Com. v. Grilli, M. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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