Com. v. Reiss, W. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WALTER STANLEY REISS :
:
Appellant : No. 856 EDA 2019
Appeal from the Judgment of Sentence Entered October 19, 2018
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0001288-2018
BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 11, 2020
Appellant Walter Stanley Reiss appeals from the judgment of sentence
imposed after a jury found him guilty of two counts of arson.1 Appellant
challenges the sufficiency of the evidence. Because the record does not
contain an order denying Appellant’s post-verdict or post-sentence motions,
we are constrained to quash this appeal.
The procedural history of this appeal is as follows. On November 1,
2017, the Commonwealth filed a criminal complaint against Appellant alleging
that Appellant set fire to his home to collect insurance and in so doing, placed
firefighters at risk of death or serious bodily injury. Appellant obtained private
counsel, Christopher W. Koschier, Esq., who entered his appearance on April
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1 18 Pa.C.S. § 3301(a)(1)(i) (arson endangering persons), (c)(3) (arson
endangering property with intent to collect insurance).
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23, 2018. The matter proceeded to a jury trial. On September 6, 2018, the
jury found Appellant guilty of the above-mentioned crimes.
On October 19, 2018, Attorney Koschier filed a post-verdict motion
seeking a new trial and leave to withdraw as counsel. That same day, the trial
court convened the sentencing hearing. The trial court considered Attorney
Koschier’s post-verdict motion for a new trial as a post-sentence motion. N.T.,
10/19/18, at 3 (describing Attorney Koschier’s motion as a premature post-
sentence motion). The trial court sentenced Appellant to an aggregate term
of thirty-three to seventy-two months’ imprisonment and restitution to State
Farm Insurance Company and the fire department. After imposing sentence,
the trial court heard from Attorney Koschier on his motion for leave to
withdraw as counsel. Id. at 60-62. Appellant and the Commonwealth did not
object to Attorney Koschier’s withdrawal. Id. at 61-62.
On October 24, 2018, the trial court granted Attorney Koschier leave to
withdraw and directed the Office of the Public Defender to represent Appellant
on appeal. On November 28, 2018, the trial court ordered Alexander J.
Karam, Jr., Esq., to represent Appellant as conflicts counsel.
On January 11, 2019, Attorney Karam filed a praecipe to withdraw, and
Appellant’s current counsel, Gerald A. Stein, Esq., entered his appearance.
On January 23, 2019, Attorney Stein filed a post-sentence motion.2 The
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2 It does not appear from the record that Attorney Stein requested leave to
file a post-sentence motion nunc pro tunc. However, although the record does
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Commonwealth filed a response on February 5, 2019. It appears that the trial
court did not rule on Attorney Koschier’s post-verdict motion or Attorney
Stein’s post-sentence motion, because no such order appears in the record or
the docket.
On March 15, 2019, Attorney Stein filed a notice of appeal from the
judgment of sentence. In the notice of appeal, Attorney Stein represented
that “post-verdict/sentence motions [were] denied by operation of law as of
2/17/19.” Notice of Appeal, 3/15/19. The trial court did not order a Pa.R.A.P.
1925(b) statement, but issued an opinion finding no merit to Appellant’s post-
verdict and post-sentence motions.
Before addressing the merits of this appeal, we must consider whether
we have jurisdiction. “[S]ince the question of appealability implicates the
jurisdiction of this Court, the issue may be raised by this Court sua sponte.”
Commonwealth v. Horn, 172 A.3d 1133, 1135 (Pa. Super. 2017) (citation
and internal alterations omitted). “[T]he final, appealable order for a
defendant’s direct appeal in a criminal case is the judgment of sentence, not
the conviction.” Commonwealth v. Claffey, 80 A.3d 780, 782-83 (Pa.
Super. 2013) (citation omitted). If a defendant files a timely post-sentence
motion, then the notice of appeal must be filed within thirty days of the entry
of the order deciding the motion. Pa.R.Crim.P. 720(A)(2)(a). “No direct
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not contain a written order, the trial court stated that it permitted Attorney
Stein additional time to file supplemental post-sentence motions with a brief.
Trial Ct. Op., 4/16/19, at 2. Moreover, the trial court received and considered
Attorney Stein’s post-sentence motions. Id. at 3, 11.
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appeal may be taken by a defendant while his or her post-sentence motion is
pending.” Pa.R.Crim.P. 720 cmt. (citation omitted).
Instantly, Attorney Koschier filed a post-verdict motion, which the trial
court appeared to consider as a timely post-sentence motion. See N.T.,
10/19/18, at 3. Additionally, after the trial court permitted Attorney Koschier
to withdraw, Attorney Stein filed a post-sentence motion, which the trial court
apparently accepted. However, there is no order in the record either denying
the post-verdict motion or memorializing the denial of that motion by
operation of law. Additionally, even if the trial court granted leave for Attorney
Stein to file a post-sentence motion nunc pro tunc, there is no order denying
that motion.
Because the entry of an appropriate order is a prerequisite to this Court’s
exercise of jurisdiction, we conclude that Appellant’s notice of appeal was
premature. See Pa.R.Crim.P. 720(A)(2)(a) & cmt.; Claffey, 80 A.3d at 782-
83. Accordingly, we are compelled to quash the appeal. See
Commonwealth v. Borrero, 692 A.2d 158, 161 (Pa. Super. 1997) (quashing
the appellant’s premature appeal and explaining that the interests of justice
required the trial court to consider the post-sentence motions on remand,
nunc pro tunc).
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/20
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