J-A16014-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    DIANA BAERGA,

                             Appellant               No. 2714 EDA 2016


              Appeal from the Judgment of Sentence July 21, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008005-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                  FILED SEPTEMBER 24, 2018

        Appellant, Diana Baerga, appeals from the judgment of sentence of 11½

to 23 months’ house arrest, followed by 5 years’ probation, imposed after she

was convicted, following a non-jury trial, of possession with intent to deliver

a controlled substance (PWID), conspiracy to commit PWID, and possession

of a controlled substance. Appellant contends that she is entitled to a new

trial due to prosecutorial misconduct. After careful review, we affirm.

        Briefly, Appellant’s convictions stemmed from an undercover officer’s

observing her and two male cohorts’ selling narcotics on a public street in

Philadelphia.1 Appellant was arrested and proceeded to a non-jury trial on

May 24, 2016. At the conclusion thereof, the court convicted her of the above-

____________________________________________


1 For a more detailed factual summary, see Trial Court Opinion (TCO),
10/11/17, at 1-3.
J-A16014-18



stated offenses. On July 21, 2016, the court sentenced Appellant to the terms

of house arrest and probation stated supra. She filed a timely notice of appeal,

and she also timely complied with the trial court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.         The court

issued a Rule 1925(a) opinion on October 11, 2017.

      Herein, Appellant presents one issue for our review:

      A. Did the trial court err when it denied [] Appellant’s motion for
         a mistrial as a result of prosecutorial misconduct when the
         Assistant District Attorney informed the court that [] Appellant
         smelled like marijuana and was under the influence of
         marijuana?

Appellant’s Brief at 2 (unnecessary capitalization omitted).

      Appellant contends that the prosecutor in this case committed

misconduct when, just prior to the start of her non-jury trial, the prosecutor

alleged to the court that Appellant was under the influence of marijuana.

Appellant’s assertion of prosecutorial misconduct was placed on the record by

defense counsel just after the court had rendered its verdict:

      [Defense Counsel]: Your Honor, may I also place on the record …
      that prior to this, it was at sidebar that the Commonwealth made
      an allegation that [Appellant] was under the influence of
      marijuana today, and that was brought to Your Honor’s attention,
      and it was said that it was not going to affect your decision. I’m
      not saying that it did. I just want it on the record now that
      [Appellant’s] been found guilty, and that we proceed to continue
      anyway.

N.T. Trial, 5/24/16, at 129. In response, the following exchange between the

trial court and defense counsel occurred:

      THE COURT: Let me make it clear. In my jury trial waiver,
      colloquy of [Appellant], I asked [Appellant] … was she under the

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      influence of any drugs or alcohol. She indicated to me “no.” She
      did let me know that she took Xanax. The [c]ourt found, when
      we colloquyed [sic] her, that her testimony was credible. The
      [c]ourt did not find that she was under the influence of any drugs.
      The [c]ourt took no -- did not take any of the allegations by the
      Commonwealth into consideration. The [c]ourt has made it’s [sic]
      decision.

      [Defense Counsel]: And the allegation was that she smelled of
      marijuana today. I just want to make sure it’s on the record.

      THE COURT: Again, the [c]ourt does not smell any marijuana in
      the courtroom, and the [c]ourt … believed the statement that
      [Appellant] was not under the influence of any drugs or alcohol,
      and [Appellant] … chose to remain silent, as is her constitutional
      right. … I don’t get the connection between marijuana, the smell
      of marijuana, or anything.

      [Defense Counsel]: I just want on the record that the
      Commonwealth went to the fact[-]finder before the trial started
      and said that they believe [Appellant] was under the influence of
      marijuana. They smelled it. That’s all I want on the record.

      THE COURT: That’s fine. And the [c]ourt did not find that to be
      substantial.

      [Defense Counsel]: Okay.

      THE COURT: So the [c]ourt would not consider it.

Id. at 130-131.

      Appellant now contends that the trial court should have granted her a

mistrial    based   on   this   ostensible   prosecutorial   misconduct   by   the

Commonwealth’s attorney. Initially, the trial court concluded, and we agree,

that Appellant has waived any claimed error pertaining to a mistrial, as she at

no point requested such relief when raising the prosecutorial-misconduct issue

at trial.   See id.; see also TCO at 6 (concluding that Appellant failed to

preserve the issue regarding a mistrial, as she “did not directly ask for a



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mistrial, but merely stated that [she] wanted the conversations made on

sidebar to be a part of the record”).

      Notwithstanding Appellant’s waiver of this claim, we would discern no

prosecutorial misconduct that would warrant a new trial.           “Prosecutorial

misconduct occurs where the ‘unavoidable effect’ of the prosecutor’s actions

is to ‘prejudice the jury, forming in their minds fixed bias and hostility towards

the accused so as to hinder an objective weighing of the evidence and impede

the rendering of a true verdict.’” Commonwealth v. Chmiel, 777 A.2d 459,

464 (Pa. Super. 2001). Here, the fact-finder in Appellant’s case - the trial

court - repeatedly stated that it did not believe the Commonwealth’s allegation

that Appellant was under the influence of marijuana, or place any weight on

the Commonwealth’s assertion in reaching its verdict. See N.T. Trial at 130-

31. Because it is clear that the court’s ability to render a true verdict was not

impacted by the Commonwealth’s remark about Appellant’s marijuana use,

she has failed to demonstrate that prosecutorial misconduct occurred.

Consequently, even had Appellant preserved her claim that the trial court

should have granted her a new trial, we would deem this issue meritless.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/18

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