Com. v. Schoenfeld, J.

• Court: Superior Court of Pennsylvania
• Decided: March 29, 2023
• Docket: 783 WDA 2022
• Status: Unpublished

Opinion

J-A08044-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUSTIN D. SCHOENFELD : : Appellant : No. 783 WDA 2022

Appeal from the Judgment of Sentence Entered May 12, 2022 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0001055-2020

BEFORE: STABILE, J., SULLIVAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: MARCH 29, 2023

Justin D. Schoenfeld (Schoenfeld) appeals from the judgment of

sentence imposed in the Court of Common Pleas of Cambria County (trial

court) after a jury convicted him of two counts of endangering the welfare of

children (EWOC). On appeal, he challenges (1) the sufficiency and weight of

the evidence for his convictions, and (2) the trial court’s denial of his motion

for mistrial based on a police officer’s testimony that he was committed for a

mental health evaluation. After review, we affirm.

I.

On August 11, 2020, around 10:00 p.m., Schoenfeld’s neighbor called

the police after hearing several gunshots. When the neighbor went out to

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* Retired Senior Judge assigned to the Superior Court. J-A08044-23

investigate, he heard the shots getting closer and eventually saw muzzle

flashes near his property line with Schoenfeld. When the police arrived,

Schoenfeld told them that he had been firing at targets outside and that his

firearms were inside his trailer now.

The police next spoke to Barbara Weakland (Weakland), who lived with

Schoenfeld in the trailer with their two sons, who were ages five and seven.

When asked if Schoenfeld had any weapons, Weakland replied, “Yes, he has

them there inside the trailer.” As the police entered the trailer, Schoenfeld’s

two children were already inside and heard the police and Weakland discuss

getting the firearms. At that point, the boys said, “we’ll get the guns for you,”

and went to grab the firearms, which were no more than six feet away. Upon

hearing this, the police yelled for them to stop and retrieved two firearms from

behind a recliner in the living room: one an AK-47 style weapon and the other

a loaded .9 mm handgun. At trial, Weakland admitted that Schoenfeld put

the firearms behind the recliner because he knew the police were coming.

At the end of trial, the jury found Schoenfeld guilty of two counts of

EWOC and determined that he created a substantial risk of death or serious

bodily injury, thus raising the grading of the offenses to third-degree felonies.1

1 18 Pa.C.S. §§ 4304(a)(1), (b)(1)(iii). The jury also found Schoenfeld guilty of disorderly conduct under 18 Pa.C.S. § 5503(a)(4) and acquitted him of three counts of recklessly endangering another person under 18 Pa.C.S. § 2705. The trial court, meanwhile, found him guilty of summary harassment under 18 Pa.C.S. § 2709(a)(3).

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The trial court sentenced him to serve an aggregate 12 to 24 months in state

prison followed by five years’ state probation. Schoenfeld did not file any

post-sentence motions but did file a timely pro se notice of appeal, even

though he was still represented by counsel.2 After permitting counsel to

withdraw, the trial court appointed new counsel, following which both he and

the trial court complied with Pa.R.A.P. 1925. On appeal, Schoenfeld raises

two claims for our review on appeal.

1. The Trial Court erred when it denied the [Schoenfeld’s] Motion for Judgment of Acquittal as it pertained to the two counts of Child Endangerment (18 Pa. C.S.A. § 4304(A)(1)) (F-3); the weight and sufficiency of the evidence presented by the Commonwealth did not warrant a conviction.

2. The Trial Court erred when it denied the [Schoenfeld’s] Motion for a Mistrial when a Commonwealth witness made reference to [Schoenfeld] being committed to a mental health facility.

Schoenfeld’s Brief at 6.

II.

In his first issue, Schoenfeld challenges both the sufficiency and the

weight of the evidence for his convictions. Preliminarily, we remind

Schoenfeld that sufficiency and weight claims are distinct.

2 The general prohibition against hybrid representation does not apply to a timely pro se notice of appeal. See Commonwealth v. Williams, 151 A.3d 621,624 (Pa. Super. 2016) (explaining that because a notice of appeal protects constitutional rights, it is distinguishable from other filings that require counsel, and this Court is required to docket a pro se notice of appeal despite the appellant being represented by counsel).

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The distinction between these two challenges is critical. A claim challenging the sufficiency of the evidence, if granted, would preclude retrial under the double jeopardy provisions of the Fifth Amendment to the United States Constitution, and Article I, Section 10 of the Pennsylvania Constitution, whereas a claim challenging the weight of the evidence if granted would permit a second trial.

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.

A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence[ ] concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000). “A true

weight of the evidence challenge concedes that sufficient evidence exists to

sustain the verdict but questions which evidence is to be believed.”

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Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa. Super. 2006) (citation

omitted).

We first consider Schoenfeld’s sufficiency challenge to his EWOC

convictions. Under our Crimes Code, the offense of EWOC is defined as

follows: “A parent, guardian or other person supervising the welfare of a child

under 18 years of age, or a person that employs or supervises such a person,

commits an offense if [she] knowingly endangers the welfare of the child by

violating a duty of care, protection or support.” 18 Pa.C.S. § 4304(a)(1). The

phrase “person supervising the welfare of a child” means a person “other than

a parent or guardian that provides care, education, training or control of a

child.” Id. at (a)(3). To convict a defendant of EWOC, the Commonwealth

must establish that he is aware of his duty to protect the child; is aware that

the child is in circumstances that could threaten the child’s physical or

psychological welfare; and has either failed to act or has acted so weak that

such actions cannot reasonably be expected to protect the child’s welfare.

See Commonwealth v. Vela-Garrett, 251 A.3d 811, 815 (Pa. 2021).

We further note that child welfare statutes such as EWOC are designed

to cover a broad range of conduct in order to safeguard the welfare and

security of children. See Commonwealth v. Krock, 282 A.3d 1132, 1137

(Pa. Super. 2022). In determining whether a defendant’s conduct violates

Section 4304, “the common sense of the community, as well as the sense of

decency, propriety, and the morality which most people entertain is sufficient

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to apply the statute to each particular case, and to individuate what particular

conduct is rendered criminal by it.” Id. (citation omitted). Section 4304 also

does not require the actual infliction of physical injury or include a requirement

that the child be in imminent threat of physical harm. Id. at 1139. The terms

of the statute are “necessarily drawn broadly to capture conduct that ...

involves the endangering of the physical or moral welfare of a child by an act

or omission in violation of a legal duty.” Commonwealth v. Lynn, 114 A.3d

796, 819 (Pa. 2015) (citation omitted). Finally, the language employed as to

the endangerment of a child's welfare and a person's duty of care to that child

are not esoteric and are, instead, “easily understood and given context by the

community at large.” Id. at 818 (citation omitted).

Schoenfeld first asserts that there was insufficient evidence for the jury

to find that the children were in danger because Weakland was also in the

trailer and was supervising them when the police arrived. For his argument,

Schoenfeld focuses on this portion of Weakland’s testimony.

Q. When the police came to the house, did they find firearms in the house?

A. They did.

Q. And where were those firearms in – that they found in the house in relation to the children?

A. They were in my living room on the floor behind a recliner.

Q. And were you supervising your children?

A. Yes. I was right there.

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Q. And at that point, were any of them touching the firearms?

A. No.

Q. Would you have allowed them to grab the firearms?

A. No. No.

Q. And at any point during that time when the firearms were there, did you feel the need to move the firearms because they were unsafe in the proximity that the children were?

A. Did want to, no. I didn’t want to go near them.

Q. Did you feel at any point the children were endangered by the proximity of the firearms?

N.T., 3/7/22, at 65-66 (cleaned up).

Thus, Schoenfeld’s argument centers on Weakland’s testimony that the

children were never really in danger of the nearby firearms because she was

supervising them and would not have let them go near the firearms, even

though they were near the children and in open view behind the recliner.

This argument, however, essentially asks us to credit Weakland’s

subjective opinion that the children were safe over the jury’s determination

that Schoenfeld placed the children in danger by leaving two firearms (one of

which was loaded) only a few feet away from them out in the open. As the

trial court astutely explained in rejecting this argument in its Rule 1925(a)

opinion:

The evidence presented at trial established that Schoenfeld placed a loaded handgun in an area easily accessible to his children ages five and seven and that the children were left unsupervised in the

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area where the handgun was located while the parents were outside the residence. This evidence was sufficient to allow the jury to consider these charges and determine if the conduct met the statutory definition of EWOC by the application of the “common sense of the community” standard []. It was for the jury to determine the effect of the presence of a second unloaded firearm and the level of supervision being provided at the time in determining whether this standard was violated. Accordingly, there is no merit to this allegation of error.

Trial Court opinion at 7.

We have little to add to this discussion except to emphasize that

Weakland apparently spoke to the police outside before taking them inside to

retrieve the firearms since she told them that Schoenfeld “has them there

inside the trailer.” See N.T. at 74. As a result, there was evidence to support

that the children were left unsupervised with the firearms in the trailer for a

period of time before Weakland and the police entered the trailer to retrieve

the firearms.

Moreover, Weakland readily admitted that Schoenfeld put the firearms

behind the recliner but left them in open view. Id. at 68. Indeed, as the

police officer who entered the trailer confirmed, the children knew where the

firearms were and were only six feet away from them when they tried to

retrieve them. Id. at 75-76. Consequently, under these circumstances, we

find that the Commonwealth presented sufficient evidence for the jury to find

that Schoenfeld threatened his children’s physical welfare by leaving a loaded

firearm out in the open only a few feet away them. See Commonwealth v.

Capriotti, 2021 WL 3836846, *9 (Pa. Super. August 27, 2021) (unpublished

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memorandum) (finding sufficient evidence existed to convict defendant of

EWOC where he left a loaded firearm on a closet shelf in his 14-year-old son’s

bedroom).3

As for Schoenfeld’s weight of the evidence claim,

[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[.] Failure to properly preserve the claim will result in waiver, even if the trial court addresses the issue in its opinion.

Commonwealth v. Rivera, 238 A.3d 482, 497 (Pa. Super. 2020) (some

internal citations omitted).

As noted, Schoenfeld never filed a post-sentence motion challenging the

jury’s verdict as being against the weight of the evidence. As a result, his

claim is waived. Even if preserved, though, we would find his claim meritless,

as there are no facts that are so clearly of greater weight that to ignore them

or to give them equal weight with all the facts is to deny justice. Indeed, as

discussed, while Weakland subjectively felt that the children were not in

danger by having a loaded firearm nearby, there was also evidence that the

children were left unsupervised while Weakland and Schoenfeld were still

outside and, what is more, that the children knew where the firearms were

because one of them tried to retrieve them when the police entered the

3 See Pa.R.A.P. 126(b) (providing that unpublished non-precedential memorandum decisions of the Superior Court filed after May 1, 2019, may be cited for persuasive value).

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residence. Accordingly, even if it had been properly preserved, his claim is

meritless.

III.

Schoenfeld also alleges that the trial court abused its discretion in

denying a motion for mistrial that he made after a police officer testified that

Schoenfeld was committed for a mental health evaluation, even though the

trial court promptly gave a curative instruction.

The trial court concisely summarized the facts pertaining to this claim:

At the end of a lengthy response to a question from the Court, [Officer] Sanders testified, “I kind of thought something was a little bit strange with that so that’s why I said later on when I had called Crisis, we took him down to the hospital. The Crisis worker signed the papers committing —.” N.T. 3/7/22 p. 92. Defense counsel immediately objected to this testimony and the objection was sustained. Id. pp. 92-94. The Court then directed the jury to disregard any testimony related to medical treatment but that they could consider the other portion of [Officer] Sanders’ answer. Id. pp. 93-94. In denying the Motion the Court explained that it believed the prompt curative instruction resolved the matter but afforded counsel the opportunity to request additional instruction on the issue during the final jury instruction. Id. pp 102-03.

The Court stated that such additional instruction was at defense counsel’s discretion but cautioned that it may serve to highlight the testimony to the jury. Id. Defense counsel agreed stating that “[y]eah. And there’s even an argument, I think, Your Honor, that it was in such passing that so -- said in such a low voice, I don’t even know if everybody heard it to be honest.” Id. p. 103. Finally, defense counsel elected to have no further instruction provided to the jury on the issue. Id. p. 134.

TCO at 8-9.

We note that:

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the remedy of a mistrial is an extreme one. ... It is primarily within the trial court’s discretion to determine whether Appellant was prejudiced by the event that forms the substance of the motion. Finally, it must be remembered that a mistrial is required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial trial.

Commonwealth v. Lease, 703 A.2d 506, 508 (Pa. Super. 1997) (citations

omitted). A mistrial is, therefore, only warranted when the prejudice to the

movant cannot be ameliorated to ensure a fair trial. “A mistrial is not

necessary where cautionary instructions are adequate to overcome any

possible prejudice.” Commonwealth v. Cash, 635 Pa. 451, 137 A.3d 1262,

1273 (2016) (citation omitted).

After review, we find no relief due on this claim. As the trial court

explains, it sustained the objection and instructed the jury to disregard the

police officer’s fleeting reference to Schoenfeld being committed for mental

health at the hospital. As we have often explained, juries are presumed to

follow the trial court’s cautionary instructions, and we find noting in the record

that would cause us to depart from that well-established axiom here. See

Commonwealth v. Fletcher, 41 A.3d 892, 896 (Pa. Super. 2012) (holding

that a mistrial was properly denied when, during a two-day jury trial with

multiple eyewitnesses, the Commonwealth asked an improper question on

cross-examination and a cautionary instruction was issued). Accordingly, we

find no abuse of discretion related to the trial court’s denial of Schoenfeld’s

motion for mistrial.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/29/2023

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