J-S35038-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD KENNETH AGNEW, II 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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. 
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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 

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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

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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 

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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 crossexamination 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 

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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