Case Information

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

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 ____________________________________________

[1] 18 Pa.C.S.A. § 5503; 18 Pa.C.S.A. § 2709.

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 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.