Commonwealth v. Wenzel

248 A.3d 540

COMMONWEALTH of Pennsylvania

v.Robert Louis WENZEL, Appellant

No. 417 WDA 2020

Superior Court of Pennsylvania.

Submitted September 21, 2020

Filed: March 17, 2021

Tina M. Fryling, Erie, for appellant.

Robert C. Greene, Assistant District Attorney, Warren, for Commonwealth, appellee.

BEFORE: SHOGAN, J., STABILE, J., and KING, J.

OPINION BY SHOGAN, J.:

Appellant, Robert Louis Wenzel, appeals from the judgment of sentence entered on November 1, 2019, in the Warren County Court of Common Pleas. We affirm.

The trial court summarized the factual background of this matter as follows:

The Commonwealth charged Appellant at Criminal Information CR 550 of 2018 with (1) count of Resisting Arrest or Other Law Enforcement Officer,¹ following an incident that occurred on October 4, 2018. On that date, members of the Pennsylvania State Police served an arrest warrant upon the Appellant. The complaint alleged that the Appellant refused to comply with the officer's orders and he created a substantial risk of bodily injury to the officers. Thus, the State Police were forced to employ substantial force to overcome the resistance. Ultimately, a jury convicted the Appellant of Resisting Arrest or Other Law Enforcement on September 5, 2019.

¹ 18 Pa.C.S.A. § 5104, graded as a Second Degree Misdemeanor.

Following trial, on September 20, 2019, Appellant filed a motion for contempt against Corporal Jen Bovee for failure to appear. The [c]ourt denied the motion for contempt on October 2, 2019, because the Appellant could not produce proof of service. On November 1, 2019, the [c]ourt sentenced the Appellant to Intermediate Punishment, for a period of two (2) years less one (1) day, with a restrictive portion of four (4) months [of] incarceration in the Warren County Prison, with credit for time served of one hundred nineteen (119) days, followed by one (1) month of House Arrest.

The Appellant filed a motion for post-sentence relief on November 12, 2019. In response to that motion, the [c]ourt filed a scheduling order on December 31, 2019 that ordered an evidentiary hearing to take place on February 6, 2020 to address the issue of whether the Commonwealth violated the discovery standards set forth in Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by failing to disclose that a Pennsylvania State Police internal investigation took place in this matter. On February 14, 2020, this [c]ourt denied Appellant's motion for post-sentence relief and published a thorough opinion explaining its ruling. On March 10, 2020, [Appellant] appealed the order entered on February 14, 2020. On March 17, 2020, this [c]ourt ordered the Appellant to file and serve on the trial court a concise statement of the errors complained of on appeal within twenty-one days, in accordance with Rule 1925(b). The Appellant filed a timely statement of matters complained of on appeal on April 6, 2020. ...

Trial Court Opinion, 5/1/20, at 2-3. Both the trial court and Appellant complied with Pa.R.A.P. 1925.

Before we address Appellant's issues on appeal, we must address whether this appeal is properly before us. As noted, the trial court sentenced Appellant on November 1, 2019. That sentencing order provided:

SENTENCE

AND NOW, this 1^st day of November 2019, as to Count 1, resisting Arrest or Other Law Enforcement, the Defendant is sentenced to an alternative sentence as follows:

a.) Defendant shall serve a period of Intermediate Punishment for two (2) years less one (1) day, with a restrictive portion of four (4) months incarceration in the Warren County Prison, with credit for time served of one-hundred nineteen (119) days, followed by one (1) month of House Arrest. The balance of the Intermediate Punishment period shall be general supervision by the Warren County Probation Department. This sentence shall run concurrently with the McKean County sentence Defendant is currently serving.

b.) Defendant shall pay the cost of prosecution, an administrative fee of $125 to the Warren County Probation Department, a fine of $350 and central booking costs of $125.

This sentence commences this date.

Pursuant to Local Rule 705, Defendant shall abide by all rules and conditions of Intermediate Punishment.

The presentence investigation report is made part of the record.

BY THE COURT:

s/Maureen A. Skerda, P.J.

Judgment of Sentence, 11/1/19, at 1-2.

Appellant filed a timely post-sentence motion on November 12, 2019.¹ On November 19, 2019, while Appellant's post-sentence motion was pending, the trial court amended Appellant's November 1, 2019 judgment of sentence sua sponte .² First Amended Judgment of Sentence, 11/19/19. In the amended judgment of sentence, the trial court removed 119 days of credit for time served. Id. at 1. On December 12, 2019, the trial court again amended Appellant's judgment of sentence sua sponte and stated Appellant was required to spend ninety days of the four-month restrictive portion of his sentence in the Warren County Prison, and house arrest would be enforced by electronic monitoring. Second Amended Judgment of Sentence, 12/12/19.

On February 14, 2020, following an evidentiary hearing, the trial court denied Appellant's post-sentence motion. On March 10, 2020, Appellant filed an appeal in which he purported to appeal from the February 14, 2020 order denying his post-sentence motion. This Court has held that in cases where the trial court amends the judgment of sentence during the period it maintains jurisdiction pursuant to Section 5505, the direct appeal lies from the amended judgment of sentence. Commonwealth v. Garzone , 993 A.2d 1245, 1254 n.6 (Pa. Super. 2010) (emphasis added). However, even though Appellant filed an appeal from the order denying his post-sentence motion, and despite the trial court filing amendments to the November 1, 2019 judgment of sentence, we conclude that under the circumstances presented herein, we are not precluded from addressing the merits of Appellant's appeal. Our rationale is set forth in detail below.

As noted, Appellant filed a timely post-sentence motion on November 12, 2019, following the imposition of sentence on November 1, 2019. The post-sentence motion tolled the thirty-day appeal period. See Commonwealth v. Capaldi , 112 A.3d 1242, 1244 (Pa. Super. 2015) (explaining that in a criminal case, where a defendant files a timely post-sentence motion, the period in which to file a direct appeal is tolled and does not begin to run until the trial court decides the motion) (citing Pa.R.Crim.P. 720(A)(2) ; Pa.R.A.P. 903(a) (stating that "[e]xcept as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken.")). Although the trial court had the authority to file the intervening First Amended Judgment of Sentence and Second Amended Judgment of Sentence,³ we conclude that the amended sentences had no negative impact on Appellant's timely post-sentence motion or appeal.

The First Amended Judgment of Sentence was nearly identical to the original November 1, 2019 judgment of sentence and provided as follows:

AMENDED

SENTENCE

AND NOW, this 1^st day of November 2019, as to Count 1, resisting Arrest or Other Law Enforcement, the Defendant is sentenced to an alternative sentence as follows:

a.) Defendant shall serve a period of Intermediate Punishment for two (2) years less one (1) day, with a restrictive portion of four (4) months incarceration in the Warren County Prison, followed by one (1) month of House Arrest. The balance of the Intermediate Punishment period shall be general supervision by the Warren County Probation Department. This sentence shall run concurrently with the McKean County sentence Defendant is currently serving.

b.) Defendant shall pay the cost of prosecution, an administrative fee of $125 to the Warren County Probation Department, a fine of $350 and central booking costs of $125.

This sentence commences this date.

Pursuant to Local Rule 705, Defendant shall abide by all rules and conditions of Intermediate Punishment.

The presentence investigation report is made part of the record.

BY THE COURT:

s/Maureen A. Skerda, P.J.

First Amended Judgment of Sentence, 11/19/19, at 1-2.

Similarly, the Second Amended Judgment of Sentence entered on December 12, 2019, was almost identical to the original November 1, 2019 judgment of sentence. It provided as follows:

SECOND AMENDED

SENTENCE

AND NOW, this 1^st day of November 2019, as to Count 1, resisting Arrest or Other Law Enforcement, the Defendant is sentenced to an alternative sentence as follows:

a.) Defendant shall serve a period of Intermediate Punishment for two (2) years less one (1) day, with a restrictive portion of four (4) months which shall include ninety (90) days incarceration in the Warren County Prison, followed by one (1) month of House Arrest with Electric Monitoring. The balance of the Intermediate Punishment period shall be general supervision by the Warren County Probation Department. This sentence shall run concurrently with the McKean County sentence Defendant is currently serving.

b.) Defendant shall pay the cost of prosecution, an administrative fee of $125 to the Warren County Probation Department, a fine of $350 and central booking costs of $125.

This sentence commences this date.

Pursuant to Local Rule 705, Defendant shall abide by all rules and conditions of Intermediate Punishment.

The presentence investigation report is made part of the record.

BY THE COURT:

s/Maureen A. Skerda, P.J.

Second Amended Judgment of Sentence, 12/12/19, at 1-2.

Indeed, the First and Second Amended Judgments of Sentence retained the November 1, 2019 date of imposition; they amended nothing other than the 119 days of time credit and directed ninety days of incarceration in the county prison followed by electronic home monitoring. If the trial court intended the amended judgments of sentence to vitiate and replace the original November 1, 2019 judgment...