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Commonwealth v. Myers

Superior Court of Pennsylvania

February 21, 2014


Submitted: August 26, 2013.

Appeal from the Judgment of Sentence of the Court of Common Pleas, Chester County, Criminal Division, No.: CP-15-CR-0000099-2012. Before MAHON, J.

Stuart R. Crichton, West Chester, for appellant.

Nicholas J. Casenta, Jr., Assistant District Attorney and Erik T. Waschburger, Assistant District Attorney, West Chester, for Commonwealth, appellee.



Page 287


Matthew Myers challenges the judgment of sentence entered on October 4, 2012. For the reasons that follow, we affirm Myers' judgment of sentence, but remand for further proceedings concerning Myers' bail status.

The trial court has provided the following account of the factual history underlying Myers' conviction:

On May 13, 2011, [Myers'] Cadillac DeVille was towed to Pep Boys in Exton, Pennsylvania, at the request of [Myers]. A new alternator was installed in [Myers'] vehicle and an extended warranty was sold with the alternator. The total cost for work and labor was $605.80. Before the work was completed on the vehicle, the Assistant Service Manager, Robert McManus, spoke with [Myers] to inform [him] what was wrong with the vehicle and to obtain verbal authorization from [Myers] to proceed with fixing the vehicle. [Myers] was informed of the repair costs at that time. [Myers] provided the verbal authorization

Page 288

necessary for [Pep Boys] to fix the vehicle. On May 14, 2011, [Myers] arrived at Pep Boys to retrieve his vehicle. Andrew Benes, a service advisor at Pep Boys, was working the front desk on that day and presented the work order to [Myers]. The work order reflected the total cost of repairs of $605.80. [Myers] did not dispute the bill. [Myers] patted his jacket and pants pockets as if searching for a wallet and then told Mr. Benes that his checkbook was in his vehicle. [Myers] asked Mr. Benes for his car keys so that he could retrieve the checkbook from his car. Mr. Benes gave [Myers] his keys so that [Myers] could retrieve his checkbook. [Myers] walked to his vehicle and entered on the passenger side of the vehicle. While in the passenger seat, [Myers] rifled through his glove box. [Myers] then shut the passenger door and slid over to the driver's seat. When [Myers] started the car, Mr. Benes realized that [Myers] was about to drive away and Mr. Benes ran outside and tried to wave [Myers] down. As he sped away, [Myers] made eye contact with Mr. Benes, waved and smiled. Mr. Benes immediately contacted the police. Additionally, Mr. Benes and his supervisor attempted to contact [Myers] by phone and left voice messages, but [Myers] never responded. [Myers] never returned to Pep Boys.

Trial Court Opinion (" T.C.O." ), 2/8/2013, at 1-2 (record citations omitted).

Based upon the above, evidence, on August 16, 2012, Myers was convicted by a jury of theft of services, theft by unlawful taking or disposition, and receiving stolen property.[1] Myers was charged based upon the allegation that, after a Pep Boys service station repaired his car, he drove away from the facility without paying for the parts and services rendered.

On October 4, 2012, Myers was sentenced in the standard range of the sentencing guidelines to an aggregate six to twenty-three months' incarceration, to be followed by two years' probation. On October 5, 2012, Myers filed post-sentence motions. Among his claims for relief, Myers asked the court to defer his reporting date and asserted a request for bail pending appeal. Post Sentence Motion for Reconsideration, for Appointment of Counsel, 10/5/2012, at 2-3 ¶ ¶ 6-10 (unpaginated). The trial court denied Myers' motion on the same day.[2] On October 17, 2012, Myers filed a notice of appeal, and, on October 22, 2012, new counsel was appointed for the purpose of pursuing that appeal.

On October 23, 2012, the trial court ordered Myers to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one days. On November 7, 2012, Myers filed a motion requesting an extension of the time to file his Rule 1925 statement, which was granted by trial court order entered on November 8, 2012. In that order, the trial court afforded thirty additional days from that date for Myers to file his concise statement. Myers filed his concise statement on December 12, 2012.

We pause to note that, unfortunately, the order extending the time for filing of the Rule 1925(b) statement is ambiguous on its face. The November 8, 2012 ...

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