Com. v. Gennaro, N.

J-S05042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICHOLAS D. GENNARO :
:
Appellant : No. 825 MDA 2021
Appeal from the Judgment of Sentence Entered May 19, 2021
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000111-2021
BEFORE: PANELLA, P.J., STABILE, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 30, 2022
Appellant, Nicholas D. Gennaro, appeals from the May 19, 2020
Judgment of Sentence entered in the Bradford County Court of Common Pleas
after a jury convicted him of Escape, Attempted Escape, and Institutional
Vandalism.1 Appellant challenges the sufficiency of the evidence and raises a
due process claim. Upon careful review, we affirm.
The relevant factual and procedural history is as follows. On March 17,
2020, the Commonwealth charged Appellant with numerous felonies including
Receiving Stolen Property (“RSP”), Fleeing or Attempting to Elude Law
Enforcement, Possession of a Controlled Substance, Recklessly Endangering
Another Person (“REAP”), as well as various summary driving offenses after
Appellant operated a stolen vehicle and led police on a high-speed chase.
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1 18 Pa.C.S. §§ 5121(a), 901, and 3307(a)(3), respectively.
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Appellant was unable to post bail, which the court set at $200,000, and he
remained incarcerated at the Bradford County Correction Facility (“BCCF”)
from March 17, 2020, through July 16, 2020.
On July 13, 2020, at approximately 1:00 AM, Corrections Officer (“CO”)
James Guenther discovered that Appellant was missing from his jail cell.
Appellant’s cell mate, William Stern, flagged down CO Guenther and pointed
to the ceiling of the cell. CO Guenther observed a hole in the ceiling the size
of a basketball. When CO Guenther could not locate Appellant in the cell, he
immediately initiated a “Code Red,” locked down the facility, notified the
warden, and called for backup from the state police. Warden Donald Stewart
arrived at BCCF, entered the cell, and proceeded to fit his head and shoulders
through the hole in the ceiling and into a crawlspace. Using a flashlight,
Warden Stewart observed Appellant in a corner of the crawlspace, under a
blanket, with coffee and prison uniforms around him. Warden Stewart gave
verbal commands for Appellant to climb down back into the cell, but Appellant
was noncompliant. Warden Stewart ordered officers to obtain tools to widen
the ceiling hole to remove Appellant from the crawl space. After about fifteen
minutes, Appellant lowered himself through the hole into the cell and officers
were able to apprehend him. The Commonwealth subsequently charged
Appellant with Escape, Attempted Escape, Institutional Vandalism2.
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2 The Commonwealth initially charged Appellant with Escape and Institutional
Vandalism. The Commonwealth subsequently amended the complaint to
include Attempted Escape.
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Following this incident, Warden Stewart determined Appellant was a
security risk at the county jail and petitioned the Department of Corrections
(“DOC”) to house Appellant as a pretrial detainee at a state prison. The DOC
subsequently transferred Appellant to SCI Rockview.3
On March 25, 2021, Appellant filed an Omnibus Pre-Trial Motion which,
inter alia, included a request to transport Appellant back to BCCF so that he
could meet with counsel and prepare for trial. On April 16, 2021, after a video
hearing, the trial court denied Appellant’s request to return to BCCF.
On April 27, 2021, at a pretrial conference where Appellant was not
present, Appellant’s counsel informed the court that Appellant had fired him.
The court conducted a Grazier hearing on May 14, 2021, and ultimately
granted Appellant’s request to represent himself at trial.
On May 18, 2021, a jury trial commenced. The Commonwealth
presented testimony from County Detective Kyle Wisel, CO James Guenther,
and Warden Stewart, who testified to the above events. Additionally, Warden
Stewart testified that the ceiling of Appellant’s cell was reinforced with metal
wire and metal support bars that Appellant bent and broke to enter the crawl
space. Warden Stewart explained that once Appellant was in the crawl space
above the cell, he ran into a “dead end” of four concrete walls and a solid
metal roof confining him. N.T. Trial, 5/18/21, at 60. Finally, Warden Stewart
____________________________________________
3 On September 18, 2020, Appellant entered a nolo contendre plea to RSP,
Fleeing or Attempting to Allude a Police Officer, and REAP and the trial court
imposed an aggregate sentence of six to eighteen months’ incarceration.
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confirmed that Appellant did not obtain permission from staff to enter the
crawl space above his cell.
Appellant presented testimony from Trooper Justin Walton, who wrote
the original police criminal complaint. Trooper Walton confirmed that he wrote
in the report that Appellant “was positioned in the ceiling within the confines
of the cell perimeter and unable to escape further” when he was located. Id.
at 74-75. Appellant chose not to testify on his own behalf.
At the close of evidence, Appellant invoked his right to counsel and
stand-by counsel made a closing argument.
The jury found Appellant guilty of Escape, Attempted Escape, and
Institutional Vandalism. The trial court sentenced Appellant to an aggregate
sentence of eleven to forty-eight months’ incarceration to be served
consecutively to his other sentences.
Appellant timely appealed. Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Was the evidence adduced at trial sufficient to establish guilty
beyond a reasonable doubt with regard to the charge of
[A]ttempted [E]scape and [E]scape?
2. Was Appellant denied due process when he was a county
inmate housed at a state correctional facility, was not present
at his pre-trial conference, and given three days to prepare
himself for trial?
Appellant’s Br. at 7 (reordered for ease of disposition).
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Appellant first challenges the sufficiency of the evidence supporting his
conviction for Escape and Attempted Escape. Appellant argues that because
he was not outside of his cell, but rather in the ceiling above his cell, the
evidence adduced at trial was insufficient to convict him of both. Appellant’s
Br. at 17.
“When considering a challenge to the sufficiency of the evidence, we
must determine whether the evidence admitted at trial and all reasonable
inferences drawn therefrom, when viewed in the light most favorable to the
Commonwealth as verdict winner, is sufficient to establish every element of
the offense beyond a reasonable doubt.” Commonwealth v. Reaser, 851
A.2d 144, 147 (Pa. Super. 2004) (citation omitted). “In applying the above
test, we may not weigh the evidence and substitute our judgment for the fact-
finder.” Commonwealth v. Melvin, 103 A.3d 1, 39–40 (Pa. Super. 2014)
(citation omitted). “[T]he finder of fact while passing upon the credibility of
witnesses and the weight of the evidence produced, is free to believe all, part
or none of the evidence.” Id. (citation omitted). Additionally, the
Commonwealth need not establish facts and circumstances that preclude
every possibility of innocence. Commonwealth v. Estepp, 17 A.3d 939, 943
(Pa. Super. 2011). “Any doubts regarding a defendant’s guilt may be resolved
by the fact-finder unless the evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn from the combined
circumstances.” Id. (citation omitted). Notably, the Commonwealth may
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sustain its burden by presenting wholly circumstantial evidence. Melvin, 103
A.3d at 40.
Relevant to this appeal, a person is guilty of Escape if he “unlawfully
removes himself from official detention[.]” 18 Pa.C.S. § 5121(a). Section
5121(e) further provides that “official detention” includes “detention in any
facility for custody of persons under charge or conviction of crime[.]” Id. at
§ 5121(e). Escape is graded as a felony of the third degree if the actor was
“under arrest for or detained on a charge of a felony[.]” Id. at §
5121(d)(1)(i)(A).
Moreover, “[a] person commits an attempt when, with intent to commit
a specific crime, he does any act which constitutes a substantial step toward
the commission of that crime.” Id. at 901(a).
Pertinent here, in Commonwealth v. Markle, 369 A.2d 317 (Pa.
Super. 1976), this Court affirmed a conviction for Escape under similar
circumstances. This Court concluded that when staff discovered a defendant
lying in the exercise yard outside of his assigned cell block and found a hole
in the cell block roof, it could be reasonably inferred that the defendant had
removed himself from the area of the prison where he belonged and, thus,
was guilty of Escape despite the fact he was still inside the confines of the
prison. Id. at 318.
Instantly, the trial court found that Appellant left his area of “official
detention” when he left the four walls of his cell and entered the crawlspace
above the cell. The court relied on Markle, supra, to conclude that when
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Appellant left the confines of his assigned cell, he was guilty of the crime of
Escape, regardless of the fact that he was still inside of the prison. The trial
court opined:
Appellant was confined within the walls, floor[,] and ceiling of his
cell. Appellant had to force his way into the crawlspace above the
ceiling by breaking through masonry work and wire reinforcement.
He left the area he was confined to, despite still being within the
prison. He passed through a solid barrier in the ceiling, thus
leaving the area of “official detention[,]” a critical element of
[E]scape. As noted in Markle, [] a person under official detention
does not need to fully leave the confines of incarceration to be
guilty of [E]scape. Therefore, this issue is without merit.
Trial Ct. Op., dated 5/19/21, at 9.
The trial court also concluded that Commonwealth presented sufficient
evidence to prove Attempted Escape and opined: “Appellant broke into the
ceiling of his cell and crawled through it. The jury was free to infer that such
an act was done with intent to commit the crime of Escape and that it was a
substantial step toward the commission of same.” Id. at 10.
Upon review, we agree with the trial court that the Commonwealth
presented sufficient evidence to convict Appellant of Escape and Attempted
Escape. The evidence presented at trial demonstrated that Appellant was
incarcerated pending bail on felony charges, that he was confined and locked
inside of a cell, that he was not permitted to leave his cell, that he created a
hole larger than a basketball in the cell ceiling, and that he climbed into the
crawlspace above the cell with extra clothes, coffee, and other personal items
only to be stopped by cinderblock walls. Viewing the evidence presented at
trial in the light most favorable to the Commonwealth, sufficient facts of record
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support the factfinder’s conclusion Appellant unlawfully removed himself from
official detention when he entered the crawlspace above his cell and the
factfinder’s inference that Appellant intended to commit the crime of Escape
when he took the substantial step of breaking through the ceiling in his cell.
Accordingly, the Commonwealth presented sufficient evidence to sustain
convictions for Escape and Attempted Escape and Appellant’s claim fails.
In his second issue, Appellant avers that he was “denied due process
when he was a county inmate housed at a state correctional facility, was not
present at his pre-trial conference, and [was] given three days to prepare
himself for trial.” Appellant’s Br. at 7. The crux of Appellant’s argument is
that he did not have adequate time to prepare for trial, which commenced
four days after the Grazier hearing where the trial court granted Appellant’s
request to represent himself at trial. Id. at 14. This claim is waived for two
reasons.
First Appellant failed to preserve this claim of error by requesting a
continuance at the start of trial. It is axiomatic that “[t]he failure to make a
timely and specific objection before the trial court at the appropriate stage of
the proceedings will result in waiver of the issue.” Commonwealth v.
Tucker, 143 A.3d 955, 961 (Pa. Super. 2016) (citation omitted).
Secondly, Appellant failed to include this due process claim in his Rule
1925(b) statement and is raising the claim for the first time on appeal. In his
Rule 1925(b) statement, Appellant included an averment that when the trial
court denied Appellant’s motion to transfer him from SCI Rockview to BCCF,
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the trial court denied him his right to counsel. Rule 1925(b) Statement,
7/27/21, at ¶ 7. On appeal, Appellant pivots and raises a new claim that,
while representing himself, he did not have adequate time to prepare for trial.
Appellant’s Br. at 14. Appellant’s failure to include this new claim in his Rule
1925(b) statement provides another reason for this Court to find waiver. See
Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are
waived.”); Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived
and cannot be raised for the first time on appeal.”).
In conclusion, the Commonwealth presented sufficient evidence to
convict Appellant of Escape and Attempted Escape and Appellant’s due process
claim is waived.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/30/2022
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