Com. v. Boniella, D. ( 2016 )

J-S73027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.
JUDGMENT ORDER BY LAZARUS, J.: FILED NOVEMBER 14, 2016
David Albert Boniella appeals pro se, from the judgment of sentence
entered in the Court of Common Pleas of Fayette County, on February 24,
2016. For the following reasons, we remand.
On November 16, 2015, the Honorable Wendy D. Dennis convicted
Boniella of one count of disorderly conduct and one count of harassment in
the Magisterial District Court of Fayette County.1 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
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1
18 Pa.C.S.A. § 5503; 18 Pa.C.S.A. § 2709.
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conduct and not guilty of harassment. Boniella was ordered to pay a $50
fine and court costs.
On March 14, 2016, Boniella filed a notice of appeal. Judge George
then filed an order directing Boniella to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, and Boniella failed to comply
with the order. On May 16, 2016, Judge George filed a statement in lieu of
opinion, recommending that Boniella’s appeal be dismissed for failing to file
a Rule 1925(b) statement.
After carefully reviewing the record in this case, we have determined
that a question remains about whether Boniella was properly served with the
Pa.R.A.P. 1925(b) order. See Pa.R.A.P. 1925(c)(1). On April 14, 2016, the
1925(b) order was sent by first class mail to Boniella. On April 20, 2016,
the order was returned to the court as “undeliverable,” and the order was
re-mailed to an updated address. In his Petition for Rebuttal, Boniella
alleges that he did not receive the Pa.R.A.P. 1925(b) order directing him to
file a concise statement of errors complained of on appeal until May 20,
2016, after the trial court had filed its statement in lieu of opinion.
Appellant’s Petition of Rebuttal, 8/11/16, at 1. For the foregoing reasons,
we remand this case to the trial court to determine whether Boniella was
properly served with the Pa.R.A.P. 1925(b) order. See Pa.R.A.P.
1925(c)(1). If Boniella was not properly served, we direct the trial court to
issue a new 1925(a) notice and give Boniella at least 21 days in which to file
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his statement pursuant to Pa.R.A.P. 1925(b). See Commonwealth v.
Davis, 867 A.2d 585 (Pa. Super. 2005) (en banc).
Case remanded. Panel jurisdiction retained.
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