Com. v. Agnew, R.

J-S35038-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD KENNETH AGNEW, II :
:
Appellant : No. 1910 WDA 2016

Appeal from the Judgment of Sentence September 21, 2016
In the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000079-2016

BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 2, 2017

Appellant Richard Kenneth Agnew, II, appeals the judgment of

sentence entered in the Court of Common Pleas of Clarion County on

September 21, 2016, following a jury trial at which time he was sentenced

to fifteen (15) months to thirty (30) months in prison. Following a careful

review, we affirm.

The trial court set forth the relevant facts and procedural history

herein as follows:

The evidence presented at trial showed that a witness
observed [Appellant] "huff' [d]uster[1] in the parking lot of the
Trader Horn store and, a few minutes later, drive to a Sheetz
gas station. Officer Seyler of the Clarion Borough Police
____________________________________________

*
Former Justice specially assigned to the Superior Court.
1
Duster is a product comprised of high-pressure air used for cleaning
electronics and computer keyboards. N.T., 8/10/16, at 14-15.
J-S35038-17

Department was dispatched to the scene. Upon arrival, Seyler
observed a car matching the description of the reported vehicle
exit the Sheetz parking lot without turning on its headlights. As
it was approximately 9:30 PM and dark out, Officer Seyler
considered this to be unsafe and initiated a traffic stop. Office[r]
Seyler then observed the car make an erratic turn off of the
main road and back into the Sheetz parking lot. When Officer
Seyler approached the car during the course of the stop, he
observed a can of [d]uster and a Trader Horn bag on the
passenger's seat of the car. Upon questioning, [Appellant]
admitted that he had been huffing the [d]uster that night.
[Appellant] admitted to inhaling the [d]uster again during his
testimony at trial, but argued that he was not experiencing any
intoxicating effects of the [d]uster while he was driving.
In an off-the-record discussion before trial began, the
District Attorney and the defense attorney agreed to stipulate at
trial that the "[d]uster" constituted a solvent for the purposes of
§ 3802(d)(4) and § 7303(a). They agreed that the District
Attorney would offer the confiscated can of [d]uster into
evidence and place a stipulation to its nature as a solvent on the
record at that time. However, while the DA did enter the can into
evidence, he neglected to offer the stipulation. During closing
arguments, [Appellant] objected to the DA's characterization of
the [d]uster as a solvent, as the stipulation had not been placed
on the record during trial. N.T. of 8/10/2016, pp. 135-42. Upon
consideration of the attorneys' arguments during a sidebar
conference, I allowed the stipulation to be entered into the
record and instructed the jury that the attorneys had stipulated
that the [d]uster was a solvent.
[Appellant's] first two errors complained of on appeal
relate to this stipulation. [Appellant] alleges that the court erred
in sua sponte reopening the record during closing arguments to
allow entry of the stipulation, and further alleges that because
no evidence of the "solvent" element of the charges was properly
before the jury, the Commonwealth failed to prove the elements
of its case beyond a reasonable doubt. I responded to these
arguments in detail in an Order dated November 30, 2016,
disposing of [Appellant’s] Post -Sentence Motion.

***

Trial Court Opinion, filed 1/19/17, at 1-2 (unnumbered).

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Appellant filed a post-sentence motion on October 3, 2016, and the

trial court denied the same in an Order entered on December 1, 2016.

Appellant filed a timely notice of appeal on December 16, 2016, following

which the trial court ordered him to file a concise statement of errors

complained of on appeal on December 29, 2016. Appellant complied and

filed the same on January 11, 2017.

In his brief, Appellant presents the following Statement of Questions

Involved:

I. Did the trial court err in reopening the record sua sponte
permitting the introduction of a stipulation after the close of
evidence and after the Defense had made closing arguments?
II. Did the Commonwealth fail to present sufficient evidence
properly in front of the jury to find Appellant guilty beyond a
reasonable doubt?

Brief for Appellant at 4.

Appellant first maintains that in reopening the record sua sponte to

permit the introduction of evidence specifically pertaining to the solvent

which the Commonwealth had omitted to present in its case-in-chief, the

trial court erred as a matter of law, abused its discretion, and/or violated

Appellant’s due process rights by essentially inserting itself as an advocate

for the Commonwealth. Appellant posits that but for the trial court’s

intervention, the Commonwealth’s failure to offer the parties’ stipulation into

evidence would have been fatal to the Commonwealth’s case. Brief for

Appellant at 11.

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A trial court has the discretion during a jury trial to reopen a case for

either side to present additional evidence concerning an element of a crime

prior to the verdict so as to prevent a failure or miscarriage of justice.

Commonwealth v. Tharp, 525 Pa. 94, 98, 575 A.2d 557, 558-59 (1990)

see also Commonwealth v. Safka, ___ Pa. ____, ____, 141 A.3d 1239,

1249 (2016)(finding in a matter of first impression the trial court sitting in a

bench trial had the discretion to reopen the record sua sponte to receive

additional testimony concerning a vehicle’s Event Data Recorder to avoid a

miscarriage of justice).2 Acknowledging it effectively had reopened the

____________________________________________

2
Recognizing that existing authority had found the trial court acted within its
discretion in permitting the Commonwealth to reopen its case for the
purpose of meeting a demurrer interposed by the defense prior to the trial
court’s ruling upon that motion, the Supreme Court in Tharp reasoned as
follows:

In this case the trial judge permitted the Commonwealth
to reopen its case to present direct evidence as to the appellant's
age in order to further establish the age element of a charge for
corruption of a minor. That offense requires that the defendant
be at least eighteen years of age. 18 Pa.C.S. § 6301(a). Here,
the appellant was thirty-one years of age at the time of trial. The
Commonwealth initially failed to present any direct evidence of
his age but relied on the circumstantial evidence. After the trial
judge permitted the Commonwealth to reopen, testimony was
offered by the arresting police officer who verified the age of the
appellant through the appellant's driver's license.
In view of appellant's appearance and the activities that he
engaged in at the time of this event, it is understandable why
the prosecution would, in the first instance, be led to believe that
direct proof of appellant's age would be unnecessary. Once a
direct attack based upon this question was interposed, the court,
in the exercise of its discretion, was justified in permitting the
(Footnote Continued Next Page)

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record during the Commonwealth’s closing argument to permit the

Commonwealth to present additional evidence, the trial court explained its

decision to do so as follows:

[T]he attorneys clearly had agreed, and it was never in
dispute, that the duster was a solvent or noxious substance. I
decided it was unfair for [Appellant] to gain an acquittal solely
because the District Attorney had neglected to offer a stipulation
on a fact that was not in dispute. I allowed the admission in
evidence of the fact that the duster was a solvent or noxious
substance in order to prevent a failure or miscarriage of justice.

Trial Court Order, filed 12/1/16, at 2 (unnumbered).

Initially, we note that Appellant frames “[t]he issue of the present case

[as] [the trial court’s] sua sponte reopening of the record during a jury trial

to permit the introduction of a stipulation after the Defense had concluded

closing arguments.” Moreover, Appellant avers the trial court abused its

discretion in entering the stipulation into evidence “in the middle of the

Commonwealth’s closing argument, after a side–bar held in front of the jury,

and with no statement that this evidence was not to be considered more

important than any of the other presented evidence.” Brief for Appellant at

_______________________
(Footnote Continued)

introduction of direct evidence to avoid the possibility of a result
inconsistent with the true facts. Whether a demurrer could have
been granted on the circumstantial evidence presented is not the
issue. The court did, in its discretion, have the right to permit
additional, immediately available evidence directly related to the
issue raised.

Id. (footnote and citation omitted).

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16 (emphasis in original). Appellant also faults the trial court for failing to

provide defense counsel with an opportunity to readdress the issue, as his

closing argument had been completed, and the Commonwealth for failing to

present a reason for its omitting to present the evidence during its case-in

chief. Id. For the reasons that follow, we find Appellant has waived these

challenges for appellate review.

The following is Appellant’s own account of the relevant sidebar

discussion:

A side-bar was held wherein the stipulation was discussed.
[Partial Transcript] at 135. Specifically the Defense, while
agreeing that an agreement to stipulate existed, objected to
the reference of the stipulation that the duster was a solvent as
a fact that was not in evidence, because the Commonwealth
failed to offer the stipulation during the course of the trial. PT at
135-136. Initially, [the trial court] agreed with Defense Counsel.
PT 138-139. Upon further discussion, however, [the trial court]
felt that, despite the Commonwealth “technically” failing to offer
the stipulation, it would now reopen the record and submit the
stipulation to the jury, because there was pretrial agreement of
the parties for the stipulation. Id., at 140-141.
Following this, [the trial court] stated to the jury the
forgotten stipulation and allowed the Commonwealth to continue
its closing argument. PT at 141-142. The jury was eventually
dismissed to deliberate and returned a verdict of guilty on the
two misdemeanor charges. . . .

Brief for Appellant at 9 (emphasis in original).

Specifically, the trial court sustained Appellant’s initial objection “to the

district attorney’s reference to the substance being a solvent or noxious

substance because that’s not a fact that’s been entered into evidence” and in

doing so stated that “I’ll sustain your objection as to his reference to a

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stipulation because technically there was no stipulation on the record.”

N.T., 8/10/16, at 138-39. However, after further discussion and argument,

the trial court conversely stated: “I’m finding that there is a stipulation, so

[District Attorney] I’m reversing my previous decision that I just made a few

minutes ago, and I find there is a stipulation. So you may argue that, and I

will instruct the jury that it is a solvent or noxious substance.” Following

the trial court’s declaration, a notation in the transcript appears stating:

“(Whereupon, this ends the discussion held at the Judge’s sidebar.).”

Defense counsel never specifically objected to the trial court’s sua

sponte reopening of the record during the trial to permit the introduction of

the agreed upon stipulation at this juncture, to its reversal of its previous

ruling in this regard, or to its presentation of the jury instruction that the

substance was a solvent or noxious substance. Id. at 141 142, 162.

Indeed, the trial court characterized Appellant’s objection at trial as

pertaining to “the district attorney’s characterization of the duster as a

solvent.” See Trial Court Opinion, filed 1/19/17, at 2 (unnumbered). On

appeal, Appellant does not deny that duster is a solvent as defined in 18

Pa.C.S.A. § 7303. Brief for Appellant at 8.

“Issues not raised in the [trial] court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). In addition, “it is axiomatic

that issues are preserved when objections are made timely to the error or

offense.” Commonwealth v. Baumhammers, 599 Pa. 1, 24, 57, 960 A.2d

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59, 73 (2008). “The purpose of contemporaneous objection requirements

respecting trial-related issues is to allow the court to take corrective

measures and, thereby, to conserve limited judicial resources.”

Commonwealth v. Sanchez, 614 Pa. 1, 31, 36 A.3d 24, 42 (2011). “[A]

party may not remain silent and afterwards complain of matters which, if

erroneous, the court would have corrected.” Commonwealth v. Strunk,

953 A.2d 577, 579 (Pa.Super. 2008).

Moreover, as this Court recently observed:

It is well-established that “[a] party complaining, on appeal, of
the admission of evidence in the court below will be confined to
the specific objection there made.” Commonwealth v. Cousar,
593 Pa. 204, 231, 928 A.2d 1025, 1041 (2007), cert. denied,
553 U.S. 1035, 128 S.Ct. 2429, 171 L.Ed.2d 235 (2008). If
counsel states the grounds for an objection, then all other
unspecified grounds are waived and cannot be raised for the first
time on appeal. Commonwealth v. Arroyo, 555 Pa. 125, 142,
723 A.2d 162, 170 (1999);

Commonwealth v. McGriff, 2017 WL 1424438, at * 8 (Pa.Super. April 21,

2017). In light of the foregoing, because Appellant failed to raise a timely

and specific objection with the trial court on the grounds that he now raises,

he waived his first issue. Commonwealth v. Baumhammers, supra at

57, 960 A.2d at 93 (2008).3

____________________________________________

3
Appellant also asserts in his appellate brief that the trial court violated his
due process rights by unilaterally reopening the record. Brief for Appellant
at 18-19. However, Appellant did not aver a constitutional due process
violation in his Concise Statement of Errors Complained of on Appeal. As
(Footnote Continued Next Page)

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Assuming, arguendo, that this Court finds his previous claim

meritorious, Appellant next contends the Commonwealth failed to present

any evidence to the jury that the substance Appellant inhaled is a solvent

under 18 Pa.C.S.A. § 7303 which was necessary to prove the charges

brought against him beyond a reasonable doubt. Appellant states the fact

that the Commonwealth neglected to offer a stipulation of an undisputed fact

did not relieve it of its burden to provide sufficient evidence to prove the

charged crimes beyond a reasonable doubt. Brief for Appellant at 21-22.

Appellant relies upon our Supreme Court’s decision in Commonwealth v.

Jemison, 626 Pa. 489, 98 A.3d 1254 (2014) wherein the Court held, inter

alia, that because an element of the offense of persons not to possess

firearms constituted a prior conviction of a specific, enumerated offense, the

prosecution should not be required to accept a stipulation which

acknowledges that a prior conviction satisfies this element, but does not

name or identify the specific prior offense.

When examining a challenge to the sufficiency of evidence, we employ

a well-settled standard of review:

The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
_______________________
(Footnote Continued)

such, he has waived this challenge for his failure to raise it in his Rule
1925(b) statement. Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306
(1998). See also Strunk, supra (stating “[e]ven issues of constitutional
dimension cannot be raised for the first time on appeal.” (citations
omitted)).

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the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence

Commonwealth v. Beasley, 138 A.3d 39, 45 (Pa.Super. 2016) (citations

omitted).

Appellant was convicted of one count each of Driving Under the

Influence of Alcohol or Controlled Substance (DUI), 75 Pa.C.S.A. §

3802(d)(4), and Illegal Use of Solvents or Noxious Substances, 18 Pa.C.S.A.

§ 7303(a). The relevant subsection of the DUI statute reads:

(d) controlled substances.-- An individual may not
drive, operate or be in actual physical control of the movement
of a vehicle under any of the following circumstances:

(4) The individual is under the influence of a solvent
or noxious substance in violation of 18 Pa.C.S.A. § 7303
(relating to sale or illegal use of certain solvents and
noxious substances).

75 Pa.C.S.A. § 3802(d)(4). The crime of Illegal Use of Solvents or Noxious

Substances is defined as follows:

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No person shall, for the purpose of causing a condition of
intoxication, inebriation, excitement, stupefaction, or the dulling
of his brain or nervous system, intentionally smell or inhale the
fumes from any noxious substance or substance containing a
solvent having the property of releasing toxic vapors or fumes.

18 Pa.C.S.A. § 7303(a). A solvent or noxious substance refers to:

(f) Definition.--As used in this section, the phrase “any noxious
substance or substance containing a solvent having the property
of releasing toxic vapors or fumes” shall mean any substance
containing one or more of the following chemical compounds:
acetone, acetate, benzene, butyl alcohol, cyclohexyl nitrite, ethyl
alcohol, ethylene dichloride, gaseous or liquid fluorocarbons,
isopropyl alcohol, methyl alcohol, methyl ethyl ketone, nitrous
oxide, pentachlorophenol, petroleum ether, or toluene.

18 Pa.C.S.A. § 7303(f).

Officer Robert Seyler came in contact with Appellant upon responding

to a dispatch that a vehicle whose driver had been observed huffing duster

exited a Trader Horn parking lot with its headlights out and proceeded to a

nearby Sheetz.4 Officer Seyler stated he saw a can of duster on the

passenger seat when he approached Appellant’s vehicle as well as two

empty cans of duster in a Trader Horn bag. N.T., 8/10/16, at 8-14, 19.

After initially denying doing so, Appellant admitted he had inhaled the three

cans of Johnson’s brand duster when Officer Seyler informed him someone

witnessed him inhaling the duster Id. at 17-19, 28-29. Officer Seyler

directed Appellant to get out of the car at which time he observed Appellant
____________________________________________

4
Officer Seyler’s previously preserved testimony was read into evidence by
Renee Wingard who testified she worked in the prosecutor’s office. N.T.,
8/10/16, at 6.

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stumble and experience trouble keeping his balance. Officer Seyler also

noticed Appellant’s speech was slow and slurred. Id. at 19-20. Officer

Seyler indicated Appellant had a cane. Appellant explained he relied on the

cane because he has knee problems. Id. at 29-31.

Officer Seyler related that he did not transport Appellant to a hospital

or other facility for a blood test as he was instructed not to do so because

duster remains in a person’s system for only a matter of minutes. Id. at 31.

Notwithstanding, Officer Seyler opined based upon his observation of

Appellant and his previous experience that Appellant had been huffing and it

was not safe for him to be operating a motor vehicle. Id. at 32-33. Officer

Seyler characterized Appellant’s level of impairment as severe based upon

the way he saw Appellant make the turn into the Sheetz parking lot. Id. at

33.

Officer Richard Faust testified he responded to the scene at which time

he saw Officer Seyler speaking with Appellant. Id. at 35-36. The officers

did not perform field sobriety tests in light of Appellant’s indication he had

bad knees and had surgeries thereon. Id. at 37-38. Officer Faust identified

Commonwealth’s Exhibit No. 1 as the can of duster confiscated from

Appellant at Sheetz. Id. at 38-39. The Commonwealth admitted the can of

duster into evidence without objection. Id. at 40.

Deborah Maurer testified she had been employed by Trader Horn and

was working on the evening of September 25, 2015. As she walked toward

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her vehicle after closing the store, she saw Appellant flailing in his car and

shouting jibberish. Id. at 44-49, 52. Ms. Maurer smelled an odd odor and

observed Appellant holding a can upside down in his mouth, although she

was unable to discern the label thereon. While she did not sell duster to

Appellant on that evening, she identified Commonwealth’s Exhibit 1 as the

brand of duster sold at Trader Horn. Id. at 50-51. Ms. Maurer followed

Appellant when he drove away to the Sheetz parking lot. Id. at 57-60.

Appellant testified in his own defense at which time he admitted he

purchased and intentionally ingested duster to help ease his knee pain. Id.

at 94-95, 110. He stated inhaling the duster made him feel very sick to his

stomach, and he waited eight (8) to ten (10) minutes to drive to Sheetz until

the effects of the duster had worn off. Id. at 98-99. Despite the fact that

he was able to provide affirmative answers to most of his counsel’s

questions, Appellant repeatedly represented on both direct and cross-

examination that he suffers from intermittent memory loss. Id. at 96, 103,

106-108.

Viewing the aforementioned evidence in a light most favorable to the

Commonwealth as verdict winner, we find the Commonwealth presented

sufficient evidence to sustain the convictions. As we have previously found

that Appellant waived his challenge to the admission of the stipulation and

corresponding jury instruction on appeal, we consider this evidence in the

context of Appellant’s sufficiency claim. As was the case in Tharp, supra, it

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is understandable under the facts herein that the District Attorney believed

the defense would have no objection to the duster being termed a

fluorocarbon as it had been entered into evidence. N.T., 8/10/16, at 136-

137. Once defense counsel lodged a direct attack on the District Attorney’s

characterization of Commonwealth’s Exhibit 1 as a “solvent or noxious

substance,” the trial court permitted the introduction of the parties’ prior

stipulation which did not constitute new evidence but, rather, corroborated

what is, in fact, the chemical makeup of duster so as to avoid a result

inconsistent with the facts revealed at trial.

Moreover, unlike the situation presented in Jemison, supra, where

an element of the offense could be proven only if the Commonwealth

accepted the stipulation, the Commonwealth herein presented evidence

independent of the parties’ pretrial stipulation that duster is a solvent or

noxious substance under 18 Pa.C.S.A. § 7303(f) to prove the charged

crimes. In addition to the eyewitness testimony and Appellant’s own

confession that he had ingested the duster and operated his motor vehicle,

the Commonwealth admitted the duster can into evidence without objection.

As the Commonwealth noted at trial, the can itself indicates it contains

fluorocarbon, one of substances enumerated in Subsection § 7303(f). N.T.,

8/10/16, at 135.

Pennsylvania Rule of Criminal Procedure 646 entitled “Material

Permitted in Possession of the Jury” provides that “(A) upon retiring, the

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jury may take with it such exhibits as the trial judge deems proper, except

as provided in paragraph (C).” Pa.R.Crim.P. 646(A).5 As such, even were

we to have determined the trial court had erred in reopening the record to

find there had been a stipulation the can of duster was a solvent and in

instructing the jury to this effect, which we have not, Appellant’s challenge

to the sufficiency of the evidence does not hinge upon the stipulation. The

jury was free to examine the ingredients and warnings on the can of duster

whose admission into evidence went unchallenged by Appellant.

Commonwealth Exhibit 1 when viewed in connection with the testimonial

evidence and Appellant’s own admissions provided the jury with sufficient

evidence to convict Appellant of DUI and Illegal Use of Solvents or Noxious

Substances. Thus, Appellant’s second issue is meritless.

Judgment of sentence affirmed.6

____________________________________________

5
Rule 646(C) Provides:
(C) During deliberations, the jury shall not be permitted to
have:
(1) a transcript of any trial testimony,
(2) a copy of any written or otherwise recorded confession
by the defendant;
(3) a copy of the information or indictment; and
(4) except as provided in paragraph (B), written jury
instructions.

Pa.R.Crim.P. 646(C).
6
This Court may affirm the trial court’s order on any valid basis. Plasticert,
Inc. v. Westfield Ins. Co., 923 A.2d 489 (Pa.Super. 2007).

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/2/2017

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