discretion. [A]n abuse of discretion
is not merely an error of judgment. Rather, discretion is abused
when the law is over-ridden or misapplied, or the result of
partiality, prejudice, bias, or ill-will as shown by the evidence or
the record. The grant of a continuance is discretionary and a
refusal to grant is reversible error only if prejudice or a palpable
and manifest abuse of discretion is demonstrated.
Commonwealth v. Hansley, 24 A.3d 410, 418 (Pa. Super. 2011) (citation
omitted); see also Pa.R.Crim.P. 106(a) (governing continuances). “In order
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to demonstrate prejudice, the appellant must be able to show specifically
in what manner he was unable to prepare his defense or how he would
have prepared differently had he been given more time.”
Commonwealth v. Broitman, 217 A.3d 297, 300 (Pa. Super. 2019)
(emphasis added; citation omitted). “In reviewing a denial of a continuance,
the appellate court must have regard for the orderly administration of justice,
as well as the right of the defendant to have adequate time to prepare a
defense.” Commonwealth v. Wesley, 753 A.2d 204, 215 (Pa. 2000).
The Commonwealth defends the trial court’s denial of Appellant’s
continuance request, claiming:
[Appellant] presents an argument that he vaguely “did not have
enough time to review discovery” and he was “unable to prepare
his defense.” Brief for Appellant, p. 9. Nowhere in his brief does
[Appellant] present any substantive argument relative to how the
denial of the continuance prejudiced him[.]
Commonwealth Brief at 7. The Commonwealth asserts a “review of the
transcript from both a hearing held on September 29, 2021[,] and a jury
selection on September 30, 2021[,] undermines [Appellant’s] argument.”
Id.; see also id. at 7-11 (citing relevant transcript excerpts). We agree.
As the trial court explained:
Attorney McQuillan testified[, prior to jury selection,] … that she
had reviewed the evidence with Appellant. N.T., 9/30/2021, pp.
10-13. Further, this [c]ourt provided Appellant with roughly an
hour and a half during the September 30 hearing, not including
discussions held in the days prior, to confer with his attorneys on
these issues. Id. at p. 9. Taking into account the representations
of his attorneys and discussions with Appellant, this [c]ourt
determined that a continuance would be inappropriate and denied
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Appellant’s request. Based on the record as outlined here, this
decision clearly does not constitute an abuse of discretion[.]
Trial Court Opinion, 5/5/22, at 4 (unnumbered) (citations modified).
The record and law support the trial court’s reasoning. Appellant fails
to explain how he was prejudiced by the denial of a continuance. Hansley,
24 A.3d at 418 (to prevail on a claim of error for the denial of a continuance,
appellant must establish prejudice). Appellant has failed to “show specifically
in what manner he was unable to prepare his defense or how he would have
prepared differently had he been given more time.” Broitman, 217 A.3d at
300. Further, the record confirms the trial court afforded Appellant adequate
time to prepare his defense, review discovery, and consult with counsel. See,
e.g., Trial Court Opinion, 5/5/22, at 4 (there were “discussions lasting several
hours with Appellant and his attorneys on both” September 29 & 30, 2021,
and “repeated explanations of Appellant’s options”); see also N.T., 9/30/21,
at 13 (Attorney McQuillan responding in the affirmative to the trial court asking
whether she “feel[s] comfortable” that all relevant information was explained
to Appellant prior to trial, and Appellant had adequate time to prepare a
defense). Appellant’s first issue does not merit relief.
In his second issue, Appellant claims the trial court improperly denied
his request to admit into evidence “the entire body camera video recorded by
[Chief Shilling], and only admitted the portion selected by the Commonwealth,
thereby depriving the jury of the complete depiction of the events underlying
[Appellant’s] criminal charges.” Appellant’s Brief at 10 (italics added; bold
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omitted); see also id. at 11 (“in the video was an interaction between
Appellant and [Chief Shilling] in which Appellant made many bizarre
statements as well as pleading for his life and the opportunity to care for his
young son.”). Appellant contends “the entire video may well have provided
the jury with insight into the Appellant’s state of mind relative to the intent
elements of aggravated assault.” Id. at 11. Appellant also cites Pa.R.E. 106,
which provides, “If a party introduces all or part of a writing or recorded
statement, an adverse party may require the introduction, at that time, of any
other part — or any other writing or recorded statement — that in fairness
ought to be considered at the same time.”). Appellant’s Brief at 10; see also
Commonwealth v. Raboin, 258 A.3d 412, 422 (Pa. 2021) (with respect to
Rule 106, the “adverse party carries the burden of demonstrating that the
remaining portion of the writing or recording is relevant.”).
The Commonwealth responds that Appellant’s request to play the
complete video “would have been improper to buttress the [defense’s]
opening statement with evidence that was not relevant.” Commonwealth Brief
at 12 (bold omitted); see also N.T., 10/18/21, at 29, 30, 33 (Attorney
McQuillan’s opening statement implicating Appellant’s alleged mental health
issues). The Commonwealth argues:
No medical doctor testified about [Appellant’s alleged mental
health] conditions, and no counselor or family member testified
about his mental health. There was absolutely zero evidence
placed in the record that would support the facts raised in the
opening given by the defense. Even if there were, there was no
effort to plead insanity, nor to argue that [Appellant] was not
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competent, nor that he acted in the heat of passion. There was
no material or logical relevance to his mental health, as it is not a
legitimate defense to the charges he faced at trial. … For this
reason, the trial court very appropriately barred the introduction
of [Appellant’s] paranoid ramblings that were made subsequent
to his arrest [in the video].
Commonwealth Brief at 13-14 (paragraph break omitted).
We are mindful of our standard of review:
When we review a trial court’s ruling on admission of evidence,
we must acknowledge that decisions on admissibility are within
the sound discretion of the trial court and will not be overturned
absent an abuse of discretion or misapplication of law. In addition,
for a ruling on evidence to constitute reversible error, it must have
been harmful or prejudicial to the complaining party.
Commonwealth v. Jackson, 2022 PA Super 156, *4 (Pa. Super. Sept. 13,
2022) (citation omitted).
The threshold inquiry with admission of evidence is whether
evidence is relevant. Commonwealth v. Collins, 585 Pa. 45,
888 A.2d 564, 577 (Pa. Super. 2005). Evidence is relevant if
“it has the tendency to make a fact more or less probable than it
would be without the evidence” and “the fact is of consequence in
determining the action.” Pa.R.E. 401(a)-(b). “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.”
Commonwealth v. Drumheller, 570 Pa. 117, 808 A.2d 893, 904
(Pa. Super. 2002). “All relevant evidence is admissible, except as
otherwise provided by law. Evidence that is not relevant is not
admissible.” Pa.R.E. 402.
Jackson, 2022 PA Super 156, **4-5.
Instantly, the trial court explained its ruling regarding the video as
follows:
[The trial c]ourt determined that a portion of the [video] … ought
to be excluded from evidence because it would tend to mislead
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the jury. N.T.[,] 10/18/2021, pp. 94-96. The excluded portion of
the video depicted part of Chief Shilling’s handcuffing of Appellant
and an approximately one-minute-long period after, during which
Appellant made a series of bizarre statements. Id. at 95. The
Commonwealth objected to the introduction of this portion of the
[video] … because, in her opening argument, Attorney McQuillan
made reference to Appellant’s alleged history of mental illness.
Appellant’s attorney did not, at any time, call a witness or
otherwise lay a foundation for Appellant’s alleged mental
illness and stated to this [c]ourt that she had no intention
to do so. Id. at 96. The [c]ourt denied this request, expressing
concern that showing the footage would “allow[] the jury to
make inferences based upon representations made in the
opening that were not evidence.” Id. This concern clearly
falls under the aegis of “misleading the jury” as provided in
[Pennsylvania] Rule of Evidence 403 [(“The court may exclude
relevant evidence if its probative value is outweighed by a
danger of one of more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” (emphasis
added))].
Trial Court Opinion, 5/5/22, at 4-5 (unnumbered) (emphasis added); see also
N.T., 10/18/21, at 96 (trial court finding the excluded portion of the video
“goes beyond not being relevant as being able to be misconstrued with
evidence not of record.”).
Upon review, we discern no error or abuse of discretion by the trial
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court. The excluded portion of the video bore no relationship to the evidence
presented at trial,5 and could serve to confuse or mislead the jury. See, e.g.,
Commonwealth v. Byrd, 598 A.2d 1011, 1015 (Pa. Super. 1991) (trial court
did not err in excluding irrelevant video evidence proffered by defendant that
could confuse jury); cf. Commonwealth v. Cole, 135 A.3d 191, 195-96 (Pa.
Super. 2016) (trial court did not err in admitting video evidence and
accompanying narration by police officer, where evidence was relevant, not
unduly prejudicial, and would not mislead the jury).6 Appellant’s second issue
does not merit relief.
Judgment of sentence affirmed.
____________________________________________
5Arguments by counsel “are not evidence.” Commonwealth v. Moore, 263
A.3d 1193, 1206 (Pa. Super. 2021) (citation omitted).
6 Even if, arguendo, the trial court erred, such error was harmless. “[A]n
erroneous ruling by a trial court on an evidentiary issue does not require us
to grant relief where the error is harmless.” Commonwealth v. Northrip,
945 A.2d 198, 203 (Pa. Super. 2008) (citation omitted). “An error may be
deemed harmless, inter alia, where the properly admitted and uncontradicted
evidence of guilt was so overwhelming and the prejudicial effect of the error
was so insignificant by comparison that the error could not have contributed
to the verdict.” Commonwealth v. Moore, 937 A.2d 1062, 1073 (Pa. 2007);
see also Jackson, 2022 PA Super 156, *4 (“for a ruling on evidence to
constitute reversible error, it must have been harmful or prejudicial to the
complaining party.”). Our review discloses that the evidence overwhelmingly
established Appellant’s guilt, and thus any prejudice from exclusion of the
video was insignificant.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2022
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