J-S57014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

TYRIK LARK

                            Appellant                      No. 3039 EDA 2015


          Appeal from the Judgment of Sentence September 8, 2015
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001854-2012


BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                              FILED NOVEMBER 03, 2017

        Appellant, Tyrik Lark, was charged with attempted murder, aggravated

assault, robbery, burglary, conspiracy, and possession of an instrument of

crime, based upon allegations that he and a co-defendant, Tyree Jackson,1

robbed and shot Luther Wilkinson inside his own home. A jury found Lark

guilty only of robbery and burglary. In this appeal, Lark argues the trial

court erred in allowing Wilkinson to testify that Lark’s “auntie” had called

him after the crime and offered to return the items stolen from him. After

careful    review,    we     conclude     Lark   has    failed   to   overcome   the

Commonwealth’s contention that this argument is waived. We therefore

affirm.
____________________________________________


1   Jackson’s appeal is docketed at 921 EDA 2016.
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      As we decide this appeal on purely procedural grounds, we need not

provide a summary of evidence at trial. Instead, we turn directly to the

resolution of the issues on appeal.

      Lark argues the trial court committed two errors with respect to

Wilkinson’s testimony about the phone call from Lark’s “auntie.” Wilkinson

testified the defendants had stolen a lion’s head necklace from him during

the robbery. See N.T., Jury Trial, 6/24/15, at 22. Jackson’s counsel asked

Wilkinson if detectives subsequently found that necklace in Wilkinson’s

bedroom. See id., at 82. Wilkinson testified he recovered the necklace when

Lark’s “auntie” called him and put Lark on the phone. See id., at 83.

      Wilkinson testified Lark apologized and offered to return the stolen

items. See id. Wilkinson told Lark to give the necklace to Wilkinson’s

landlord. See id. The landlord subsequently returned the necklace to

Wilkinson, telling him a “girl” brought it to him in a bar. Id., at 83-84.

      During this passage of Wilkinson’s testimony, Jackson’s counsel

repeatedly objected to Wilkinson’s answer. First, Jackson’s counsel argued

Wilkinson was responding to a question that had not been asked. See id., at

82. Next, he objected on hearsay grounds. See id., at 83. Finally, he offered

a non-specific objection. See id. Importantly, however, counsel for Lark

never joined in these objections nor offered his own objection.

      Jackson’s counsel later made an in camera request for a mistrial based

upon this portion of Wilkinson’s testimony. See id., at 114. After hearing


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argument from both the assistant district attorney and Jackson’s counsel,

the court denied the request. See id., at 115-122. Once again, Lark’s

counsel did not join the objection or voice his own objection.

       Lark first contends the court should have precluded the testimony

when Jackson’s counsel objected to it. Second, he asserts the court should

have declared a mistrial when Jackson’s counsel requested one in a sidebar

after Wilkinson’s testimony.

       The Commonwealth argues these issues are waived, as Lark did not

join   in   Jackson’s     objection   or   request   for   a   mistrial.   Thus,   the

Commonwealth asserts he failed to preserve them by raising them in the

trial court.

       Lark does not dispute that only Jackson’s counsel raised these issues

before the trial court.

       However, present counsel would argue that co-counsel’s
       objection was specific enough to inform the trial court [of] the
       exact basis of his objection. Further, the testimony elicited
       during     [Jackson’s   counsel’s]    cross-examination   directly
       [affected] Lark because it was his name and his words which
       [Wilkinson] began to discuss. Accordingly, present counsel would
       argue that Lark’s right to argue this issue was not waived in that
       co-counsel’s objections were sufficient to preserve this issue. …
       Co-counsel did an excellent job of outlining the issues which
       warranted a mistrial in this case and the issues which warrant a
       mistrial by co-counsel are identical to both defendants and
       [affect] them both the same.

Appellant’s Brief, at 11-12.

       “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). Furthermore, an appellant

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cannot sit idly by while a co-defendant objects; in order to preserve the

issue for his own appeal, he must, at the very least, join in his co-

defendant’s objection. See Commonwealth v. Irvin, 134 A.3d 67, 75 n.12

(Pa. Super. 2016).

     As Lark concedes he did not join in Jackson’s objection and request for

a mistrial, and did not timely raise an objection of his own, the issues are

waived. As a result, neither of Lark’s issues on appeal are preserved. We

therefore affirm his judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2017




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