J-S73027-16

                              2017 Pa Super 75



COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DAVID ALBERT BONIELLA

                         Appellant                   No. 358 WDA 2016


          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 BY LAZARUS, J.:                             FILED MARCH 22, 2017

      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]:
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           [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 conduct1 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


____________________________________________


1
    18 Pa.C.S. § 5503.
2
    18 Pa.C.S. § 2709.


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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


____________________________________________


3
  While Boniella’s statement includes 18 numbered paragraphs, he raises
only the two separate issues noted above.


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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 ineffectiveness).      Accordingly, we consider

untimely counseled Rule 1925(b) statements on the basis of judicial

economy. See Comment to Ra.R.A.P. 1925(c)(3).

      It is a longstanding principle that a pro se litigant cannot be ineffective

on his or her own behalf. See Commonwealth v. Fletcher, 517, 986 A.2d

759, 773 (Pa. 2009) (“The law prohibits a defendant who chooses to

represent himself from alleging his own ineffectiveness.”).           Thus, our

rationale for considering an untimely Rule 1925(b) statement disappears

where it is filed by a pro se litigant. Therefore, we are constrained to find

that Boniella’s issues are waived in the instant matter.

      In light of the foregoing, we also note that Boniella would not be

entitled to relief even if his Rule 1925(b) statement had been timely filed.

In his first issue, Boniella challenges the sufficiency of the evidence to

convict him of disorderly conduct. In considering sufficiency of the evidence

claims,

      we must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in the
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. . . . Where
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      there is sufficient evidence to enable the trier of fact to find
      every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.
      Of course, the evidence established at trial need not preclude
      every possibility of innocence and the fact-finder is free to
      believe all, part or none of the evidence presented.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc).

      A person is guilty of disorderly conduct if he or she, “with intent to

cause public inconvenience, annoyance or alarm, or recklessly creating a risk

thereof,” does any of the following:

      (1) engages in fighting      or   threatening, or   in violent or
      tumultuous behavior;

      (2) makes unreasonable noise;

      (3) uses obscene language, or makes an obscene gesture; or

      (4) creates a hazardous or physically offensive condition by any
      act which serves no legitimate purpose of the actor.

18 Pa.C.S. § 5503.

      Boniella asserts that he did not intend to create a disturbance and that

he did not engage in any of the enumerated actions in section 5503, since

his behavior was not violent, overly loud, and was intended to serve the

purpose of leaving Mt. Macrina with his father, who had arrived with him.

Brief of Appellant, at 13.   However, the nursing home administrator, Ms.

Meyers, testified that Boniella pushed her, was very loud, and disrupted

other residents in the nursing home.     See N.T. Trial, 2/24/16, at 7.    Ms.

Meyers’ testimony provided sufficient evidence to prove that Boniella was

guilty of disorderly conduct, and the trial court was free to believe the

evidence presented. Watley, supra.


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      Boniella also argues that the trial court erred in denying his request for

the appointment of counsel.     Our rules of criminal procedure specify that

counsel is to be appointed “in all summary cases, for all defendants who are

without financial resources or who are otherwise unable to employ counsel

when there is a likelihood that imprisonment will be imposed.”

Pa.R.Crim.P. 122(A)(1) (emphasis added).          As we have noted, “[t]he

purpose of [Rule 122 is to] ensure[ n]o defendant in a summary case may

be sentenced to imprisonment unless the defendant was represented at trial

by counsel.” Commonwealth v. Blackham, 909 A.2d 315, 318 (Pa. Super.

2006) (citation and quotation marks omitted).

      Here, the trial court indicated that although a term of imprisonment

was a possible sentence for a conviction of disorderly conduct, it was

unlikely that imprisonment would be imposed.           Furthermore, Boniella’s

actual sentence was limited to a fine and court costs.        As we noted in

Blackham, “[b]ecause the trial court determined before trial that a term of

imprisonment was unlikely, and no term of imprisonment was imposed, the

trial court correctly concluded that it had no obligation to appoint counsel.”

Id.   Thus, the trial court did not err in denying Boniella’s request for the

appointment of counsel.

      Judgment of sentence affirmed.

      Judge Jenkins did not participate in the consideration or decision of

this case.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/2017




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