J-S35018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

TYREE OSCAR YOUNG

                            Appellant                No. 1570 WDA 2016


             Appeal from the Judgment of Sentence April 15, 2016
               in the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0000832-2016


BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                              FILED JULY 19, 2017

       Appellant, Tyree Oscar Young, appeals from the judgment of sentence

of ten to twenty years of incarceration, imposed April 16, 2016, following a

jury trial resulting in his conviction for two counts of persons not to possess

a firearm.1 We affirm.

       On May 27, 2015, at approximately 5:00 p.m., Detectives Brandon

Rourke and Michael Catanzaro of the Wilkinsburg Police Department were

returning from a call, both driving, separately, on Swissvale Avenue in

Wilkinsburg, Pennsylvania.         See Notes of Testimony (N.T.), 1/25/16 to

1/25/16, at 20-21, 43-44. Detective Rourke passed a gold Ford Taurus and

____________________________________________


*
 Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S. § 6105(a)(1). Appellant was acquitted of a third count of
persons not to possess a firearm.
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recognized the driver as Appellant.2              Id. at 44-46.    Detective Rourke

radioed Detective Catanzaro, described the Taurus, and asked him to

effectuate a traffic stop. Id. at 21, 46.

       After Detective Catanzaro turned on his lights and sirens, a car chase

ensued and eventually ended when the Taurus crashing while attempting to

make a turn. Id. at 22-24, 46. Appellant and Justice McCullem3 escaped

the vehicle and fled on foot; Appellant discarded an item between two

nearby houses. Id. at 24-26, 46-47. When Detective Catanzaro attempted

to give chase, he was sprayed with hot fluid from the radiator hose of the

Taurus. Id. at 25-26. Detective Rourke joined the pursuit and was able to

stop Mr. McCullem; however, Appellant escaped. Id. at 26, 47.

       Officers from a neighboring borough responded to the scene and

secured the car. Id. at 34-36. Two loaded firearms were visible inside, one

between the driver’s seat and passenger seat, and one in the middle of the

front-seat floor. Id. at 36-39, 47-49. A further search of the car revealed

United    States    currency,    a   cell   phone,   and   Appellant’s   Pennsylvania

identification card in driver’s side door pocket. Id. at 36-39, 47-49, 53. A
____________________________________________


2
  The trial court opinion indicates that Detective Rourke had filed charges
against Appellant the week before, and that Appellant was wanted on an
outstanding warrant. See Trial Court Opinion, 1/12/17, at 2. However, the
jury was informed only that Detective Rourke had a “valid reason” to stop
Appellant. Id. at 22, 43.
3
  The trial court’s opinion refers to Mr. McCullem as “Justice McCullum;”
however, the notes of testimony use the former spelling.



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third firearm was found at the rear of a property where the chase occurred.

Id. at 38-39, 51.

        Appellant   and    Mr.   McCullem      were   arrested   and   charged   with

possession of a firearm prohibited and persons not to possess a firearm.4

Appellant filed a pretrial motion to suppress; following a hearing, that

motion was denied. The matter proceeded to trial by jury. At the beginning

of jury selection, Mr. McCullem entered a guilty plea and was sentenced to a

term of one to two years of incarceration. Id. at 3; see also TCO at 1-3.

Appellant’s trial began four days later.         See TCO at 1-3.       Appellant was

convicted of two counts of persons not to possess a firearm and acquitted of

a third count of the same crime.           Appellant filed a post-sentence motion,

which was denied.

        Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of matters complained of on appeal.              The trial court issued a

responsive opinion.

        On appeal, Appellant raises two questions for our review:

        1. Whether the trial court abused its discretion when it permitted
        the witness to invoke the Fifth Amendment privilege and refused
        to testify.

        2. Whether the trial court abused its discretion when it refused
        to instruct the jury on mere presence[.]

Appellant’s Brief at 3.
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4
    18 Pa.C.S. § 6106.



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      First, Appellant claims that the trial court abused its discretion when it

allowed Justice McCullem to invoke his Fifth Amendment privilege and refuse

to testify. See Appellant’s Brief at 13. Appellant contends that the right to

invoke Fifth Amendment privilege is void following sentencing absent an

expressed intention to challenge the conviction or sentence, or a real or

substantial hazard of incrimination. Id. at 13-15. Further, Appellant argues

that Mr. McCullem should have been required to testify regarding his plea

conviction. Id. at 15.

      With regard to the invocation of the Fifth Amendment,

      [t]he Fifth Amendment provides no person shall be compelled in
      any criminal case to be a witness against himself.           This
      prohibition not only permits the refusal to testify against one’s
      self when a defendant in a criminal trial, but in any other
      proceeding, civil or criminal, formal or informal, where the
      answers might incriminate [the speaker] in future criminal
      proceedings.

Commonwealth v. Knoble, 42 A.3d 976, 979 (Pa. 2012) (internal citations

and quotations omitted). Further, it is always for the court to judge if the

silence is justified.   See Commonwealth v. Melvin, 79 A.3d 1195, 1201

(Pa. Super. 2013). For the court to overrule the claim of privilege, it must

be perfectly clear “from a careful consideration of all the circumstances, that

the witness is mistaken in the apprehension of self-incrimination and the

answers demanded [c]annot possibly have such tendency.” Id.

      The main focus of Appellant’s argument relies on the fact that because

Mr. McCullem had already pleaded guilty, received his sentence, and



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expressed no specific desire to appeal, he was not entitled to his

constitutional right against self-incrimination.   See Appellant’s Brief at 13-

15. However, Appellant does not address how the absence of this testimony

was prejudicial to him. He cites in support a United States Supreme Court

case upholding a trial court’s decision requiring witnesses to testify despite

invocation of privilege solely to that conduct for which they had admitted

guilt.    See Namet v. United States, 83 S. Ct. 1151, 1155 (1963).            In

Namet, the appellant argued that the witnesses’ invocation of privilege

regarding other conduct implied to the jury that they had a nefarious

relationship with him and, accordingly, was prejudicial. Id. at 1153-57.

         Here, the sole reference to the effect of Mr. McCullem’s testimony was

that the prior conviction was “relevant to the issue of possession of the

firearms at issue in this case.”      See Appellant’s Brief at 12.     However,

Appellant’s argument section does not further develop this assertion nor

does it cite to relevant case law in support of this position. See Pa.R.A.P.

2119(a)-(c); see also Commonwealth v. Knox, 50 A.3d 732, 748 (Pa.

Super. 2012) (“[T]he argument portion of an appellate brief must be

developed with a pertinent discussion of the point which includes citations to

the relevant authority.”) Accordingly, we find that Appellant has waived this

issue for purposes of appeal.

         Next, Appellant contends that the trial court abused its discretion when

it refused to instruct the jury on “mere presence” in a constructive

possession case. See Appellant’s Brief at 16-17. Appellant argues that the

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instruction was vital to his defense that the firearms belonged to another

person. Id. at 19. Further, Appellant claims there was no evidence of his

explicit knowledge, intent, or possession of the firearm, and accordingly the

instruction was crucial to the jury’s understanding of the law. Id. at 20.

      With regard to a trial court’s refusal to give a specific jury instruction,

      it is the function of this [C]ourt to determine whether the record
      supports the trial court’s decision. In examining the propriety of
      the instructions a trial court presents to a jury, our scope of
      review is to determine whether the trial court committed a clear
      abuse of discretion or an error of law which controlled the
      outcome of the case. A jury charge will be deemed erroneous
      only if the charge as a whole is inadequate, not clear or has a
      tendency to mislead or confuse, rather than clarify, a material
      issue. A charge is considered adequate unless the jury was
      palpably misled by what the trial judge said or there is an
      omission which is tantamount to fundamental error.
      Consequently, the trial court has wide discretion in fashioning
      jury instructions. The trial court is not required to give every
      charge that is requested by the parties and its refusal to give a
      requested charge does not require reversal unless the Appellant
      was prejudiced by that refusal.

Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006)

(internal citations and quotations omitted).

      With regard to mere presence, this Court has previously held that

      [t]he law is clear that a defendant cannot be convicted of a
      crime where the only evidence to connect him with the crime is
      “mere presence” at or near the scene. The converse is that
      something more than “mere presence” at the scene of the crime
      must be shown to convict one of the participants in the
      commission of the crime. It does not follow, as a corollary of
      this rule, that the jury must be instructed in every case that
      “mere presence” is insufficient to convict. Where a jury is fully
      and adequately instructed on the elements of a crime, and
      where it appears that a charge on “mere presence” is not


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     essential to their understanding of the case, the trial court may
     refuse to issue a specific instruction on mere presence.

Commonwealth v. La, 640 A.2d 1336, 1344 (Pa. Super. 1994) (internal

citations and quotations omitted).

     Further,    where   the   court   instructs   a   jury   regarding     the

Commonwealth’s burden to prove each element of the crime beyond a

reasonable doubt and that Appellant must have had the ability and intent to

exercise control over the item in question, the instruction is adequate. See

Commonwealth v. Estepp, 17 A.3d 939, 946 (Pa. Super. 2011). Here, the

trial court specifically instructed the jury that the Commonwealth has the

burden of proving each and every element of the crimes beyond a

reasonable doubt.    See N.T. at 108-10.    Further, the court instructed the

jury on the elements of persons not to possess a firearm. Id. at 116. With

regard to constructive possession, the court informed the jury that:

     For a person to possess a firearm, he must have the intent to
     control and the power to control the firearm.

     Constructive possession is found where an individual does not
     have actual possession over the legal instrument, but has
     conscious dominion over it.

     In order to prove conscious dominion, the Commonwealth must
     present evidence to show that the Defendant had both the power
     to control the item and the intent to exercise such control . . . it
     must be proven beyond a reasonable doubt that the Defendant
     had both the intent to control the item and the power to control
     the item.

Id. at 116.     The jury charge adequately informed the jury of both the

elements of the crime and constructive possession. Thus, a “mere presence”



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charge was not essential to the jury’s understanding of the case. See, e.g.,

Estepp, 17 A.3d 946; La, 640 A.2d at 1344.

      Further, Appellant is not entitled to such an instruction where the

evidence revealed that he was more than merely present at the scene. See,

e.g., La, 640 A.2d at 1345 (noting that appellant was not entitled to “mere

presence” instruction where his testimony established that he was not

merely present). Here, the evidence established that Appellant was driving

the car involved in the chase, fled police when they attempted a traffic stop,

fled the car after crashing it, and discarded a third firearm from his

waistband during his flight.   Thus, he was not entitled to this instruction

even if the court’s charge was not adequate.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2017




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