J-S51001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TIMOTHY AARON SCHELL                       :
                                               :
                       Appellant               :   No. 1949 MDA 2018

       Appeal from the Judgment of Sentence Entered October 31, 2018
               In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0005272-2017


BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.:                          FILED OCTOBER 29, 2019

       Timothy Aaron Schell appeals from the judgment of sentence imposed

following his jury conviction of robbery, conspiracy to commit burglary, and

related offenses.1 We affirm.

       In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. See Trial Court Opinion, 1/22/19, at

1-7. Therefore, we have no need to restate them at length here.

       However, for the convenience of the reader we note briefly that Schell’s

conviction arose out of the theft of about $200 from Carlos Molina-Silva. Schell


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1 Specifically, the jury convicted Schell of robbery, 18 Pa.C.S.A. §
3701(a)(1)(iii); conspiracy to commit burglary, 18 Pa.C.S.A. § 903; burglary,
18 Pa.C.S.A. § 3502; criminal trespass, 18 Pa.C.S.A. § 3503(a)(1)(i); theft by
unlawful taking, 18 Pa.C.S.A. § 3921(a); terroristic threats, 18 Pa.C.S.A. §
2706(a)(i);and simple assault, 18 Pa.C.S.A. § 2701(a)( 3).
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testified in his own defense and many of the underlying facts are hotly

disputed.     Nevertheless,     viewed    in   the   light   most   favorable   to   the

Commonwealth as verdict winner, together with all reasonable inferences,

there was sufficient evidence for the jury to find the following facts:

       On July 29, 2017, after a night of heavy drinking at the local Veterans

of Foreign Wars (V.F.W.) club, Schell and his longtime girlfriend/paramour,

Andrina Shutt, ran out of money. Schell wanted more money to play poker

the next day. They decided that Shutt would drive to Molina-Silva’s nearby

apartment and have sex with him for money.

       Shutt had a day job, but was also a prostitute.2 She claimed at trial that

if she refused to have sex with other men for money, Schell became

“extremely physically and mentally abusive.” Trial Court Opinion, at 17. Shutt

testified that she had also known Molina-Silva for twelve years. After initially

agreeing to Schell’s plan, Shutt changed her mind, and refused. She also

became ill.

       Shutt called Schell on her cell phone from Molina-Silva’s bathroom. She

informed Schell that she was not going through with the plan to have sex with




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2 Shutt was the mother of five children. Schell was the father of at least one
of the children, and possibly more, but their respective testimony about
parentage was vague and inconclusive. Furthermore, Shutt suggested that the
victim, Carlos Molina–Silva, may have also been the father of one or two of
the children. See N.T. Trial, 8/28/18, at 138, 194.


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Molina-Silva. They argued. Finally, Shutt told Schell to get the money himself.

Schell agreed.

      Schell entered the apartment with his face partially obscured by a tee

shirt wrapped as a bandana. Schell contended that Shutt let him into the

apartment. Molina-Silva testified that he did not know Schell and had never

invited Schell into his apartment.

      After entering the apartment, Schell punched Molina-Silva, knocking

him down, and demanded money; he put a knife to Molina-Silva’s throat and

threatened to kill him if he did not provide more. In the struggle, Schell’s tee

shirt/bandana worked loose, and Molina-Silva was able to see Schell’s entire

face. After Molina-Silva provided the money, Schell left. Molina Silva waited a

day, but finally reported the incident to the police.

      At trial, defense counsel objected when the prosecutor brought up the

abusive relationship in the Commonwealth’s opening statement, as a

reference to prior bad acts, not permitted under the Rules of Evidence. The

trial court denied counsel’s motion for a mistrial. Defense counsel also

objected to the prosecutor’s statement that in the course of many taped prison

conversations with Shutt that were played at trial, Schell never said he was

innocent. Defense counsel argued that the prosecutor’s remark shifted the

burden of proof to the defense. However, counsel declined the trial court’s

offer of a special curative instruction. See N.T. Trial, 286-87. The trial court

gave a standard, comprehensive instruction on the burden of proof, and the


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presumption of innocence, repeating the preliminary instruction it had given

at the beginning of trial.

       The jury convicted Schell of all charges. The trial court imposed an

aggregate sentence of not less than thirteen nor more than twenty-six years

of incarceration at a state correctional institution. This timely appeal followed.3

       Schell presents three questions for our review on appeal:

       I. Whether the trial court erred by denying Appellant’s motion for
       mistrial during the Commonwealth’s opening statement when the
       Commonwealth disclosed past misconduct without providing
       notice [pursuant] to Rule 404(b)?

       II. Whether evidence at trial was insufficient to prove that
       Appellant committed the offense of conspiracy to burglary where
       the Commonwealth failed to establish that the Appellant conspired
       with another to enter the complaining witness’s residence?

       III. Whether the trial court erred in overruling Appellant’s
       objection during the Commonwealth’s closing argument because
       the Commonwealth’s statement amounted to burden shifting
       asserting that the Appellant had an affirmative duty to assert his
       innocence, which is highly prejudicial to the jury?

Appellant’s Brief, at 6 (unnecessary capitalization omitted).4

       Preliminarily, we note that the opening statements in this trial were not

transcribed. See N.T. Trial, 8/28/18, at 21. The trial court based its response



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3Both Appellant and the trial court complied with Rule 1925. See Pa.R.A.P.
1925.

4Schell originally presented ten allegations in his statement of errors. The trial
court responded to each of them. On appeal, Schell has chosen to proceed
only on these three issues. Accordingly, we deem the remainder of his
allegations of trial court error abandoned.

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to Schell’s first objection on the sidebar discussion of this issue, which was

transcribed. Furthermore,

      It is well-settled that the review of a trial court’s denial of a motion
      for a mistrial is limited to determining whether the trial court
      abused its discretion. An abuse of discretion is not merely an error
      of judgment, but if in reaching a conclusion the law is overridden
      or misapplied, or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will
      . . . discretion is abused. A trial court may grant a mistrial only
      where the incident upon which the motion is based is of such a
      nature that its unavoidable effect is to deprive the defendant of a
      fair trial by preventing the jury from weighing and rendering a
      true verdict. A mistrial is not necessary where cautionary
      instructions are adequate to overcome prejudice.

Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011) (citations

and internal quotation marks omitted).

      On the second issue, the trial court correctly describes our standard of

review for a challenge to the sufficiency of the evidence. See Trial Court

Opinion, at 7-8.

      On the third issue, we note that counsel did not ask for a mistrial, and

declined the trial court’s express offer of a special instruction. See N.T. Trial,

at 274-275, 287. Therefore, any allegation of trial court error has been

waived. The trial court gave a prompt, comprehensive curative instruction,

which emphasized the presumption of innocence, and the Commonwealth’s

unvarying burden to present evidence of each element of the crimes charged,

beyond a reasonable doubt. See N.T. Trial, 288-290.

      In any event, the claim would not merit relief. Our standard of review is

abuse of discretion:

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            [E]ven where the language of the district attorney is
      improper, a new trial is not necessarily required. The language
      must be such that its unavoidable effect would be to prejudice the
      jury, forming in their minds fixed bias and hostility toward the
      defendant, so that they could not weigh the evidence and render
      a true verdict. The effect of such remarks depends upon the
      atmosphere of the trial.

            Moreover, the prosecutor is entitled to argue any legitimate
      inferences which arise from the evidence and must be free to
      present his or her argument with logical force and vigor. In this
      regard, reversal of a conviction would be improper where the
      prosecutor’s remarks are motivated by and [are] commensurate
      with those of the defense. Whether these remarks are
      prejudicial is a question for the trial judge whose
      determination will not be overturned absent an abuse of
      discretion.

Commonwealth v. Blount, 564 A.2d 952, 957 (Pa. Super. 1989) (emphasis

added) (citations and internal quotation marks omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, we conclude

that there is no merit to the issues Appellant has raised on appeal. The trial

court opinion properly disposes of the questions presented. (See Trial Court

Opinion, 1/22/19, at 9-12; 15-17; and 18-20) (concluding: (1) the trial court

properly denied defense motion for mistrial where an untranscribed reference

to a pattern of abuse in Commonwealth’s opening statement did not constitute

evidence and merely described evidence Commonwealth intended to present,

which Commonwealth later did, without objection; (2) viewed in light most

favorable to Commonwealth as verdict winner, evidence of Schell’s entry into

the residence with his face covered, in conjunction with Schell’s attempts to


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convince Shutt not to testify, were sufficient for jury to find Schell was not

licensed to enter the residence beyond a reasonable doubt; and (3)

prosecutor’s remarks during closing argument did not constitute improper

burden shifting, and, even if it did, the trial court’s instructions to the jury

cured any undue prejudice). Accordingly, we affirm on the basis of the trial

court’s opinion.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2019




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