Com. v. Schlegel, B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BARRY SCHLEGEL :
:
Appellant : No. 1605 EDA 2020
Appeal from the Judgment of Sentence1 Entered July 10, 2020
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000426-2018
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 22, 2021
Barry Schlegel appeals from the judgment of sentence, entered in the
Court of Common Pleas of Pike County, following his conviction for three
counts of simple assault.2 After careful consideration, we affirm.
On August 4, 2018, Schlegel took his then-girlfriend, Concetta Friedfel,
to the Wayne County Fair. N.T. Jury Trial, 1/15/20, at 9-11. About fifteen to
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* Retired Senior Judge assigned to the Superior Court.
1 Although Schlegel filed his notice of appeal from the July 21, 2020 order
denying post-verdict motions, we have amended the caption to reflect that
the appeal is technically taken from the judgment of sentence. See
Commonwealth v. Chamberlain, 658 A.2d 395 (Pa. Super. 1995) (order
denying post-sentence motion acts to finalize judgment of sentence; thus,
appeal is taken from judgment of sentence, not order denying post-sentence
motion).
2 18 Pa.C.S. § 2701(a).
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thirty minutes after Schlegel began to drive Friedfel home, the couple began
to argue as Schlegel believed Friedfel was having an affair; consequently,
Schlegel struck Friedfel three times before dropping her off at her home in
Pike County. Id., 1/14/20, at 32-41, 91. On January 15, 2020, Schlegel was
convicted, by a jury, of three counts of simple assault. On July 13, 2020,
Schlegel was sentenced to a total of thirty-six to seventy-two months’
incarceration.
Schlegel filed post-sentence motions on July 20, 2020, arguing, inter
alia, that a new trial should be granted because (1) Schlegel was prejudiced
by prosecutorial misconduct and (2) Schlegel was tried and sentenced in Pike
County, an improper venue, because the crime may have been committed in
Wayne County. Post-Sentence Motions, 7/20/20, at 2-7. On July 21, 2020,
the trial court denied Schlegel’s post-sentence motions without a hearing.
Schlegel filed a timely notice of appeal on August 19, 2020. Schlegel and the
court subsequently complied with Pa.R.A.P. 1925. On appeal, Schlegel raises
the following issues for our review:
1. Did the trial court err in failing to grant [Schlegel]’s post-
sentence motion for [a] new trial based upon prosecutorial
misconduct during closing argument, where counsel for the
Commonwealth made repeated comments, the effect of which
was to inflame the passions or prejudices of the jury, and
express his personal belief or opinion as to the truth or falsity
of testimony or evidence, and his opinion of [Schlegel’s guilt]?
2. Did the trial court err in failing to grant [Schlegel’]s post-
sentence motion for [a] new trial based upon the fact that the
trial testimony clearly established that the proper venue for
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[the] trial would have been in Wayne County, and not Pike
County[,] where it was actually tried?
Appellant’s Brief, 3/12/21, at 2.
Schlegel’s first claim raises an allegation of prosecutorial misconduct.
Our “stringent” standard of review for a claim of prosecutorial misconduct
stemming from improper argument to the jury is well-settled: “Comments by
a prosecutor constitute reversible error only where their unavoidable effect is
to prejudice the jury, forming in their minds a fixed bias and hostility toward
the defendant such that they could not weigh the evidence objectively and
render a fair verdict.” Commonwealth v. Chmiel, 30 A.3d 1111, 1147 (Pa.
2011).
First, Schlegel argues that the prosecutor’s statements “constitute
reversible error” because they “prejudice[d] the jury, forming… fixed bias and
hostility toward [Schlegel] such that they could not weigh the evidence
objectively.” Appellant’s Brief, 3/12/21, at 6. No relief is due.
It is well-settled that failing to offer a specific, timely objection to the
error or offense at trial results in the waiver of that claim. Commonwealth
v. Smith, 213 A.3d 307, 309 (Pa. Super. 2019) (citations omitted) (emphasis
added); see also Pa.R.A.P. 302. Instantly, Schlegel did not raise any
objection to the Commonwealth’s closing argument, and instead raised the
issue for the first time in his post-sentence motions. N.T. Jury Trial, 1/15/20,
at 126-60. Schlegel concedes in his appellate brief that he never made a
timely, formal objection to the prosecutor’s statements at trial, and he does
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not cite to anything in the record or any legal authority suggesting this issue
has been preserved for appeal. See Appellant’s Brief, 3/12/2021, at 9.
“[E]ven where a defendant objects to specific conduct, the failure to request
a remedy such as a mistrial or curative instruction is sufficient to constitute a
waiver.” Commonwealth v. Sandusky, 77 A.2d 663, 670 (Pa. Super. 2013)
(quoting Commonwealth v. Manley, 985 A.2d 256, 267 n. 8 (Pa. Super.
2000) (objection to prosecutor’s closing argument, with no specific remedy
request for curative instruction or mistrial, did not preserve issue for appeal)).
Because Schlegel never made any timely objection to the Commonwealth’s
closing argument, let alone an objection with sufficient specificity to allow the
court to correct any prejudice, this claim is waived.3 Commonwealth v.
Rose, 960 A.2d 149, 154-55 (Pa. Super. 2008).
Even if Schlegel’s claim of prosecutorial misconduct was not waived,
Schlegel would not be entitled to relief. Schlegel alleges that the prosecutor
committed misconduct by: (1) commenting that defense counsel “can’t figure
out how to silence his cell phone[;]” (2) describing a portion of Schlegel’s
testimony as “bizarre” and “fanciful[;]” (3) “noting things that [Schlegel]
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3 We note that a defendant seeking to object to the prosecutor’s closing
argument need not object exactly at the moment the allegedly prejudicial
remarks are made to the jury, rather the defendant may wait, within reason,
until the jury is not present to raise an objection with the judge. See, e.g.,
Rose, supra (citing Commonwealth v. Adkins, 364 A.2d 287, 291 (Pa.
1976)).
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didn’t say to arresting officers;”4 (4) asking the jury to consider Schlegel’s
incentives to lie; and (5) asking the jury to return a verdict “that speaks the
truth because the truth in this case is that he is guilty.” Appellant’s Brief,
3/12/2021, at 7-8; N.T. Trial, 1/15/20, at 127-37.
Without further elaboration, Schlegel asserts that the prosecutor’s
conduct “could only have improperly enflamed the passions of the jury,
convinced the jury of the personal opinions of the prosecutor on issues of guilt
and credibility, and encouraged the jury to disregard valid applicable legal
principles.” Brief of Appellant, at 9. We find this argument unpersuasive.
Schlegel has failed to establish that the “unavoidable effect” of this conduct,
either individually or in the aggregate, “is to prejudice the jury, forming in
their minds a fixed bias and hostility toward [Schlegel] such that they could
not weigh the evidence objectively and render a fair verdict.” See Chmiel,
supra. First, there is nothing to suggest that the prosecutor’s comments
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4 While the Commonwealth cannot use a non-testifying defendant’s pre-arrest
silence to infer the defendant’s guilt, “when a criminal defendant waives his
right to remain silent and testifies at his own trial, neither the United States
nor the Pennsylvania Constitution prohibit a prosecutor from impeaching a
defendant’s credibility by referring to his pre-arrest silence.”
Commonwealth v. Bolus, 680 A.2d 839, 844 (Pa. 1996). Here, the line of
questioning that was referenced during trial did not regard Schlegel’s pre-
arrest silence as to whether he committed simple assault. Rather, the
prosecutor argued that because Schlegel testified at trial that Friedfel hit him
in the ear, his credibility on this point should be questioned because he gave
inconsistent statements to the police, initially stating the confrontation was
“just an argument” and failing to mention being struck himself. N.T. Trial,
1/15/2021, at 46-50, 81, 91-92, 131-32.
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regarding defense counsel’s cell phone prevented the jury from weighing the
evidence objectively. See id.; cf. Commonwealth v. Green, 611 A.2d 1297,
1299 (Pa. Super. 1997) (prosecutor’s closing remarks in shooting case,
referencing “525 homicides in Philadelphia last year” and “shooting[s]” in Los
Angeles “were calculated to inflame the prejudices of the jury”). Second, the
prosecutor properly called Schlegel’s credibility into question by describing a
small portion of his testimony—that Schlegel could not remember whether he
grabbed Friedfel’s clothes—as “pretty bizarre,” and pointing out that
Schlegel’s initial statement to police—that he and Freidfel just had “an
argument,” is inconsistent with his testimony that Freidfel struck his ear. N.T.
Trial, 1/15/2021, at 130; Commonwealth v. Judy, 978 A.2d 1015, 1020
(Pa. Super. 2009) (“[I]t is improper for a prosecutor to express a personal
belief as to [] credibility. . . [h]owever, the prosecutor may comment on the
credibility of witnesses”). Third, the prosecutor properly asked the jury to
consider Schlegel’s credibility, including any incentive to lie. Id. at 1023 (“A
prosecutor’s contention that a defendant lied is neither unfair nor prejudicial
when the outcome of the case is controlled by credibility.”). Lastly, the
prosecutor’s plea to the jury to find a verdict that “speaks the truth” that
Schlegel is “guilty” fits permissible oratorical flair, summary, and
argumentation. See Commonwealth v. Burno, 94 A.3d 956, 974-75 (Pa.
2014) (finding prosecutor’s plea to the jury to “[f]ind [defendant] guilty of
first degree murder” was not “objectionable prosecutorial misconduct”); see
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also Commonwealth v. Clancy, 192 A.3d 44, 48-51 (Pa. 2018)
(prosecutor’s comments that defendant was “a cold blood killer” did not
constitute misconduct).
Additionally, the prosecutor reminded the jury of its role as fact-finder
and weigher of witness credibility, how “[their] memory controls”, and told
them to “use their sense[,]” to “consider the evidence[,]” and follow legal
principles. N.T. Trial, 1/15/2021, at 130, 133, 139. Under these
circumstances, the trial court properly denied Schlegel’s post-sentence motion
for a new trial based on prosecutorial misconduct. Chmiel, supra.
Next, we turn to whether the court erred in denying Schlegel’s post-
sentence motion for a new trial based on improper venue. “[V]enue begins in
the court with a geographic connection to the events at issue” and requires a
party to move to change venue “addressed to the discretion of the trial court”
based on “the inability to receive a fair and impartial trial in the original
tribunal.” Commonwealth v. Bethea, 828 A.2d 1066, 1075 (Pa. 2003).
Venue requires that a criminal defendant stand trial in the county in
which the crime was committed, protecting the accused from unfair
prosecutorial forum shopping. U.S. Const. Amend. VI; Pa. Const. Art. I, § 9.
“[T]he purpose of venue, apart from the manner in which it relates to subject
matter jurisdiction, is a matter of convenience to the
litigants.” Commonwealth v. Miskovitch, 64 A.3d 672, 689 (Pa. Super.
2013). The Commonwealth has the burden of proving that venue is proper
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and should “prove venue by a preponderance of the evidence if the
defendant properly raises the issue.” Commonwealth v. Gross, 101
A.3d 28, 33 (Pa. 2014) (holding that Commonwealth’s preliminary hearing
transcript supported its belief that venue was proper and defendant carried
burden to rebut) (emphasis added).
In his post-sentence motion, Schlegel argued that a new trial was
warranted, alleging for the first time that venue was improper. Because
Schlegel never sought dismissal of his case on grounds of improper venue
before or during his trial, the Commonwealth had no burden to prove venue.
See Gross, supra; see also Commonwealth v. Succi, 173 A.3d 269, 283-
84 (Pa. Super. 2017) (holding that because appellant did not seek dismissal
of appellant’s New Jersey cases based on improper venue before trial court,
that argument was waived on appeal).
Here, Schlegel testified at trial that the entire event occurred in Wayne
County and not Pike County—specifically, during the drive back from the
Wayne County Fair. N.T. Jury Trial, 1/15/20, at 55. Therefore, Schlegel and
his defense team clearly had access to enough information to raise a venue
challenge before the trial began, and Schlegel should have done so either
before or during trial. See Succi, supra. Instead, Schlegel waited until the
trial was over and his guilt was established to raise a claim of improper venue.
Because Schlegel never made a timely objection regarding venue, the venue
issue has been waived. See Commonwealth v. Baumhammers, 960 A.2d
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59, 63 (Pa. 2008) (holding issues are not preserved solely by raising them at
“at any time during the lower court proceedings” but rather by objections
“made timely to the error”); Smith, supra at 309.
Based on the foregoing, the trial court did not err or abuse its discretion
in denying Schlegel’s post-sentence motion for a new trial.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2021
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