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Commonwealth v. Boniella

Superior Court of Pennsylvania

March 22, 2017

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DAVID ALBERT BONIELLA Appellant

         Appeal from the Judgment of Sentence February 24, 2016 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-SA-0000144-2015

          BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

          OPINION

          LAZARUS, J.

         David Albert Boniella appeals pro se, from the judgment of sentence entered in the Court of Common Pleas of Fayette County, following his conviction of the summary offense of disorderly conduct. Upon review, we affirm.

The trial court summarized the relevant facts of this matter as follows:
On August 20, 2015, Appellant arrived at Mount Macrina Manor (hereinafter "Mt. Macrina") nursing home in Uniontown, Fayette County, Pennsylvania[, ] to attend a care plan meeting about his mother, who was a resident at the facility. Jolynn Meyers, an administrator at Mt. Macrina, testified that [Boniella's] mother did not want [Boniella] present at the meeting. Unsatisfied with this news, [Boniella] went up the hall and attempted to enter his mother's room where the meeting was taking place. Ms. Meyers blocked the door by standing in front of it; however, [Boniella] tried to reach past her and eventually entered the room, causing a heated discussion between [Boniella] and a member of his family. Ms. Meyers testified about [Boniella]:
[A]nd several times he was very loud. At one point in time he pushed me, and even with my security people that I had there, he wouldn't stop. We asked him to leave; he wouldn't leave. And it escalated. There [were] . . . other people in the hall; it was loud and then I instructed my staff just to call the police and have them come.
Ms. Meyers further testified that several members of the Mt. Macrina staff were involved in attempting to calm [Boniella] down and that the situation disrupted other residents of the facility.

Trial Court Opinion, 1/17/17, at 2 (citation omitted).

         On November 16, 2015, Magisterial District Judge Wendy D. Dennis convicted Boniella of disorderly conduct[1] and harassment.[2] On December 11, 2015, Boniella filed a notice of appeal seeking a de novo trial in the Court of Common Pleas. On February 24, 2016, after a summary hearing before the Honorable Joseph M. George, Jr., Boniella was found guilty of disorderly conduct and not guilty of harassment. Boniella was ordered to pay a $50 fine and court costs.

         Boniella filed a timely notice of appeal, after which the trial court ordered him to file a concise statement of errors complained on appeal pursuant to Pa.R.A.P. 1925(b). Boniella failed to comply with the order. Upon review of the record, this Court determined that the order directing Boniella to file the Rule 1925(b) statement had been returned to the trial court as "undeliverable." The order had been re-mailed to an updated address, but Boniella alleged he had never received it. On this basis, we entered an order remanding this matter to the trial court to determine whether service had been effectuated.

         The trial court issued a new Rule 1925(b) order on November 21, 2016, requiring Boniella to file a concise statement within 21 days. Boniella filed his statement on December 13, 2016. On appeal, Boniella challenges the sufficiency of the evidence and claims that the court erred in denying his request for court-appointed counsel.[3]

         We first must address the consequences of Boniella's untimely filing of his concise statement. Boniella had until December 12, 2016, to file his statement, but did not do so until the next day. We have stated that "where the trial court addresses the issues raised in an untimely Rule 1925(b) statement, we need not remand but may address the issues on their merits." Commonwealth v. Brown, 145 A.3d 184, 186 (Pa. Super. 2016). See also Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en banc) ("[I]f there is an untimely filing, this Court may decide the appeal on the merits if the trial court had adequate opportunity to prepare an opinion addressing the issues being raised on appeal").

         Critically, however, we note that Brown and Burton apply to counseled defendants, rather than those proceeding pro se. This is because counsel can be considered to be ineffective per se for failing to file a timely Rule 1925(b) statement. See Pa.R.A.P. 1925(c)(3) ("If an appellant in a criminal case was ordered to file a Statement and failed to do so, such that the appellate court is convinced that counsel has been per se ineffective, the appellate court shall remand for the filing of a Statement nunc pro tunc[.]"); see also Burton, 973 A.2d at 433 (untimely filing of Rule 1925(b) statement by counsel is per se ...


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