J-S66011-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MAURICE BATTLE,

Appellant No. 483 MDA 2014

Appeal from the Judgment of Sentence Entered January 29, 2014

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): 

CP-40-CR-0001445-2011

CP-40-CR-0001471-2011

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 22, 2014

Appellant, Maurice Battle, appeals from the judgment of sentence of 3-

12 months’ incarceration and a consecutive term of 12 months’ probation, 

imposed following his conviction for drug-related offenses. Appellant claims 

that the verdict was against the weight of the evidence and alleges that the 

Commonwealth engaged in prosecutorial misconduct. After careful review, 

we affirm. 

On January 25, 2011, Corporal Adam Christian (Christian), an 

undercover officer, and a confidential informant (CI) went to the home of 

Sabra Carpenter (Carpenter) in Hannover Township, where the CI and 

Christian had arranged to purchase crack cocaine. Once they arrived, 

Carpenter made a short phone call and then told Christian and the CI that 
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“her guy” would arrive shortly. Within twenty minutes, an extremely tall 

black male with dreadlocks, later identified as Appellant by Christian, 

showed up at Carpenter’s home. Christian gave $150 to Carpenter, who in 

turn gave that money to Appellant. Appellant delivered a bag of crack 

cocaine to Carpenter, and Carpenter then gave the bag to Christian. After 

he received the bag, Christian purchased an additional $50 of crack cocaine 

from Appellant, again using Carpenter as an intermediary. On February 3, 

2011, Christian and the CI returned to Carpenter’s home intending to 

purchase more crack cocaine. Carpenter contacted Appellant, and Appellant 

came to her home. Again using Carpenter as an intermediary, Christian 

purchased $210 of crack cocaine from Appellant.

Officer Stefanowicz provided surveillance for both drug buys. 

Stefanowicz testified that, on January 25, 2011, he saw a black male arrive 

and subsequently leave Carpenter’s home in a Chevy. On February 3, 2011, 

Stefanowicz immediately recognized the same male arrive in the same 

vehicle at Carpenter’s home. On the second occasion, he followed the Chevy 

when it left Carpenter’s home and stopped it after he observed a speeding 

violation. Appellant was only given a verbal warning for the speeding 

violation, but Stefanowicz took the opportunity to photograph Appellant’s 

license, thus confirming his identity. Appellant was subsequently 

apprehended in New Jersey after a warrant was issued for his arrest. 

Appellant testified that he never sold nor used crack cocaine at any 

time in his life. He believed that he had been racially profiled by Stefanowicz 
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when he was stopped for speeding on February 3, 2011, as he denied having 

exceeded the speed limit. Appellant opined that Stefanowicz had framed 

him in order to cover up that violation of his civil rights. 

After Appellant’s first trial ended with a hung jury, he was convicted by 

a second jury of possession of a controlled substance, delivery of a 

controlled substance, and conspiracy for the events that occurred on January 

25, 2011 (CP-40-CR-0001445-2011). He was convicted of identical charges 

for the events of February 3, 2011 (CP-40-CR-0001471-2011). On January 

29, 2014, Appellant was sentenced to 3-12 months’ incarceration for his 

delivery conviction at 1445-2011 and a consecutive term of 12 months’ 

probation for his delivery conviction at 1471-2011. He did not file a postsentence motion.

Appellant filed a timely, consolidated notice of appeal on February 12, 

2014, from the sentences imposed at 1445-2011 and 1471-2011. On March 

10, 2014, Appellant complied with the trial court’s February 18, 2014 order 

directing him to file a Pa.R.A.P. 1925(b) statement. The Commonwealth 

filed a response on March 13, 2014. The trial court then issued an opinion 

pursuant to Rule 1925(a) on April 29, 2014. 

Appellant now presents the following questions for our review:

A. Whether the Assistant District Attorney committed 

prosecutorial misconduct when[,] during crossexamination, he called [Appellant]’s direct testimony a 

“performance?” 

B. Whether the verdicts were against the weight of the 

evidence?
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Appellant’s Brief at 4.

Appellant’s first claim stems from a comment made by the prosecutor 

that Appellant’s testimony was a “performance,” which the prosecutor made 

at the beginning of his cross-examination of Appellant:

Q[Assistant District Attorney Zola][:] So, Mr. Battle, just so I’m 

clear - - and, I know you put on a great performance there on 

the end. 

MR. MARSILIO [Appellant’s counsel]: Objection, Your 

Honor. Move to strike.

THE COURT: Sustained. It’s striken. 

N.T., 10/21/13, at 138.

As is clear from the transcript, the trial court sustained Appellant’s 

objection to the prosecutor’s misconduct and struck it from the record. 

However, the cross-examination of Appellant continued without Appellant’s 

making any request for a mistrial, or any other form of relief, based upon 

the prosecutor’s unprofessional commentary. Moreover, Appellant fails to 

cite where in the record that he requested any additional relief based upon 

the prosecutor’s misconduct. 

It is well established that trial judges must be given an 

opportunity to correct errors at the time they are made. See 

Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272, 274 

(1974). “[A] party may not remain silent and afterwards 

complain of matters which, if erroneous, the court would have 

corrected.” Id., quoting Commonwealth v. Marlin, 452 Pa. 

380, 305 A.2d 14, 16 (1973) (citations omitted). Even where a 

defendant objects to specific conduct, the failure to request a 

remedy such as a mistrial or curative instruction is sufficient to 

constitute waiver. See, e.g., Commonwealth v. Jones, 501 

Pa. 162, 460 A.2d 739 (1983) (claim of prosecutorial misconduct 

waived where defense counsel immediately objected to the 
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prosecutor's conduct but failed to request mistrial or curative 

instructions); Commonwealth v. Chimenti, 362 Pa.Super. 

350, 524 A.2d 913, 921 (1987) (issue was waived where 

defense counsel objected to a question posed by the prosecutor 

but failed to ask the trial judge to do anything further after the 

question had been answered).

Commonwealth v. Strunk, 953 A.2d 577, 579-80 (Pa. Super. 2008) 

(emphasis added). 

In the instant matter, Appellant’s counsel objected to the prosecutor’s 

unprofessional conduct, and was immediately granted the relief he 

requested. He did not request a curative instruction, nor did he move for a 

mistrial. Accordingly, Appellant’s claim that he should be granted a new trial 

based upon the prosecutor’s comment is waived. Id. at 579. 

Next, Appellant asserts that the verdicts at 1445-2011 and 1471-2011 

were against the weight of the evidence. It is axiomatic that:

[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; Commonwealth 

v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure to 

properly preserve the claim will result in waiver, even if the trial 

court addresses the issue in its opinion. Commonwealth v. 

Sherwood, 603 Pa. 92, 982 A.2d 483, 494 (2009).

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012).

Instantly, Appellant did not file a post-sentence motion, nor does the 

record reveal that Appellant preserved his claim “by a written motion before 

sentencing, or orally prior to sentencing.” Id. Consequently, this issue has 

also been waived. Id. 
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Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/2014