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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
____________________________________________
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). J-S51001-19
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
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
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
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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
____________________________________________
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). J-S51001-19
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
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
-3- J-S51001-19
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
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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