Commonwealth v. Piccolo

COMMONWEALTH OF PENNSYLVANIA, Appellee v. FRANK PICCOLO, Appellant

J-S12026-15

No. 1060 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

JUNE 4, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence November 15, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002621-2013, CP-51-CR-0002622-2013, CP-51-CR-0002645-2013

BEFORE: BOWES, SHOGAN, and FITZGERALD,^** JJ.

MEMORANDUM BY BOWES, J.^*:

Frank Piccolo appeals from the judgment of sentence of one to two years incarceration to be followed by six and one-half years of probation after the court found him guilty of two counts of harassment, and one count each of terroristic threats, criminal trespass, unauthorized use of a motor vehicle, and contempt. We affirm.

The victim in this matter is Appellant's estranged wife. She and Appellant have three children together and formerly resided together. OnDecember 14, 2012, the victim and her two daughters were residing in an apartment with the victim's sister. On that date, Appellant told the victim and his daughters that he needed a ride because his vehicle broke down. One of Appellant's daughters drove to Appellant's residence to give him a ride. However, rather than direct his daughter to where he needed to travel, he asked her to take him to where she and her mother were staying. When they arrived, Appellant left with the car. The victim reported the car stolen that same day and her brother discovered the vehicle parked on the side of a road. He returned the vehicle to his sister, who then attempted to use a device to prevent the vehicle from being driven.

Not dissuaded, Appellant again took the vehicle without permission on December 20, 2012. The victim's brother did not retrieve the vehicle until January 20, 2013. On December 23, 2012, Appellant sent the victim a slew of text messages, including a message stating, "I'm going to fuck your face up so bad you will look like you were in a car wreck. You won't even know when it will happen. And you will see—all you will see is red stars and wake up screaming in horror. That's your future, dude." N.T., 9/20/13, at 11.

The victim obtained a protection from abuse ("PFA") order the next day. Police attempted to serve Appellant with the PFA at his residence. Despite Appellant's vehicle being present and lights being on in the home, Appellant did not respond to the door. Accordingly, the police placed the order between Appellant's screen and front doors. At approximately 5:45p.m., Appellant entered the apartment where his wife was staying. At the time, the victim was showering but could hear her daughters yelling at Appellant to leave. The victim opened the door to the bathroom and saw Appellant in the front entrance. She telephoned police and Appellant left. When police arrived, they saw that the front door had been damaged in a manner consistent with forced entry. Appellant did not have a key to the apartment.

Thereafter, on January 7, 2013, police attempted to serve an arrest warrant on Appellant based on charges of terroristic threats and harassment. Police found Appellant hiding in a crawl space in his basement and placed him under arrest. Appellant did not remain incarcerated, and on January 22, 2013, he again took the victim's car without permission. Appellant's daughters retrieved the car the next day, which had a chain and padlock on the steering column and brake pedal. Despite these efforts, the car was driveable and police were able to remove the padlock after Appellant's daughters brought it back to the victim's apartment. As police were removing the padlock, Appellant arrived at the apartment with a key to the padlock and contended that the car was his. Police again placed him under arrest.

Appellant waived his right to a jury trial. Thereafter, the court found Appellant guilty of the aforementioned crimes. The court imposed the aforementioned sentence on November 15, 2013. Appellant sent a letter tocounsel on November 18, 2013, requesting that he file a post-sentence motion. Counsel, however, averred that he did not receive that letter until November 27, 2013. However, within thirty days of his judgment of sentence, Appellant requested permission to file a nunc pro tunc post-sentence motion. The issues he wished to raise in his post-sentence motion related to the weight of the evidence and discretionary sentencing. Rather than expressly deny or grant permission to file the post-sentence motion nunc pro tunc inside the original thirty-day appeal period, the trial court failed to act.

Appellant did not appeal within thirty days of the judgment of sentence. The trial court purported to explicitly grant the request to file the motion nunc pro tunc and denied it on its merits. By that time, however, it had lost jurisdiction. In its order considering the post-sentence motion as timely filed, but denying the motion on the merits, it expressly informed Appellant that he had the right to appeal within thirty days of its order. Thus, the court incorrectly informed Appellant of his appellate rights. Indeed, the trial court failed to correctly instruct Appellant that, because it had not granted the nunc pro tunc request within thirty days, Appellant could no longer timely appeal and that he needed to file a PCRA petition seeking restoration of his direct appeal rights. Had the trial court correctly recognized that it lacked jurisdiction to grant Appellant's request to consider his post-sentence motion as timely when it finally took action, Appellantcould have filed a timely PCRA petition and sought reinstatement of his appellate rights nunc pro tunc. A decision to quash would preclude such a procedure as outlined in the body of this memorandum.

Appellant filed the instant appeal within thirty days of the trial court's order granting his request to consider his motion nunc pro tunc and denying the motion on the merits. We directed Appellant to show cause for why his appeal should not be quashed as untimely. Appellant complied, and we address our jurisdiction and the timeliness of this appeal infra. Appellant raises the following three issues for our review.

1. Was the evidence insufficient as a matter of law such that no reasonable factfinder could have found Mr. Piccolo guilty of Terroristic Threats beyond a reasonable doubt where there was no evidence of record that Frank Piccolo sent the text message at issue but rather that the text message was sent by a third party.

2. Was the verdict of guilty for Terroristic Threats against the weight of the evidence because there was no evidence of record that Frank Piccolo sent the text message at issue, the only evidence offered indicated that the text message was sent by a third party, and in any event, a subsequent text message sent four minutes later explained that the first text message was sent in error.

3. Whether the trial court abused its discretion by ordering an excessive sentence for the crime of Terroristic Threats and/or basing its above-the-guideline sentence on improper factors, i.e., a subsequent, unrelated arrest in another county.

Appellant's brief at 10.

Preliminarily, we consider whether we have jurisdiction in this matter. A timely appeal vests this Court with jurisdiction. Commonwealth v.Green, 862 A.2d 613, 615 (Pa.Super. 2004) (en banc). The time for filing an appeal is thirty days from the judgment of sentence, unless a defendant files a timely post-sentence motion. See Green, supra at 618. In the latter event, the period for filing an appeal is tolled and a defendant may appeal within thirty days of the denial of the post-sentence motion. Pa.R.Crim.P. 720. Ordinarily, a post-sentence motion must be filed within ten days of imposition of the defendant's sentence. Id. However, a defendant may request nunc pro tunc consideration of a post-sentence motion within thirty days of the judgment of sentence. Commonwealth v. Dreves, 839 A.2d 1122 (Pa.Super. 2003) (en banc). The trial court must expressly grant that motion to retain jurisdiction. Id.

Here, the trial court purported to expressly grant Appellant's request to consider his post-sentence motion nunc pro tunc. Further, it explicitly instructed him that he had thirty days to appeal from its denial of his motion on the merits. Undeniably, the trial court's actions occurred after the appeal period from the judgment of sentence had already expired. Cautious counsel should have filed an appeal within thirty days.

Nevertheless, under the unusual circumstances of this case, we hold that this case presents a breakdown in the judicial system. Commonwealth v. Braykovich, 664 A.2d 133, 136 (Pa.Super. 1995) ("It is well-established that the extension of the filing period or the allowance of an appeal nunc pro tunc will be permitted only in extraordinarycircumstances, namely, fraud or some breakdown in the processes of the court."); see also Commonwealth v. Patterson, 940 A.2d 493, 498-499 (Pa.Super. 2007);¹ Commonwealth v. Perry, 820 A.2d 734, 735 (Pa.Super. 2003); Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa.Super. 2001); Commonwealth v. Bogden, 528 A.2d 168, 170 (Pa.Super. 1987); Commonwealth v. Hurst, 532 A.2d 865, 867 (Pa.Super. 1987); Commonwealth v. Katz, 464 A.2d 1343, 1345-1346 (Pa.Super. 1983).

For example, in Coolbaugh, the defendant had thirty days to appeal a revocation of probation sentence. The filing of a timely post-sentence motion in revocation sentencing cases does not toll the appeal period. The defendant was incorrectly advised that, if he filed a post-sentence motion, his appeal period would be extended. The defendant was sentenced on April 11, 2000. He did not file a motion until April 24, 2000.² The court denied the motion on April 26, 2000, and the defendant appealed on May 26, 2000.We did not quash. Indeed, despite the motion itself being untimely, we proceeded to address the merits of the issues that had been raised therein.

Instantly, the court failed to enter an...