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Commonwealth v. Schultz

Superior Court of Pennsylvania

May 4, 2015

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
PETER J. SCHULTZ, JR., Appellant

Appeal from the Judgment of Sentence September 4, 2014. In the Court of Common Pleas of Schuylkill County. Criminal Division at No(s): CP-54-CR-0000114-2012, CP-54-CR-0000117-2012, CP-54-CR-0000654-2011, CP-54-CR-0000655-2011.

BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

OPINION

Page 1117

MUNDY, J.

Appellant, Peter J. Schultz, Jr., appeals from the September 4, 2014 aggregate judgment of sentence of 52 to 104 months' imprisonment, imposed following the revocation of his state intermediate punishment (SIP) sentence. After careful review, we affirm.

A previous panel of this Court summarized the relevant factual and procedural background of this case as follows.

The Commonwealth charged Appellant with multiple counts of possession of a controlled substance, possession with intent to deliver, delivery of a controlled substance, and possession of drug paraphernalia at the above-captioned criminal docket numbers. Appellant entered a negotiated guilty plea, and on May 17, 2012, the trial court imposed a sentence of 24 months of [SIP], with 59 days of credit for time served dating to March 20, 2012. On March [7], 2014[1] shortly before the 24-month SIP sentence was set to expire, the trial court found Appellant in violation of [his SIP] and therefore ordered him to serve an additional three months.

Commonwealth v. Schultz, A.3d, 580 MDA 2014 (Pa. Super. 2015) (unpublished memorandum at 2) (footnote omitted). Appellant filed a timely notice of appeal, which was docketed in this Court at 580 MDA 2014. On January 27, 2015, this Court vacated the trial court's order and remanded for further proceedings. We held that the trial court lacked jurisdiction to enter its order, as it was done outside the 30-day period for modifications under Section 5505 of the Judicial Code. Id. at 4; see also 42 Pa.C.S.A. § 5505 (stating, " a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed[]" ). Neither party filed a petition

Page 1118

for allowance of appeal with our Supreme Court.

Notwithstanding the pendency of Appellant's appeal from its March 7, 2014 order, the trial court conducted another revocation hearing on June 12, 2014. The underlying basis for this hearing was the notification to the trial court by the Department of Corrections (DOC) that it had expelled Appellant from the SIP program. N.T., 6/12/14, at 8. At the conclusion of said hearing, the trial court revoked Appellant's SIP sentence and scheduled a resentencing hearing. Id. at 41. On September 4, 2014, the trial court imposed a new aggregate sentence of 52 to 104 months' imprisonment. On September 8, 2014, the trial court entered an order granting Appellant certain credit for time served. On September 15, 2014, Appellant filed a timely notice of appeal.[2]

On appeal, Appellant raises the following five issues for our review.

1. Whether the [trial court] committed an error of law in concluding that a Commonwealth witness was a custodian of records, thus allowing his testimony to be received and considered under the business records exception to the hearsay rule[?]
2. Whether the [trial court] committed an error of law and/or an abuse of discretion in finding [] Appellant in violation of the requirement of the [SIP] program, and thus before the [trial c]ourt for sentencing, based on hearsay testimony[?]
3. Whether the [trial court] committed an abuse of discretion in allowing the Commonwealth to re-open its case and recall a witness and elicit further testimony after the Commonwealth closed its case and [] Appellant's attorney gave a closing statement[?]
4. Whether the [trial court] committed an error of law and abuse of discretion by allowing the Commonwealth to recall a witness and elicit further testimony after the Commonwealth closed its case and [] Appellant's attorney gave a closing statement, the effect of which was to deny [] Appellant his right to counsel by allowing the Commonwealth to fill in the gaps of its case that [] Appellant's counsel had pointed out in a closing argument, thus converting [] Appellant's counsel from an advocate for [] Appellant to an adviser to the Commonwealth[?]
5. Whether the [trial court] committed an error of law in sentencing Appellant on September 4 and 8, 2014 since the evidence demonstrated that [] Appellant had completed the [SIP] program and was properly released[?]

Appellant's Brief at 4.

We elect to address Appellant's first four issues together. In his first two issues, Appellant avers that the trial court erroneously admitted hearsay evidence pursuant to the business records exception. Appellant's Brief at 7- 8. In his third and fourth issues, Appellant avers the trial court erred when it granted the Commonwealth's request to reopen the record after Appellant had given his closing argument to the trial court. Id. at 8-9. The Commonwealth and the trial court argue that none of these issues merit relief because the evidence proffered was beyond the scope of what the trial court was statutorily permitted to decide at the revocation

Page 1119

hearing. Commonwealth's Brief at 8; Trial Court Opinion, 11/6/14, at 6. We begin by noting our well-settled standard of review regarding these issues.

The admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record. Furthermore, if in reaching a conclusion the trial ...

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