J-S66011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

MAURICE BATTLE,

                        Appellant                  No. 483 MDA 2014


     Appeal from the Judgment of Sentence Entered January 29, 2014
             In the Court of Common Pleas of Luzerne County
                        Criminal Division at No(s):
                         CP-40-CR-0001445-2011
                         CP-40-CR-0001471-2011


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED OCTOBER 22, 2014

     Appellant, Maurice Battle, appeals from the judgment of sentence of 3-

12 months’ incarceration and a consecutive term of 12 months’ probation,

imposed following his conviction for drug-related offenses. Appellant claims

that the verdict was against the weight of the evidence and alleges that the

Commonwealth engaged in prosecutorial misconduct. After careful review,

we affirm.

     On January 25, 2011, Corporal Adam Christian (Christian), an

undercover officer, and a confidential informant (CI) went to the home of

Sabra Carpenter (Carpenter) in Hannover Township, where the CI and

Christian had arranged to purchase crack cocaine.       Once they arrived,

Carpenter made a short phone call and then told Christian and the CI that
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“her guy” would arrive shortly.         Within twenty minutes, an extremely tall

black male with dreadlocks, later identified as Appellant by Christian,

showed up at Carpenter’s home. Christian gave $150 to Carpenter, who in

turn gave that money to Appellant.             Appellant delivered a bag of crack

cocaine to Carpenter, and Carpenter then gave the bag to Christian. After

he received the bag, Christian purchased an additional $50 of crack cocaine

from Appellant, again using Carpenter as an intermediary. On February 3,

2011, Christian and the CI returned to Carpenter’s home intending to

purchase more crack cocaine. Carpenter contacted Appellant, and Appellant

came to her home.          Again using Carpenter as an intermediary, Christian

purchased $210 of crack cocaine from Appellant.

      Officer       Stefanowicz   provided    surveillance   for   both   drug   buys.

Stefanowicz testified that, on January 25, 2011, he saw a black male arrive

and subsequently leave Carpenter’s home in a Chevy. On February 3, 2011,

Stefanowicz immediately recognized the same male arrive in the same

vehicle at Carpenter’s home. On the second occasion, he followed the Chevy

when it left Carpenter’s home and stopped it after he observed a speeding

violation.     Appellant was only given a verbal warning for the speeding

violation, but Stefanowicz took the opportunity to photograph Appellant’s

license,     thus    confirming   his   identity.    Appellant     was    subsequently

apprehended in New Jersey after a warrant was issued for his arrest.

      Appellant testified that he never sold nor used crack cocaine at any

time in his life. He believed that he had been racially profiled by Stefanowicz

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when he was stopped for speeding on February 3, 2011, as he denied having

exceeded the speed limit.      Appellant opined that Stefanowicz had framed

him in order to cover up that violation of his civil rights.

      After Appellant’s first trial ended with a hung jury, he was convicted by

a second jury of possession of a controlled substance, delivery of a

controlled substance, and conspiracy for the events that occurred on January

25, 2011 (CP-40-CR-0001445-2011). He was convicted of identical charges

for the events of February 3, 2011 (CP-40-CR-0001471-2011). On January

29, 2014, Appellant was sentenced to 3-12 months’ incarceration for his

delivery conviction at 1445-2011 and a consecutive term of 12 months’

probation for his delivery conviction at 1471-2011. He did not file a post-

sentence motion.

      Appellant filed a timely, consolidated notice of appeal on February 12,

2014, from the sentences imposed at 1445-2011 and 1471-2011. On March

10, 2014, Appellant complied with the trial court’s February 18, 2014 order

directing him to file a Pa.R.A.P. 1925(b) statement.           The Commonwealth

filed a response on March 13, 2014. The trial court then issued an opinion

pursuant to Rule 1925(a) on April 29, 2014.

      Appellant now presents the following questions for our review:

         A. Whether the Assistant District Attorney committed
            prosecutorial  misconduct   when[,]      during   cross-
            examination, he called [Appellant]’s direct testimony a
            “performance?”

         B. Whether the verdicts were against the weight of the
            evidence?

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Appellant’s Brief at 4.

      Appellant’s first claim stems from a comment made by the prosecutor

that Appellant’s testimony was a “performance,” which the prosecutor made

at the beginning of his cross-examination of Appellant:

      Q[Assistant District Attorney Zola][:] So, Mr. Battle, just so I’m
      clear - - and, I know you put on a great performance there on
      the end.

           MR. MARSILIO [Appellant’s counsel]: Objection, Your
      Honor. Move to strike.

            THE COURT: Sustained. It’s striken.

N.T., 10/21/13, at 138.

      As is clear from the transcript, the trial court sustained Appellant’s

objection to the prosecutor’s misconduct and struck it from the record.

However, the cross-examination of Appellant continued without Appellant’s

making any request for a mistrial, or any other form of relief, based upon

the prosecutor’s unprofessional commentary.       Moreover, Appellant fails to

cite where in the record that he requested any additional relief based upon

the prosecutor’s misconduct.

            It is well established that trial judges must be given an
      opportunity to correct errors at the time they are made. See
      Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272, 274
      (1974).    “[A] party may not remain silent and afterwards
      complain of matters which, if erroneous, the court would have
      corrected.” Id., quoting Commonwealth v. Marlin, 452 Pa.
      380, 305 A.2d 14, 16 (1973) (citations omitted). Even where a
      defendant objects to specific conduct, the failure to request a
      remedy such as a mistrial or curative instruction is sufficient to
      constitute waiver. See, e.g., Commonwealth v. Jones, 501
      Pa. 162, 460 A.2d 739 (1983) (claim of prosecutorial misconduct
      waived where defense counsel immediately objected to the

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      prosecutor's conduct but failed to request mistrial or curative
      instructions); Commonwealth v. Chimenti, 362 Pa.Super.
      350, 524 A.2d 913, 921 (1987) (issue was waived where
      defense counsel objected to a question posed by the prosecutor
      but failed to ask the trial judge to do anything further after the
      question had been answered).

Commonwealth v. Strunk, 953 A.2d 577, 579-80 (Pa. Super. 2008)

(emphasis added).

      In the instant matter, Appellant’s counsel objected to the prosecutor’s

unprofessional   conduct,   and   was   immediately   granted    the   relief   he

requested. He did not request a curative instruction, nor did he move for a

mistrial. Accordingly, Appellant’s claim that he should be granted a new trial

based upon the prosecutor’s comment is waived. Id. at 579.

      Next, Appellant asserts that the verdicts at 1445-2011 and 1471-2011

were against the weight of the evidence. It is axiomatic that:

      [A] weight of the evidence claim must be preserved either in a
      post-sentence motion, by a written motion before sentencing, or
      orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealth
      v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure to
      properly preserve the claim will result in waiver, even if the trial
      court addresses the issue in its opinion. Commonwealth v.
      Sherwood, 603 Pa. 92, 982 A.2d 483, 494 (2009).

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012).

      Instantly, Appellant did not file a post-sentence motion, nor does the

record reveal that Appellant preserved his claim “by a written motion before

sentencing, or orally prior to sentencing.” Id.   Consequently, this issue has

also been waived. Id.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2014




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