from the Judgment of Sentence February 24, 2016 In the Court
of Common Pleas of Fayette County Criminal Division at No(s):
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.
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
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
Trial Court Opinion, 1/17/17, at 2 (citation omitted).
November 16, 2015, Magisterial District Judge Wendy D. Dennis
convicted Boniella of disorderly conduct and
harassment. 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
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
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.
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").
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 ...