Opinion
J-A17009-17 No. 1037 EDA 2016
08-31-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. JACK HYNSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence March 3, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001272-2015 BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Jack Hynson, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his bench trial conviction for escape. We affirm.
The trial court opinion sets for the relevant facts of this case as follows:
On March 23, 2007, [Appellant] pled guilty to aggravated assault and possessing instruments of crime [("PIC")] and, on June 14, 2007, was sentenced to 7½ to 15 years of incarceration on the aggravated assault charge and 2½ to 5 years of incarceration on the PIC charge, to run concurrently. [Appellant] was paroled on May 27, 2014....(Trial Court Opinion, filed September 27, 2016, at 1). Appellant was released on parole to the Kintock-Erie Parole Violation Center ("KPVC"). On September 9, 2014, Appellant absconded from KPVC. Appellant turned himself in on December 1, 2014, and was subsequently detained as a parole violator in the parole violator section of KPVC.
The trial court opinion continues:
On December 15, 2014, at approximately 1:10 p.m., [Appellant] was escorted to Episcopal Hospital ("Episcopal") on an approved emergency medical pass. Upon arrival, a paramedic opened the ambulance door and [Appellant] ran from the ambulance and Michael Marrero, the [KPVC] resident supervisor who had accompanied him. Mr. Marrero instructed [Appellant] to stop several times, but he failed to comply. Mr. Marrero never gave [Appellant] permission to leave his custody.( Id. at 1-2) (internal citations to record omitted). Police arrested Appellant on December 23, 2014. The Commonwealth charged Appellant with escape.
On October 22, 2015, Appellant proceeded to a bench trial. The trial court opinion continues:
The [c]ourt colloquied [Appellant] on whether he wished to testify at trial. After stating that he had decided to testify, on direct examination [Appellant] testified solely about a document containing the conditions governing his parole and re-parole. The Commonwealth then cross-examined [Appellant] on the events that took place on December 15, 2014, the day of his escape. [Appellant] testified that on December 15, 2014, he was transported to Episcopal in an ambulance with Mr. Marrero escorting him. [Appellant] was escorted to the hospital for chest pains that he had been experiencing that day and the day before. Upon arriving at Episcopal, [Appellant] informed Mr. Marrero that he wanted to go to Temple Hospital, but Mr. Marrero refused. [Appellant] testified that Temple Hospital had his records since he had been there the day before, also because of his chest pains. He further testified that the
only hospitals that had records about this condition were Temple Hospital and Aria Hospital. [Appellant] proceeded to walk from Episcopal to Temple Hospital after Mr. Marrero told him he was to be treated at Episcopal. [Appellant] testified that, after walking to Temple Hospital, he called [KPVC] and was informed that he was in escape status and a warrant was going to be issued for his arrest. [Appellant] never attempted to return to [KPVC]. Despite knowing a warrant for his arrest was going to be issued, [Appellant] never turned himself in to the police.( Id. at 2-3) (internal citations to record omitted)
Mr. Marrero testified at trial on behalf of the Commonwealth. Mr. Marrero testified that he was a resident supervisor at KPVC on December 15, 2014. Mr. Marrero explained that, generally, KPVC permitted a resident to leave the facility unsupervised via ambulance to receive medical attention. Mr. Marrero added that a resident must report back to KPVC after receiving treatment. Mr. Marrero further explained that when a parole violator requires medical attention, a KPVC supervisor escorts the parole violator to the hospital, remains with the parole violator throughout treatment at the hospital, and transports the parole violator back to KPVC. Mr. Marrero admitted he had no independent recollection of the incident, but he recalled Appellant and the incident after he reviewed the Emergency Occurrence Report he had drafted to document the December 15, 2014 incident. (N.T. Trial, 11/24/15, at 35-43).
Jason McClean, a Department of Corrections employee, also testified on behalf of the Commonwealth. Mr. McClean testified that he is a contract facility coordinator for the Department of Corrections. Mr. McClean explained he is responsible for maintaining the records for contract facilities in Philadelphia that house parole violators and parolees, such as KPVC. Mr. McClean stated he maintains records that show inmate transfers from facility to facility, as well as inmates' violations, dates of arrival, participation in programs, and medical and legal status. Mr. McClean testified the records he maintains are created by someone with knowledge of the records' content at or near the time they were created. Mr. McClean said he is a custodian of inmate records for parolee and parole violation centers in Philadelphia. Mr. McClean explained Mr. Marrero's Extraordinary Occurrence Report indicates that as of December 15, 2014, Appellant was a parole violator. (N.T. Trial, 10/22/15, at 9-49).
Mr. McClean also testified that, in general, a Pennsylvania Board of Probation and Parole Checklist ("Checklist") documents the status of a parolee, including the terms of parole a parolee violated and where a parolee was detained. Mr. McClean stated a member of the Central Referral Unit at the Department of Corrections creates the Checklist after a supervising agent reports a violation. Mr. McClean explained Appellant's Checklist specifically lists Appellant as an "absconder," and places Appellant at KPVC. Mr. McClean also testified that a residents' confinement within the parole violator section of KPVC signifies the resident had violated parole. ( Id.)
On November 24, 2015, the court convicted Appellant of escape. The court sentenced Appellant, on March 3, 2016, to eleven and a half (11½) to twenty-three (23) months' incarceration, plus three (3) years' probation. Appellant timely filed a notice of appeal on March 31, 2016. On April 4, 2016, the court ordered Appellant to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant complied on August 4, 2016.
In its Rule 1925(b) order, the court directed Appellant to file a Rule 1925(b) statement within 21 days from the entry of the court's Rule 1925(b) order or 21 days after the trial transcripts became available, whichever occurs later. In his Rule 1925(b) statement, Appellant provided that he received the trial transcripts on July 21, 2016. --------
Appellant raises the following issues for our review:
[WHETHER] THE EVIDENCE WAS INSUFFICIENT TO PROVE [APPELLANT] GUILTY BEYOND A REASONABLE DOUBT OF ESCAPE WHERE THE EVIDENCE WAS INSUFFICIENT TO PROVE APPELLANT WAS IN OFFICIAL DETENTION?(Appellant's Brief at 3).
[WHETHER] THE [TRIAL] COURT ABUSED ITS DISCRETION AND VIOLATE[D] APPELLANT'S RIGHT TO CONFRONT WITNESSES AGAINST HIM UNDER THE STATE AND FEDERAL CONSTITUTIONS BY ALLOWING THE ADMISSION OF TESTIMONIAL AND UNRELIABLE DOCUMENTARY EVIDENCE TO PROVE AN ELEMENT OF THE OFFENSE?
In his first issue, Appellant argues the evidence at trial was insufficient to sustain a conviction for escape. Specifically, Appellant contends the Commonwealth failed to prove Appellant was in "official detention" at KPVC on December 15, 2014. Appellant avers the Commonwealth presented inconclusive evidence that Appellant was detained as a parole violator at the time of the incident. Appellant insists he did not violate the escape statute, because the statute expressly excludes from the meaning of "official detention" those individuals who are on parole supervision. Appellant asserts Mr. Marrero testified he had no independent recollection of Appellant or the status of his parole at the time of the incident. Appellant concludes he is entitled to a new trial or to have his conviction reversed. We disagree.
Preliminarily, an argument that the fact-finder should have discredited a witness' testimony goes to the weight of the evidence, not the sufficiency of the evidence. Commonwealth v. W.H.M., 932 A.2d 155, 159-60 (Pa.Super. 2007). See also Commonwealth v. Lewis , 45 A.3d 405, 409 (Pa.Super. 2012) (reiterating that sufficiency of evidence review does not include assessment of credibility of witness' testimony; if challenge requires court to review credibility of witness' testimony, claim is actually weight of evidence challenge). "A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a post-sentence motion." Pa.R.Crim.P. 607(A). A weight claim must be presented to the trial court while it exercises jurisdiction over a matter because "appellate review of a weight claim is a review of the exercise of discretion, not the underlying question of whether the verdict was against the weight of the evidence." Commonwealth v. Burkett , 830 A.2d 1034, 1037 (Pa.Super. 2003). Failure to raise a weight of the evidence claim in the trial court will result in waiver of the issue on appeal, regardless of whether the appellant raises the issue on appeal or the trial court addresses the issue in its Rule 1925(a) opinion. Commonwealth v. Sherwood , 603 Pa. 92, 110, 982 A.2d 483, 494 (2009), cert. denied, 559 U.S. 1111, 130 S.Ct. 2415, 176 L.Ed.2d 932 (2010).
Additionally, issues not raised in a Rule 1925 concise statement of errors are deemed waived. Commonwealth v. Castillo , 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (quoting Commonwealth v. Lord , 553 Pa. 415, 420, 719 A.2d 306, 309 (1998)). "Rule 1925(b) waivers may be raised by the appellate court sua sponte." Commonwealth v . Hill , 609 Pa. 410, 427, 16 A.3d 484, 494 (2011).
When examining a challenge to the sufficiency of evidence:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually
received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Commonwealth v. Hansley , 24 A.3d 410, 416 (Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v. Jones , 874 A.2d 108, 120-21 (Pa.Super. 2005)).
Section 5121 of the Crimes Code defines escape, in pertinent part, as follows:
§ 5121. Escape18 Pa.C.S.A. § 5121(a), (e). "Official detention" under Section 5121 includes "any...detention for law enforcement purposes" where "the police have restrained the liberty of a person by show of authority or physical force." Commonwealth v. Santana , 959 A.2d 450, 452 (Pa.Super. 2008), appeal denied, 605 Pa. 683, 989 A.2d 916 (2010) (quoting Commonwealth v. Stewart , 648 A.2d 797, 798 (Pa.Super. 1994)). An individual is in "official detention" if, under the totality of the circumstances, a reasonable person would not believe he is free to leave. Santana , supra at 452.
(a) Escape.—A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.
* * *
(e) Definition.—As used in this section the phrase "official detention" means arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but the phrase does not include supervision of probation or parole, or constraint incidental to release on bail.
Although Section 5121 exempts general parole supervision from the definition of "official detention," our Supreme Court has construed "official detention" broadly to mean the restraint of a detainee's "liberty to come and go as [the detainee] pleases," regardless of the facility in which the detainee was confined. Commonwealth v. Wegley , 574 Pa. 190, 197, 829 A.2d 1148, 1152 (2003). This Court has held that an individual detained as a parole violator is under "official detention":
Once a parolee is arrested and detained for failing to report, and acknowledges he is essentially in prerelease status, he is in official detention for purposes of [S]ection 5121, just as any other person placed in custody is. As such, he can hold no reasonable expectation that he retains the liberties and freedoms customary to a person operating under "supervision of parole."Commonwealth v. Maldonado , 966 A.2d 1144, 1147 (Pa.Super. 2009), appeal denied, 605 Pa. 672, 989 A.2d 8 (2010) (determining parole violators detained in official housing facility from which they may not leave without permission pending parole violation adjudication are under "official detention"). See also Commonwealth v. Williams , 153 A.3d 372, 379 (Pa.Super. 2016) (affirming judgment of sentence for escape conviction, where parole violator fled from his supervisor after supervisor escorted parolee from parole violation center to hospital in ambulance).
Instantly, as of December 15, 2014, Appellant was a parole violator detained in KPVC and resided in the parole violator section of KPVC. Therefore, Appellant was under "official detention" for purposes of the escape statute. See Wegley , supra ; Maldonado , supra. On December 15, 2014, Mr. Marrero, a KPVC resident supervisor, escorted Appellant to the hospital in an ambulance. Upon arriving at the hospital, Appellant fled. During Appellant's flight, Mr. Marrero told Appellant he could not leave and commanded him to return. Appellant, however, continued to flee and failed to return to KPVC. Based on the foregoing, the Commonwealth presented sufficient evidence to allow the court to find Appellant guilty of escape. See Hanlsey , supra ; Williams , supra. To the extent part of Appellant's argument actually questions the credit the court gave to Mr. Marrero's testimony, Appellant's challenge is to the weight of the evidence, not the sufficiency of the evidence. See W.H.M., supra ; Wilson , supra. The record does not indicate Appellant raised this weight claim orally prior to sentencing, by written motion prior to sentencing, or in a timely filed post-sentence motion. See Pa.R.Crim.P. 607(A). Further, Appellant failed to include in his Rule 1925(b) statement a general challenge to the weight of the evidence and a specific challenge to the credibility of Mr. Marrero's trial testimony. See Castillo , supra. Thus, any challenge on appeal to the weight of the evidence is waived. See Sherwood , supra ; Castillo , supra. Accordingly, Appellant's first issue merits no relief.
Next, Appellant complains the admission at trial of the "Offender Placement Checklist" from the Pennsylvania Board of Probation and Parole violated his constitutional right to confront witnesses against him. Appellant submits the document was testimonial hearsay, based on its purpose, and admitted at trial as substantive evidence. Appellant maintains the document was prepared to prove a fact that could be used in criminal prosecution. Appellant insists admission of the document was error because the person who prepared the document did not testify at trial; instead, the custodian of records was permitted to interpret the notations on the checklist indicating that Appellant was a parole violator. Appellant argues the custodian of records served as a constitutionally impermissible surrogate to testify about Appellant's parole violator and custody status. Appellant concludes he is entitled to a new trial or to have his conviction reversed on this ground. We disagree.
The standard of review for the admission of evidence is:
Admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. Admissibility depends on relevance and probative value. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact.
Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown
by the evidence or the record, discretion is abused.Commonwealth v. Levanduski , 907 A.2d 3, 13-14 (Pa.Super. 2006) (en banc), appeal denied, 591 Pa. 711, 919 A.2d 955 (2007) (internal citations omitted).
Pennsylvania Rule of Evidence 801 defines hearsay as follows:
Rule 801. Definitions That Apply to this ArticlePa.R.E. 801.
(a) Statement. "Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. "Declarant" means the person who made the statement.
(c) Hearsay. "Hearsay" means a statement that
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Abbe F. Fletman, we conclude Appellant's second issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of Appellant's second issue. ( See Trial Court Opinion, filed September 27, 2016, at 9-12) (finding: checklist met business record exception to hearsay rule; Jason McClean, Department of Corrections, testified he maintains records for facilities which house parole violators; Mr. McClean specifically stated he is custodian of records, including checklists, which are created for administrative purposes at or near time of recorded incidents, such as inmate transfers from facility to facility, violations, dates of arrival, programs, and medical and legal status; Mr. McClean had sufficient knowledge about how checklists are made and kept, so he could properly authenticate Appellant's checklist as business record; whether business record is subject to Confrontation Clause depends on why record was originally created; Mr. McClean testified that checklist is generated to ensure parolee's proper placement and treatment needs; Appellant's checklist was not prepared to establish any fact relevant to criminal prosecution; rather, reason for checklist was to serve ongoing administrative purpose; as qualified business record created and maintained for neutral purpose, content of checklist was not testimonial evidence; admission of checklist did not violate Appellant's right to confront witnesses). The record supports the trial court's rationale. Therefore, as to Appellant's second issue, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/31/2017
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