J-S47038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

PATRICK JOSEPH LAVELLE

                        Appellant                      No. 70 EDA 2014


      Appeal from the Judgment of Sentence of November 26, 2013
           In the Court of Common Pleas of Delaware County
           Criminal Division at No.: CP-23-CR-0002757-2013


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                           FILED OCTOBER 14, 2014

     Patrick Joseph Lavelle appeals from the judgment of sentence entered

on November 26, 2013, following his jury conviction of unlawful restraint.

We affirm.

     The trial court set forth the facts of this case as follows:

     On March 31, 2013, [Lavelle] was arrested and charged with
     indecent assault, unlawful restraint, simple assault, and
     recklessly endangering another person, to wit, Robia Comer, a
     sales associate employed by Ryan Kia. The matter proceeded to
     trial, at which the victim, Ms. Comer, testified that on March 30,
     2013, [Lavelle] appeared at the automobile dealership to test
     drive a Kia Soul. [Comer] got into the passenger seat and
     proposed a test drive route. [Lavelle] proceeded in a normal
     manner, but once he passed a supermarket he began speeding
     up faster and faster, making numerous left and right turns and
     dipping down little streets. [Lavelle] instructed [Comer] that he
     was going to take her to a “special place.” [Lavelle] then
     removed his hand from the stick shift, placed it on her knee, and
     began sliding it up her leg. [Comer] brushed his hand away two
     times. In response to [Comer’s] admonition that they should go
     back to the dealership, [Lavelle] turned up the radio volume,
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        told [Comer] to be quiet, and then drive up a street near the
        municipal building. The car coasted into a parking spot near an
        automobile parts store and then just stopped or died. [Lavelle]
        exited the vehicle and then came around to the passenger door,
        but [Comer] locked all of the doors of the car. [Lavelle] ran
        away, and [Comer] telephoned her manager and her husband.
        Her manager called the police, who then arrived and took a
        statement.

Trial Court Opinion (“T.C.O.”), 4/4/2014, at 1-2 (record citations and some

quotation marks omitted).

        On September 12, 2013, a jury convicted Lavelle of unlawful restraint

and acquitted him of the charges of indecent assault and recklessly

endangering another person.1 On November 26, 2013, the court sentenced

Lavelle to not less than 364 nor more than 729 days’ incarceration, to be

followed by one year of probation. Lavelle filed a motion for reconsideration

of his sentence, which the trial court denied on December 5, 2013. Lavelle

timely appealed to this Court on December 23, 2013. On January 16, 2014,

Lavelle entered a statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b); the court filed its Pa.R.A.P. 1925(a) opinion on April 4,

2014.

        Lavelle presents one issue for our review:   “Whether the trial court

erred when it instructed the jury on the elements of unlawful restraint by



____________________________________________


1
      See 18 Pa.C.S.A. §§ 2902, 3126(a)(1), and 2705, respectively. An
additional charge of simple assault, 18 Pa.C.S.A. § 2701(a)(3), was
withdrawn by the Commonwealth on November 26, 2013.



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essentially dictating to them that it was fact that Mr. Lavelle refused to let

the alleged victim out of the subject vehicle[?]” Lavelle’s Brief at 7.

      Preliminarily, the Commonwealth asserts that Lavelle has waived his

challenge for failure to object to the challenged instruction in a timely

manner, and that “counsel was neither specific regarding how the jury

charge should be corrected by the court nor did counsel conclude the charge

was erroneous.” Commonwealth’s Brief at 16. We disagree.

      “[O]ur rules of procedure require that a party specifically object to the

language of a jury charge in order to preserve the claim.” Commonwealth

v.   Burwell,   58    A.3d   790,   795     (Pa.   Super.   2012);   see   also

Pa.R.A.P. 302(b). Likewise, “[n]o portions of the charge nor omissions from

the charge may be assigned as error, unless specific objections are made

thereto before the jury retires to deliberate.     All such objections shall be

made beyond the hearing of the jury.” Pa.R.Crim.P. 647(B).

      Here, following the trial court’s instructions to the jury, counsel for

Lavelle objected to the court’s charge for unlawful restraint at sidebar.

Notes of Testimony (“N.T.”), 9/12/2013, at 106. Specifically, he objected to

the language that he paraphrased as: “if you find something that prevented

her from getting out of the car.” Id. at 107. Although he noted that it was

“[m]aybe a little leading but not necessarily erroneous,” he repeated his

objection and the court concluded the sidebar. Id. at 107-08.

      Accordingly, the record demonstrates that Lavelle objected to specific

language in the charge beyond the hearing of the jury at sidebar.          See

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Pa.R.Crim.P. 647(B). Thus, he has preserved a challenge to the charge, and

we will review his claim on the merits.

      Lavelle argues that the trial court prejudiced the jury when it

“commented on the evidence in a fashion that invaded the province of the

jury as factfinder by essentially telling the jury that it was fact that Mr.

Lavelle refused to let the alleged victim out of the car.” Lavelle’s Brief at 12.

We disagree.

      Our standard of review of claims of error in jury instructions is well-

settled:

      When reviewing a challenge to jury instructions, the reviewing
      court must consider the charge as a whole to determine if the
      charge was inadequate, erroneous, or prejudicial. The trial court
      has broad discretion in phrasing its instructions, and may choose
      its own wording so long as the law is clearly, adequately, and
      accurately presented to the jury for its consideration. A new
      trial is required on account of an erroneous jury instruction only
      if the instruction under review contained fundamental error,
      misled, or confused the jury.

Commonwealth v. Miskovitch, 64 A.3d 672, 684 (Pa. Super. 2013)

(emphasis omitted). “A trial court has broad discretion in phrasing its jury

instructions and is not required to read the Standard Jury Instructions

verbatim.”     Commonwealth v. Pope, 14 A.3d 139, 144 n.1 (Pa. Super.

2011).     “Therefore, a charge will be found adequate unless the issues are

not made clear to the jury or the jury was palpably misled by what the trial

judge said.”    Commonwealth v. Grimes, 982 A.2d 559, 564 (Pa. Super.

2009).


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      Our Crimes Code provides, in relevant part, the following definition of

unlawful restraint:

      § 2902. Unlawful restraint

      (a) Offense defined. —Except as provided under subsection
      (b) or (c) [pertaining to unlawful restraint of minors], a person
      commits a misdemeanor of the first degree if he knowingly:

         (1)     restrains another unlawfully in circumstances
         exposing [her] to risk of serious bodily injury[.]

18 Pa.C.S.A. § 2902(a)(1).

      At trial, the court instructed the jury on unlawful restraint as follows:

      The second crime charged is Unlawful Restraint.            And with
      respect to Unlawful Restraint and Recklessly Endangering, the
      concept of serious bodily injury is going to come into play and
      I’m going to describe that for you. But it comes into play in both
      of those crimes charged. The Defendant has been charged with
      Unlawful Restraint. To find the Defendant guilty of this offense
      you must find that each of the following two elements has been
      proven beyond a reasonable doubt: first, that the Defendant
      restrained Robia Comer unlawfully in circumstances that exposed
      her to the risk of serious bodily injury; and second, that the
      Defendant did so knowingly, in other words, that the Defendant
      was aware that he was restraining the individual, that the
      restraint was unlawful, and that he was exposing her to the risk
      of serious bodily injury. I’m going to explain some of these
      requirements. A person is restrained if she is deprived of her
      freedom to leave a particular place. In other words, if she is in
      the car and the manner in which the Defendant is driving causes
      her to be unable to safely exit the car, then that is—that means
      that the restraint was unlawful. The restraint is unlawful if it is
      by force, in other words, if he’s doing something that absolutely
      prevents her from leaving the car. A person is exposed to the
      risk of serious bodily injury if she is put in actual danger of being
      killed or suffering other serious bodily injury. Serious bodily
      injury that creates a substantial risk of death or that causes
      serious permanent disfigurement or protracted loss of
      impairment of the function of any bodily member or organ,
      Unlawful Restraint.

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N.T. at 101-03.

      Lavelle contends that the jury’s fact-finding duties were preempted by

the above instruction because “[t]he point of contention in the case at bar

was whether [he] refused to stop the car as the victim instructed” and the

trial court “negated this vital issue by telling the jury, in essence, that it

didn’t matter who said what because Unlawful Restraint occurs anytime a car

is in motion thereby preventing a safe exit by a passenger.” Lavelle’s Brief

at 15-16.

      First, there is no requirement that a victim instruct a perpetrator to

stop before he has committed unlawful restraint.          See 18 Pa.C.S.A.

§ 2902(a)(1). Second, the trial court repeatedly phrased its explanations of

the requirements of unlawful restraint using the conditional “if,” thus

requiring the jury to make its own findings as follows: “if she is deprived of

her freedom to leave a particular place,” “if she is in the car and the manner

in which the Defendant is driving causes her to be unable to safely exit the

car,” “if he’s doing something that absolutely prevents her from leaving the

car,” or “if she is put in actual danger of being killed or suffering other

serious bodily injury.” N.T. at 102. The court did not usurp the jury’s role

as fact-finder by posing these inquiries.

      Upon consideration of the trial court’s charge as a whole, we conclude

that it was not inadequate, erroneous, or prejudicial. Miskovitch, 64 A.3d

at 684. The trial court’s instructions thoroughly and accurately set forth the

elements of the charge of unlawful restraint, and did not palpably mislead

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the jury on this charge. See Grimes, 982 A.2d at 564. Accordingly, this

issue does not merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2014




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