J-S19017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICKELL BYNUM,

                            Appellant                  No. 949 MDA 2016


          Appeal from the Judgment of Sentence Entered May 11, 2016
               In the Court of Common Pleas of Lancaster County
            Civil Division at No(s): CI-14-10545 (PFA) 16-0057 (ICC)

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED MAY 16, 2017

        Appellant, Mickell Bynum, appeals from the judgment of sentence of

three months’ imprisonment, followed by three months’ probation, imposed

after a non-jury trial at which he was found guilty of one count of indirect

criminal contempt (ICC) for violating a protection from abuse (PFA) order.

Appellant challenges the court’s admission of certain evidence, as well as the

sufficiency of the evidence to sustain his conviction. After careful review, we

affirm.

        The facts of this case were summarized by the trial court as follows:

              On February 2, 2015[,] this court issued a [PFA] [o]rder
        against [Appellant] protecting Michelle Melendez (“Ms.
        Melendez”).    On April 19, 2016, Lancaster County-wide
        Emergency Communications Center received a phone call from a
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*
    Former Justice specially assigned to the Superior Court.
J-S19017-17


       woman, identifying herself as Michelle Melendez, requesting
       police assistance at the corner of Orange Street and Franklin
       Street in Lancaster City.        Ms. Melendez’s ex-boyfriend,
       [Appellant], had entered the barbershop where she was, pulled
       her in front of a group of people, and taken her shoes. During
       the 9-1-1 call, Ms. Melendez can be heard yelling at Mr. Bynum
       as she answers the operator’s questions. The call lasted a
       duration of 1 minute 42 seconds before Ms. Melendez was cut
       off.

              The police responded to the scene, but by the time they
       arrived Mr. Bynum had left the area. [Lancaster City Police]
       Officer [Juanita] Martinez-Bender, who was employed with the
       Lancaster City Police at the time of the incident, testified at the
       ICC hearing that on the day of the incident she responded to a
       call from Lancaster County Communications that a PFA violation
       was in progress and that the subject in violation had been
       identified as [Appellant].

              At the hearing, Officer Martinez-Bender testified that when
       she arrived at the scene, her supervisor directed her to speak
       with Ms. Melendez because [Appellant] had already left the
       scene.     Officer Martinez-Bender described Ms. Melendez as
       visibly upset, shaking, and talking nervously and loudly. The
       Officer testified that after speaking with Ms. Melendez she
       confirmed that there was a valid PFA against [Appellant]
       prohibiting contact between [Appellant] and Ms. Melendez.
       Officer Martinez-Bender further testified that after an initial foot
       chase, two other officers were able to make contact with
       [Appellant] and bring him into the police station.

             Ms. Melendez did not attend the ICC hearing, nor did she
       offer any testimony or evidence. Allegedly, she was unable to
       attend any of the scheduled hearings because she regularly took
       her special needs child to Hershey Medical Center for
       appointments. No documentation of these appointments was
       submitted to the court.

Trial Court Opinion (TCO), 8/17/16, at 2-3.

       Based on this evidence, the court convicted Appellant of one count of

ICC.   That same day (May 11, 2016), the court sentenced him to three



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months’ incarceration, followed by three months’ probation. Appellant filed

a timely notice of appeal, and he also timely complied with the trial court’s

order to file a Pa.R.A.P. 1925(b) statement. The court issued a Rule 1925(a)

opinion on August 17, 2016.

       Herein, Appellant presents two issues for our review:

       I. Did the court err in admitting the 9-1-1 call purportedly made
       by Michelle Melendez, where the primary purpose of the call was
       testimonial?

       II. Was the evidence presented by the Commonwealth
       insufficient to sustain [Appellant’s] conviction for [ICC], where
       the sole evidence that [Appellant] had contact with [Ms.
       Melendez] in [violation of] a protective order against him was a
       9-1-1 call from a woman whose voice was not identified by any
       witness or through circumstantial evidence?

Appellant’s Brief at 5.

       Appellant first challenges the trial court’s admission of a recording of

Michelle Melendez’s 911 call.1 To begin,

       [t]he standard of review employed when faced with a challenge
       to the trial court's decision as to whether or not to admit
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1
  Curiously, Appellant asserts that he waived this claim for our review by not
raising it in his Rule 1925(b) statement. We disagree. In that statement,
Appellant declared: “Admission of this 9-1-1 call under the instant
circumstances was a violation of [Appellant’s] due process rights pursuant to
Article I, Section One of the Constitution of the Commonwealth of
Pennsylvania, and the Fifth and Fourteenth Amendments to the United
States Constitution.” Rule 1925(b) Statement, 7/11/16, at 2 (unnumbered).
While we recognize that Appellant stated this claim within an issue
challenging the sufficiency of the evidence, the trial court understood that he
was contesting the admission of the 911 recording, and it addressed that
claim in its opinion. See TCO at 4-5. Accordingly, we consider Appellant’s
first issue adequately preserved for our review.



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      evidence is well settled. Questions concerning the admissibility
      of evidence lie within the sound discretion of the trial court, and
      a reviewing court will not reverse the trial court’s decision absent
      a clear abuse of discretion. Commonwealth v. Hunzer, 868
      A.2d 498 (Pa. Super. 2005). Abuse of discretion is not merely an
      error of judgment, but rather where the judgment is manifestly
      unreasonable or where the law is not applied or where the record
      shows that the action is a result of partiality, prejudice, bias or ill
      will. Id.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citation

omitted).

      In this case, Appellant argues that the court’s admission of Melendez’s

recorded 911 call was an abuse of discretion because Melendez’s statements

during that call were testimonial, and Appellant was not afforded his

Confrontation Clause right of cross-examining her. The trial court ruled that

Melendez’s statements were nontestimonial and, therefore, they were not

subject to the Confrontation Clause. After careful review, we agree with the

trial court.

      “The Confrontation Clause of the Sixth Amendment provides: In all

criminal prosecutions, the accused shall enjoy the right … to be confronted

with the witnesses against him.” Davis v. Washington, 547 U.S. 813, 821

(2006) (internal quotation marks omitted). In Crawford v. Washington,

541 U.S. 36 (2004), the United States Supreme Court “held that this

provision bars ‘admission of testimonial statements of a witness who did

not appear at trial unless he was unavailable to testify, and the defendant

had had a prior opportunity for cross-examination.’” Davis, 547 U.S. at 821

(quoting Crawford, 541 U.S. at 53-54) (emphasis added). Later, the Davis


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Court more specifically defined what types of statements are testimonial,

versus nontestimonial:

     Statements are nontestimonial when made in the course of
     police interrogation under circumstances objectively indicating
     that the primary purpose of the interrogation is to enable police
     assistance to meet an ongoing emergency. They are testimonial
     when the circumstances objectively indicate that there is no such
     ongoing emergency, and that the primary purpose of the
     interrogation is to establish or prove past events potentially
     relevant to later criminal prosecution.

Davis, 547 U.S. at 821 (footnote omitted).

     The Davis Court then went on to examine whether statements made

by Michelle McCottry during a call to a 911 emergency operator were

testimonial. The Court described McCottry’s statements during that call, and

what police observed when they arrived at her location, as follows:

        “911 Operator: Hello.

        “Complainant: Hello.

        “911 Operator: What's going on?

        “Complainant: He's here jumpin' on me again.

        “911 Operator: Okay. Listen to me carefully. Are you in a
        house or an apartment?

        “Complainant: I'm in a house.

        “911 Operator: Are there any weapons?

        “Complainant: No. He's usin' his fists.

        “911 Operator: Okay. Has he been drinking?

        “Complainant: No.

        “911 Operator: Okay, sweetie. I've got help started. Stay
        on the line with me, okay?


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          “Complainant: I'm on the line.

          “911 Operator: Listen to me carefully. Do you know his
          last name?

          “Complainant: It's Davis.

          “911 Operator: Davis? Okay, what's his first name?

          “Complainant: Adrian[.]

          “911 Operator: What is it?

          “Complainant: Adrian.

          “911 Operator: Adrian?

          “Complainant: Yeah.

          “911 Operator: Okay. What's his middle initial?

          “Complainant: Martell. He's runnin' now.”

     As the conversation continued, the operator learned that Davis
     had “just r[un] out the door” after hitting McCottry, and that he
     was leaving in a car with someone else. McCottry started talking,
     but the operator cut her off, saying, “Stop talking and answer
     my questions.” She then gathered more information about Davis
     (including his birthday), and learned that Davis had told
     McCottry that his purpose in coming to the house was “to get his
     stuff,” since McCottry was moving. McCottry described the
     context of the assault, after which the operator told her that the
     police were on their way. “They're gonna check the area for him
     first,” the operator said, “and then they're gonna come talk to
     you.”

     The police arrived within four minutes of the 911 call          and
     observed McCottry's shaken state, the “fresh injuries on        her
     forearm and her face,” and her “frantic efforts to gather       her
     belongings and her children so that they could leave            the
     residence.”

Davis, 547 U.S. at 817–18 (citations to the record omitted).

     In    objectively   considering   whether   McCottry’s   statements   were

testimonial, the Davis Court initially noted that “at least the initial



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interrogation conducted in connection with a 911 call[] is ordinarily not

designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe

current circumstances requiring police assistance.” Id. at 827. The Court

then held that McCottry’s statements in the 911 call were nontestimonial,

offering three reasons for that conclusion.    First, the Court stressed that

McCottry “was speaking about events as they were actually happening,

rather than ‘describ[ing] past events[.]’” Id. (citation omitted; emphasis in

original).   Second, the Court found that “any reasonable listener would

recognize that McCottry … was facing an ongoing emergency[,]” and that her

“call was plainly a call for help against bona fide physical threat.” Id. The

Court further noted that, unlike calmly answering a series of questions posed

by an interrogator, “McCottry’s frantic answers were provided over the

phone, in an environment that was not tranquil, or even (as far as any

reasonable 911 operator could make out) safe.” Id. Third, the Davis Court

declared that,

      the nature of what was asked and answered in Davis, again
      viewed objectively, was such that the elicited statements were
      necessary to be able to resolve the present emergency, rather
      than simply to learn … what had happened in the past. That is
      true even of the operator’s effort to establish the identity of the
      assailant, so that the dispatched officers might know whether
      they would be encountering a violent felon.

Id. (emphasis in original). Based on all of these circumstances, the Davis

Court concluded that the “primary purpose” of McCottry’s interrogation “was

to enable police assistance to meet an ongoing emergency. She simply was

not acting as a witness; she was not testifying.”    Id. at 828 (emphasis in

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J-S19017-17



original).   Accordingly, McCottry’s          statements   in the    911 call were

nontestimonial    and   not    subject   to    the   protections   afforded   by   the

Confrontation Clause.

      The circumstances of the present case are similar enough to Davis to

convince us that Melendez’s statements during the 911 call were also

nontestimonial.   The entirety of Melendez’s and the operator’s statements

during the 911 call were as follows:

      Operator: Lancaster County 911. Do you need police, fire, [or]
      ambulance?

      Victim: I need police.

      Operator: Ok. Where do you need the police?

      Victim: I’m right here on Orange and Franklin Streets.

      Operator: Orange where?

      Victim: And Franklin.

      Operator: Okay.    And what city, township, or borough are you
      in?

      Victim: Lancaster City.

      Operator: Okay. And what’s going on there?

      Victim: Umm. I have a PFA on my ex-boyfriend and he just took
      my shoes off.

      Operator: Okay, he took your shoes off?

      Victim: Yes.

      Operator: So he’s there with you?

      Victim: He … left in his car.

      Operator: So what, he come [sic] up to you on the street and
      then what?



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J-S19017-17


     Victim: [In] the barbershop. Like I’m in a barbershop [and] he
     pulled me in front of all these people.

     Operator: Okay, so you’re in the barbershop there on the
     corner?

     Victim: Yeah, I’m barefoot right now.

     Operator: Okay, so you were there and then he came in?

     Victim: He’s right here again on the … he’s right here.

     Operator: Okay. Alright, what’s his name?

     [pause]

     Operator: What’s his name?

     Victim: Mikell Bynum.

     Operator: Mikell?

     Victim: Yes. [shouting to Appellant] I did it already! You’re not
     gonna [inaudible] keep doing this shit to me for eight years, you
     mother fucker! You’re going the fuck to jail.

     Operator: Okay, do you know how to spell his last name?

     Victim: Bynum. Bynum.

     Operator: Okay. And what’s your name?

     Victim: Michelle.

     Operator: And what’s your last name, Michelle?

     Victim: Melendez.

     Operator: Okay. And I have officers being dispatched to you
     now, okay? What’s your cell phone number you’re calling from?

Commonwealth’s Exhibit 1. At that point, the call ended without an answer

from Melendez.

     Based on this recording, we conclude that, as in Davis, Melendez

called 911 to request police assistance during an ongoing emergency. We

recognize that Melendez stated, at the outset of the call, that Appellant was

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no longer at the scene. However, that does not establish, from an objective

perspective, that there was no ‘ongoing emergency.’ Melendez made it clear

to the operator that Appellant had ‘just’ been in contact with her, pulling her

from a barbershop, taking her shoes, and leaving her stranded and barefoot

on a public street. Moreover, Melendez described to the operator the events

as they were occurring, including Appellant’s return to the scene.

      We also reject Appellant’s assertion that Melendez’s screaming at him

that he was going to jail revealed that her primary purpose in calling 911

was to provide testimonial statements to police.           Notably, Melendez

spontaneously made that statement to Appellant; it was not a response to

any question posed by the 911 operator. Moreover, Melendez’s screaming

this to Appellant indicates, to any reasonable listener, that she was upset

and frantic, and that she was speaking to the operator during the course of

an ongoing emergency, which was made more alarming by Appellant’s

return to the scene. Our conclusion that Melendez’s statements were made

for the primary purpose of getting help is also supported by the fact that

Officer Martinez-Bender testified that when she arrived at the scene,

Melendez was “visibly upset” and was “shaking, talking nervously, [and]

talking real[ly] loud.” N.T. Trial, 5/11/16, at 9.

      Furthermore, assessing the questions asked by the operator during the

course of Melendez’s 911 call makes it apparent that the operator was

attempting to resolve the conflict, not simply trying to learn about what had

happened.    For instance, the operator asked questions to ascertain where

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Melendez was located, what sort of danger she was facing, and who was

posing that danger to her.          In addition, after being told by Melendez that

Appellant had returned to the scene, the operator asked for Appellant’s first

and last name, presumably to ensure that the officers dispatched to the

scene “might know whether they would be encountering a violent felon.”

Davis, 547 U.S. at 827 (citations omitted).

       For all of these reasons, we conclude that, as in Davis, Melendez’s

statements during the 911 call were made during the course of an ongoing

emergency,      and     for   the    purpose       of   obtaining   police   assistance.

Consequently, the trial court did not err in finding that her statements were

not subject to the Confrontation Clause.2

       Next, Appellant challenges the sufficiency of the evidence to sustain

his ICC conviction, arguing that the Commonwealth failed to ‘authenticate’

that the person who made the 911 call was Michelle Melendez and, thus,

there was no proof that Appellant “had violated the PFA [o]rder by having

contact with [] Melendez.”             Appellant’s Brief at 16-17.3          Appellant’s

argument is unconvincing. Preliminarily,

____________________________________________


2
  We point out that Appellant does not argue that Melendez’s statements in
the 911 call were inadmissible hearsay. Accordingly, we do not address that
issue.
3
  To the extent that Appellant’s reference to the ‘authentication’ of the 911
call suggests he is challenging the admission of that evidence, his argument
is waived. Appellant at no point objected to the authenticity of the 911
(Footnote Continued Next Page)


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J-S19017-17


      [t]he 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
      that of 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. Lambert, 795 A.2d 1010, 1014 (Pa. Super. 2002)

(citations and internal quotation marks omitted).

      Here, in the recording of the 911 call, the caller identified herself as

Michelle Melendez.        She stated that she had a PFA order against her ‘ex-

boyfriend,’ who just pulled her from a barbershop and took her shoes. She

gave Appellant’s name when the operator asked who did those things to her.

Additionally, Officer Martinez-Bender testified that she received the report

that “a Michelle Melendez … had called in” to 911.       N.T. Trial at 8.   The

                       _______________________
(Footnote Continued)

recording at trial; therefore, he cannot raise that claim for the first time on
appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”).




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officer responded to the location provided by the 911 caller and encountered

a “visibly upset” woman named Michelle Melendez. Id. at 9. Based on the

information provided to her by Melendez, Officer Martinez-Bender “checked

to see if there was a valid PFA” and confirmed that there was, with the

“named parties on that PFA” being “Michelle Melendez and Mikell Bynum.”

Id. at 10. We conclude that this circumstantial evidence was sufficient to

prove that the 911 caller was the same Michelle Melendez who had a valid

PFA order against Appellant at the time of the call.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/2017




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