J-S26008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    MARK GRILLI,

                             Appellant                 No. 3695 EDA 2017


        Appeal from the Judgment of Sentence Entered October 16, 2017
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-MD-001051-2016


BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED JULY 12, 2018

        Appellant, Mark Grilli, appeals from the judgment of sentence of three

to six months’ incarceration, imposed after he was convicted of indirect

criminal contempt (ICC) based on evidence that he violated a temporary

Protection From Abuse (PFA) order entered against him pursuant to the

Protection From Abuse Act, 23 Pa.C.S. §§ 6101-6122. After careful review,

we vacate Appellant’s judgment of sentence and remand for a new trial.

        The trial court summarized the procedural history of this case, as

follows:
              On October 16, 2017, [Appellant] … and [Appellant’s]
        counsel, Donald L. Vittorelli, Esquire, despite proper notice being
        given by the court, failed to appear before the undersigned for a
        hearing on [Appellant’s] one (1) count of [ICC] related to
        [Appellant’s] violation of [a] Montgomery County Temporary
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     [PFA] order indexed in 2016-06060[.]1[] Additionally, on October
     16, 2017, [Appellant] was scheduled to appear before the
     undersigned for a [PFA] hearing in order for the court to determine
     whether a final [PFA] order should be granted against
     [Appellant[.]2[]
        1 On March 30, 2016, the Honorable Arthur J. Tilson entered
        a temporary [PFA] order against [Appellant]. [Appellant’s]
        ex-girlfriend brought the [PFA] petition. On April 3, 2016,
        subsequent to the entry of the [PFA] order against
        [Appellant], [Appellant] was involved in the assault of [his]
        ex-girlfriend and another adult individual (See Docket # CR-
        148-16). [Appellant] was charged with [s]imple [a]ssault
        (M2), [r]ecklessly endangering another person (M2), and
        [h]arassment (S). On July 21, 2017, [Appellant] appeared
        before the Honorable Thomas C. Branca and pleaded guilty
        to three (3) counts of harassment and two (2) counts of
        disorderly conduct arising out of the April 3, 2016 incident.
        2 Following a hearing on October 16, 2017[,] where the
        Plaintiff[, Appellant’s ex-girlfriend,] testified immediately
        following [Appellant’s] hearing on [the ICC] charge[],
        wherein [Appellant] and his counsel failed to appear despite
        proper notice, the court issued a final [PFA] order against
        [Appellant]. The final [PFA] order is effective from October
        16, 2017 until October 15, 2020.

           Despite proper notice by the court to [Appellant] and
     [Appellant’s] counsel regarding the October 16, 2017 hearings,
     neither [Appellant] nor his counsel appeared at the hearing.
     Therefore, after trial where [Appellant] and his counsel failed to
     appear, the court found [Appellant] guilty of [ICC] on Docket[]#
     MD 1051-2016. … The court sentenced [Appellant] to undergo
     imprisonment for not less than three (3) months nor more than
     six (6) months in the Montgomery County Correctional Facility.
     The sentence was to run concurrent to all previously imposed
     sentences. [Appellant] was ordered to comply with any special
     conditions of parole imposed by the Montgomery County Adult
     Probation/Parole Department. [Appellant] was ordered to pay the
     monthly offender supervision fee. Finally, the court ordered
     [Appellant] to continue to abide by the Montgomery County [PFA]
     order docketed at 2016-06060.

                                     …



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            On October 17, 2017, [c]ounsel for [Appellant] filed two
     Motions for Reconsideration of Sentence[.]3[] In [Appellant’s]
     Motions to Reconsider Sentence, [Attorney] Vittorelli stated, as
     justification for his absence as well as justification for [Appellant’s]
     absence from the October 16, 2017 hearing, that a new employee
     at [Attorney] Vittorelli’s law office had mistakenly informed
     [Attorney] Vittorelli and [Appellant] that the court had granted
     [Appellant’s] October 13, 2017 continuance request of the
     October 16, 2017 hearing. In his Motions to Reconsider Sentence,
     [Attorney] Vittorelli requested that the court vacate the [ICC]
     sentence imposed on [Appellant] on October 16, 2017[,] and relist
     the matter for a new hearing.
        3 [Appellant] filed two (2) Motions for Reconsideration on
        October 17, 2017.           However, both Motions for
        Reconsideration are nearly identical in their averments and
        requests. In one, [Appellant] stated that he “has a viable
        defense to the charge of ICC” and he “has an eyewitness
        who was not present due to counsel’s error.” In the other,
        [Appellant] stated he “had already pled guilty to six
        summary grade counts of [d]isorderly [c]onduct and
        [h]arassment and was sentenced to 18 months of probation
        by … [Judge] Branca for the same conduct in the Criminal
        Division of this court and that [he] has “mental health
        issues.”

          On October 1[8], 2017[,] the court ordered [the
     Commonwealth] … to file a written answer/response to
     [Appellant’s] October 17, 2017 Motions for Reconsideration of
     Sentence within five (5) days.

           On October 23, 2017, … the Commonwealth’s Answer to
     Defendant’s Motion to Reconsider Sentence [was filed]. In [that]
     answer, [the Commonwealth] stated that [it] did not have any
     objection to the court[’s] granting [Appellant’s] October 17, 2017
     Motion to Reconsider Sentence. However, [the Commonwealth]
     stated in the “New Matter” portion of [its] answer that the
     Commonwealth’s primary reason for not objecting to the
     reconsideration was not due to [Appellant’s] absence, but was due
     to the absence of [d]efense counsel at the October 16, 2017
     hearing.

Trial Court Opinion (TCO), 1/18/18, at 1-4 (one footnote omitted).




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       On November 3, 2017, the trial court denied Appellant’s motions for

reconsideration of his sentence. Appellant filed a timely notice of appeal.1 He

also filed a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal, although the certified record does not show that Appellant was ordered

to file a concise statement by the trial court. On January 18, 2018, the trial

court issued a Rule 1925(a) opinion. Herein, Appellant presents one question

for our review: “Having information that [] [A]ppellant was not aware that his

trial was not continued, did the [t]rial [c]ourt err in not granting a continuance

and also err in proceeding to trial and sentencing in [Appellant’s] absence[?]”

Appellant’s Brief at 3.

       Appellant avers that his right to be present at all court proceedings was

violated when the trial court allowed him to be tried, convicted, and sentenced

in his, and his attorney’s, absence. In support, Appellant relies primarily on

Pa.R.Crim.P. 602(A) and Commonwealth v. Doleno, 594 A.2d 341 (Pa.

Super. 1991). Rule 602(A) states:

       (A) The defendant shall be present at every stage of the trial
       including the impaneling of the jury and the return of the verdict,
       and at the imposition of sentence, except as otherwise provided
       by this rule. The defendant’s absence without cause at the time
       scheduled for the start of trial or during trial shall not preclude
____________________________________________


1 As the trial court points out, Appellant’s notice of appeal was improperly filed
from the November 3, 2017 order denying his motions for reconsideration of
his sentence. In a criminal case, an appeal properly lies from the judgment
of sentence, which is made final by the denial of post-sentence motions. See
Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa. Super. 2003) (en
banc) (citing Commonwealth v. Chamberlain, 658 A.2d 395, 397 (Pa.
Super. 1995). Thus, we have corrected the caption in this case accordingly.
See Dreves, supra.

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      proceeding with the trial, including the return of the verdict and
      the imposition of sentence.

Pa.R.Crim.P. 602(A) (emphasis added).       This Court has clarified that the

Commonwealth bears the burden of proving, by a preponderance of the

evidence, that a defendant is absent without cause. See Commonwealth v.

Kelly, 78 A.3d 1136, 1143 (Pa. Super. 2013).

      In Doleno, the defendant failed to appear at his trial de novo, conducted

after he appealed from his conviction by a District Justice of certain vehicular

violations. Pursuant to Pa.R.Crim.P. 1117(a), the predecessor of Rule 602(A),

the trial was conducted in Doleno’s absence, and he was ultimately convicted

and sentenced to pay a fine and the costs of prosecution. Doleno filed a timely

motion for a new trial, arguing “that his failure to appear for trial had been

caused by an inadvertent error of his lawyer, who had improperly recorded

the trial date.” Id. at 342. Despite conducting a hearing at which Doleno’s

lawyer attested that his mistake had caused Doleno’s absence, the trial court

denied Doleno’s request for a new trial.

      On appeal, we initially held that because Doleno had failed to appear at

trial “without giving prior excuse or notice,” the trial court did not err by

conducting the trial in his absence. Id. at 343. Nevertheless, we concluded

that “the fact that he was tried in absentia did not preclude [Doleno] from

attempting to demonstrate post-trial that a valid reason existed for his failure

to appear.” Id. Viewing the burden of proof as resting with Doleno, as Rule

1117(a) required, we held that he had “established successfully that his

absence from trial was not ‘without cause[,]’” as “[h]is failure to appear at

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trial resulted from an error by counsel” and “was not a voluntary act, but one

that was unintentionally caused by counsel’s error.” Id. at 344. We reasoned

that, “[u]nder such circumstances, it would be manifestly unfair to deprive

[Doleno] of the opportunity to appear and present a defense to the charge

against him.” Id.

      After review of the record before us, we discern no meaningful difference

between Doleno and the facts of Appellant’s case. As in Doleno, Appellant

filed a post-sentence motion asserting that his failure to appear at trial was

due to a mistake by his counsel, Attorney Vittorelli, who had incorrectly

informed Appellant that the court had continued the proceedings. Notably,

the trial court never filed and served on counsel and/or Appellant any order

denying Appellant’s motion for a continuance; instead, the court states in its

opinion that its “secretary notified [Attorney] Vittorelli’s office by telephone at

1:30 p.m. [on October 13, 2017,] that [Appellant’s] request for a continuance

… was denied.” TCO at 11. Because no order was filed or served on counsel

and/or Appellant, the record does not bely Attorney Vittorelli’s claim that he

believed the continuance had been granted, and that he passed this

misinformation on to Appellant. We also stress that the Commonwealth did

not object to the court’s granting Appellant’s post-sentence motion and

retrying/resentencing him.

      Additionally, the facts of Appellant’s case offer more support for granting

him a new trial than the circumstances in Doleno, as here, Attorney Vittorelli

notified the court, before Appellant’s trial commenced, that he and Appellant

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would be absent because of counsel’s mistaken belief that the continuance

had been granted. Specifically, as the trial court recognizes in its opinion,

       [Attorney] Vittorelli telephoned th[e] court’s chambers at 8:18
       a.m. on the morning of October 16, 2017 and stated to th[e]
       court’s secretary that a member of [Attorney] Vittorelli’s staff
       mistakenly told both [Appellant] and [Attorney] Vittorelli that the
       hearing had been continued. [Attorney] Vittorelli further stated
       that, instead of planning to arrive at the Montgomery County
       Courthouse for the scheduled 10:45 a.m. hearings, [he] was on
       his way to a hearing in Chester County, Pennsylvania, and that
       pending the outcome in his Chester County matter, he would try
       to appear before this court.[2] [Attorney] Vittorelli stated that
       [Appellant] would definitely not be appearing before the
       undersigned at the 10:45 a.m. hearings.

TCO at 11; see also N.T. Trial/Sentencing, 10/16/17, at 3-4 (the court’s

acknowledging that Attorney Vittorelli had notified the court that morning that

he and Appellant would be absent, and that he provided a reason for their

failure to appear).

       Nevertheless, the court decided to proceed with Appellant’s trial and

sentencing in his absence, explaining:

       [The Court:] [A]pparently, [Attorney] Vittorelli believes that if he
       asks for a continuance, it will be automatically granted, which it
       was not. It was denied by me because this has been continued a
       number of times before, and it’s getting old at this point.


____________________________________________


2 We note that Appellant’s trial began at 10:47 a.m., and his sentencing
hearing concluded at 11:20 a.m. See N.T. Trial/Sentencing at 25. Attorney
Vittorelli claims in Appellant’s brief that he arrived at the Montgomery County
Courthouse “at approximately 11:40 a.m. and was notified by [the trial court]
that [Appellant] was found guilty in his absence of the criminal charge of ICC
and sentenced by the [court] to 3 to 6 months of incarceration….” Appellant’s
Brief at 6.


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          So I’m prepared to proceed, and I gave him an extra five
     minutes. It’s now between ten of and five of 11. I guess the
     Commonwealth’s prepared to proceed.
                                  …
           So let’s go on with the ICC. And again, I’m going to state,
     I’ve waited a few extra minutes and no one has appeared,
     [Appellant] nor [Attorney] Vittorelli, and apparently they gave
     themselves a continuance on this matter, but I don’t agree with
     that. It’s not continued. I said it wasn’t continued, and we’re
     going on with it.

N.T. Trial/Sentencing at 4, 5. Unlike in Doleno, the burden of proving that

Appellant’s absence was ‘without good cause’ was on the Commonwealth, see

Kelly, supra, yet at no point did it present any evidence that Attorney

Vittorelli believed that his continuance request would be ‘automatically

granted,’ nor any proof that counsel and/or Appellant actually knew that the

continuance request had been denied and still chose not to appear.

     Given this record, and our decision in Doleno, we conclude that to

uphold Appellant’s conviction and sentencing would be manifestly unfair under

these circumstances. See also Commonwealth v. McLaurin, 437 A.2d 440,

445 (Pa. Super. 1981) (finding that the defendant demonstrated good cause

for his absence from a suppression hearing where his counsel “neglected to

inform [him] to be in court on the date set for the hearing”); Commonwealth

v. Graves, 356 A.2d 813, 814 (Pa. Super. 1976) (concluding that the

defendant was not “absent without cause” where “he was not present …

because his attorney advised him that he could leave”). Moreover, the trial

court’s reliance on Commonwealth v. King, 695 A.2d 412 (Pa. Super. 1997),

is unavailing, as King failed to appear for trial four times before the court



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finally tried him in absentia. See King, 695 A.2d at 413-14. Clearly, King is

not analogous to the case at hand.        Accordingly, we vacate Appellant’s

judgment of sentence and remand for a new trial.

      Judgment of sentence vacated. Case remanded for further proceedings.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/18




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