Com. v. Stemmler, S.

• Court: Superior Court of Pennsylvania
• Decided: May 8, 2024
• Docket: 358 WDA 2023
• Status: Unpublished

Opinion

J-S46036-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STEVEN KEITH STEMMLER : : Appellant : No. 358 WDA 2023

Appeal from the Judgment of Sentence Entered March 3, 2023 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0000730-2022

BEFORE: DUBOW, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED: MAY 8, 2024

Steven Keith Stemmler (“Stemmler”) appeals from the judgment of

sentence imposed after a jury found him guilty of involuntary deviate sexual

intercourse and related offenses.1 We conclude that Stemmler has failed to

preserve any issues for review and affirm.

Given our disposition, we need not summarize the full factual history of

this appeal. Briefly, the Commonwealth charged Stemmler with committing

sexual offenses against then-fifteen-year-old C.G. and then-twenty-two-year-

old A.R.2 Assistant District Attorney Adam Barr (“ADA Barr”) was the lead

prosecutor. In January 2022, before the filing of charges, and in July 2022,

before a scheduled trial date, ADA Barr and Pennsylvania State Trooper Daniel ____________________________________________

1 See 18 Pa.C.S.A. §§ 3123(a)(7), 3122.1 (b), 3125(a)(8), 3126(a)(8), 6301(a)(1)(ii).

2 The court formally dismissed the charges involving A.R. before trial. A.R., however, testified at the trial on the charges involving C.G. J-S46036-23

Poponick (“Trooper Poponick”) met with C.G. and A.R. ADA Barr took notes

at both meetings (the “January 2022 notes” and “July 2022 notes,”

respectively).

As the scheduled trial date approached, ADA Barr gave the defense a

copy of his July 2022 notes, but not his January 2022 notes. Stemmler, who

was aware that ADA Barr had met with C.G. and A.R. in January 2022, then

filed a motion to compel discovery of ADA Barr’s January 2022 notes.

Stemmler separately requested the disqualification of ADA Barr because the

defense could call him as an impeachment witness if C.G. or A.R. testified

inconsistently with statements in his notes.3

At a hearing on Stemmler’s motion to compel discovery, ADA Barr

provided the court with the original copy of his January 2022 notes for an in

camera review. See N.T., 7/18/22, at 21-22. Following its review of the

notes, the court asserted that ADA Barr’s January 2022 notes “appear[ed] to

be to be a verbatim reporting of what [C.G.] told [ADA Barr] during the

interview” and ordered the Commonwealth to provide the defense with a copy

of the January 2022 notes. See id. at 24-26; see also Order, 7/18/22, at 1.4 ____________________________________________

3 Specifically, Stemmler issued subpoenas to members of the district attorney’s office, including ADA Barr. In response to the Commonwealth’s motion to quash the subpoenas, Stemmler asked to the trial court to disqualify ADA Barr.

4 At the time of this hearing, the Commonwealth represented that it would not

pursue the charges concerning A.R. See N.T., 7/18/22, at 22. Although the January 2022 notes involved interviews with C.G. and A.R., the trial court (Footnote Continued Next Page)

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When the Commonwealth stated it would appeal the decision, the court

effectively stayed its order and sealed ADA Barr’s original January 2022 notes,

without disclosing them to the defense. See N.T., 7/18/22, at 34-38. Defense

counsel did not object.

The trial court thereafter granted the Commonwealth’s motion for an

evidentiary hearing, at which Trooper Poponick and ADA Barr testified about

the circumstances of the January 2022 interview. Defense counsel did not

request an opportunity to review the January 2022 notes to prepare for the

hearing. See N.T., 8/12/22, at 8-9.5 At the conclusion of the hearing, the

trial court reconsidered its prior decision, determined the January 2022 notes

did not contain verbatim or substantially verbatim statements, and denied

Stemmler’s motion to compel discovery. See id. at 38, 46. The court handed

ADA Barr’s original January 2022 notes back to him and stated it did not make

copies of the notes. See id. at 38, 46. Defense counsel did not ask the court

to retain a sealed copy of ADA Barr’s January 2022 notes for the record. See

id. at 38-46.6 Moreover, although the court did not expressly decide ____________________________________________

referred to a single victim, C.G.. See id. at 24; see also Trial Court Opinion, 4/20/23, at 6 n.1.

5 At the hearing, defense counsel stated that if the court determined the notes

contained verbatim or substantially verbatim statements from the interview, it would be in defense counsel’s discretion to determine if the notes were helpful. See N.T., 8/12/22, at 9.

6Defense counsel, however, apparently requested that the Commonwealth not destroy the notes pending an appeal. See Order, 8/17/22, at 1 (directing, upon Stemmler’s motion, the Commonwealth to preserve the January 2022 notes pending appeal).

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Stemmler’s request to disqualify ADA Barr, defense counsel did not pursue or

amend the request for disqualification.

The matter proceeded to trial on the charges against C.G. only, with

ADA Barr and another assistant district attorney prosecuting the case.

Defense counsel did not renew the request to disqualify ADA Barr. See N.T.,

8/15-8/16/22, at 3-48. A jury found Stemmler guilty of involuntary deviate

sexual intercourse, statutory sexual assault, aggravated indecent assault,

indecent assault, and corruption of minors. The trial court sentenced

Stemmler to an aggregate term of ten to twenty years of imprisonment.

Stemmler timely appealed, and both he and the trial court complied with

Pa.R.A.P. 1925.

Stemmler raises the following issues on appeal:

I. Did the trial court err in reversing its order to compel discovery?

II. Did the trial court err in denying the defense an opportunity to view evidence regarding [the] witness interviews, so that [Stemmler] could argue for their admission?

III. Did the trial court err in denying [the] motion to recuse [ADA Barr] after his testimony?

Stemmler’s Brief at 2 (some capitalization omitted).

We initially consider whether Stemmler preserved his issues for appeal.

Stemmler’s first issue concerns the trial court’s reconsideration of its

order to compel discovery, namely ADA Barr’s January 2022 notes from his

meetings with A.R. and C.G. He asserts that the court abused its discretion

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when reconsidering its findings that ADA Barr’s January 2022 notes contained

verbatim or substantially verbatim statement from C.G.

“It is black letter law in this jurisdiction that an appellate court cannot

consider anything which is not part of the record in the case. For purposes of

appellate review, what is not of record does not exist.” Commonwealth v.

Rosario, 248 A.3d 599, 622 (Pa. Super. 2021) (internal citations and

quotations omitted). “[T]he duty to ensure the certified record contains all

the facts and documents necessary for our review lies with the appellant.”

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008).

Here, the certified record does not contain a copy of ADA Barr’s January

2022 notes. The record indicates that defense counsel was present when the

trial court reconsidered its prior order, denied the motion to compel discovery,

and the court handed ADA Barr’s original January 2022 notes back to ADA

Barr. The court expressly stated that it had not made a copy of the notes,

and defense counsel did not ask the court to preserve the record by

maintaining a sealed copy of the notes. See N.T., 8/12/22, at 38-46.

Moreover, there is no indication that, when taking this appeal, Stemmler

requested the Commonwealth and the trial court to complete or correct the

record by sealing, certifying, and including a copy of the notes. Even after

the Commonwealth argued in its brief that Stemmler waived this issue by

failing to complete the record, see Commonwealth’s Brief at 16-24, it appears

Stemmler took no reasonable steps to correct or complete the record, or seek

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relief from this Court.7 See Pa.R.A.P. 1926. Therefore, this is not a case

where a document was inadvertently or erroneously omitted from the record.

Cf. Pa.R.A.P. 1926(b)(1) (permitting a court on its own initiative to direct the

certification and transmittal of a supplemental record where the omission

results from a “error, breakdown in processes of the court, or accident”).

It is apparent that this Court cannot meaningfully consider Stemmler’s

claim without reviewing the actual notes at issue. Cf. Commonwealth v.

Alston, 864 A.2d 539, 546 (Pa. Super. 2004) (en banc) (“Appellate courts

generally review the grant or denial of discovery requests for an abuse of

discretion”) (internal citation omitted). Stemmler has not satisfied his duty to

ensure this Court has a complete record necessary for review, and we decline

to do so on our own accord. See Commonwealth v. Preston, 904 A.2d 1,

7 (Pa. Super. 2006) (en banc). Thus, Stemmler has waived this issue, and

we will not address it. See Commonwealth v. Holston, 211 A.3d 1264,

1277 (Pa. Super. 2019) (en banc).

In his next two issues, Stemmler asserts that the trial court erred by

denying him an opportunity to inspect the January 2022 notes and by failing

to disqualify ADA Barr.

Pennsylvania Rule of Appellate Procedure 302 states, in relevant part,

“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). “It is well established that trial judges ____________________________________________

7 Indeed, Stemmler elected not to file a reply brief to respond to the Commonwealth’s assertion of waiver.

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must be given an opportunity to correct errors at the time they are made. [A]

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

erroneous, the court would have corrected.” Commonwealth v. Spone, 305

A.3d 602, 608 (Pa. Super. 2023).

Our review of the record establishes that Stemmler did not request an

opportunity to inspect the January 2022 notes when litigating his motion to

compel to discovery, nor did he not ask for a preliminary review of the notes

to argue for their admission. See N.T., 8/12/22, at 8-9 (indicating defense

counsel only argued that if the court determined the January 2022 notes “were

verbatim or substantially verbatim,” they should be turned over to the defense

to determine whether the notes were helpful). See id. at 9. Additionally,

although Stemmler had requested ADA Barr’s disqualification, that claim was

largely contingent on Stemmler’s belief that ADA Barr’s notes contained

verbatim or substantially verbatim statements from C.G. and A.R. When the

trial court found the January 2022 notes did not contain C.G.’s verbatim or

substantially verbatim statement, Stemmler did not ask the court to rule on

his request for disqualification of ADA Barr, renew his request for

disqualification, or assert a basis for disqualification independent of his claim

that the January 2022 notes contained verbatim or substantially verbatim

statements. See id. at 38-46. Accordingly, Stemmler did not afford the trial

court an opportunity to correct the errors he now raises on appeal, i.e., his

asserted right to inspect the January 2022 notes and the disqualification of

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ADA Barr. Therefore, we will not address these unpreserved issues. See

Spone, 305 A.3d at 608.

In sum, we are constrained to conclude that there are no issues

preserved in this appeal, and we affirm the judgment of sentence without

prejudice to Stemmler’s right to seek relief pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

Judgment of sentence affirmed.

FILED: 5/8/2024

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