*1 organizations, police story giving teer and his initial about child to a local untrue, FBI all recovering Longwood were unsuccessful in woman at Gardens was the child. These facts tend to establish that the as was his claim child with Lettrich, Katelyn dead and death her oc York. su- woman from New See criminal, (evidence accidental, curred rather than corpus sufficient pra of delicti Burns, Lettrich, means. See su supra; incapable caring for baby, of her- where pra. self, defendant, was last seen alive with the explain- gave who inconsistent statements Further, considering ing disappearance). her whether the evidence is sufficient to estab means, lish death we by criminal cannot Common- We conclude ignore prior the conduct Rivera to the delicti be- corpus wealth established murder and he made thus, the statements doubt; yond a Rivera’s reasonable Helton, police day. and All others that jury confession was admissible and the afternoon evening, Rivera used his properly reaching it in considered ver- daughter pawn as a to meet Helton. dict. failed, meeting
Each time their became CONCLUSION calls, angry. phone more and more In his Katelyn. Rivera to harm threatened He find that Rivera Because raises taking stated that he was child to a no issues that entitle him to appellate place one again. where no could hurt her lief, affirm we must his sentence. He said Katelyn going to heaven. He ¶ 55 Judgment sentence affirmed. “say goodbye”
told Helton that she should to her daughter.
¶ 51 These statements are state-. subject
ments corpus delicti rule.
Indeed, Katelyn was they alive at the time uttered;
were there had no been murder. Rather, the prior statements were threats Pennsylvania, COMMONWEALTH intent, and statements of neither which Appellee, fall within rule protects against “hasty disclosure unguarded confes- (narrowing sions.” See Verticelli FELMLEE, Appellant. Jared J. corpus
breadth of the delicti rule to in- Superior of Pennsylvania. only clude inculpate those statements that crime). the defendant in the Rivera’s vio- Submitted Nov. 2002. Katelyn, lent abduction of cruel con- June Filed day disappeared duct on the she and his Aug. Revised repeated regarding safety threats her directly to the question relevant wheth- Katelyn
er death is dead how her
accomplished. varying too is Relevant Rivera’s hap-
inconsistent statements about what (none
pened Katelyn inculpat- of them murder),
ing him in his own followed
testimony jury at trial. He told the *2 SOLE, P.J.,
BEFORE: DEL JOYCE, McEWEN, P.J.E., HUDOCK, STEVENS, KLEIN, TODD, BENDER GRACI, JJ. SOLE, BY DEL P.J.: OPINION 1 This is from the a direct imposed Appel- judgment of after sentence attempting or pled guilty fleeing lant police He was sentenced elude officer. in- twenty-four to serve twelve to months’ carceration, ap- plus fines and costs. On peal alleges the trial court abused sentencing him its discretion sentencing guide- aggravated range “overwhelmingly where the record lines standard supports Appellant’s Brief af- range.” at 6. We firm. merits considering Before timeli we address the Appellant’s claim appeal. of this discussion
ness
to our
review of
brought about due
initial
appears
this matter which
the record
H07
Appellant’s post-sentence
indicate that
mo- motion
at a
where neither
imposition
parties
court nor the
commented about its
sentence,
receipt
which would make it untime-
Finding
its timeliness.2
However,
ly.1
closer examination we
motion and the
*3
Appellant’s
timely
conclude that
motion
time-
we turn now
was
this matter were
ly
prop-
filed and that
instant
appeal.
the
to address
merits of this
the
erly before us for review.
¶ Appellant,
challenges
5
who
¶3
receipt
Appellant’s guilty
After
of
only
discretionary
of
sen
aspects
the
his
plea
imposed
the trial court
sentence on
tence,
Brief
separate
sets forth
his
30,
Appellant
November
2000.
until
Al
Concise Statement
the Reasons for
11, 2000,
Monday, December
in which to
Appeal
lowance of
accordance
file
that day
motion. On
2119(f)
R.A.P.
and
v. Tu
Commonwealth
Appellant’s post-sentence motion was re-
ladziecki,
508,
(1987).
513 Pa.
which
heading
contains a
the date
bearing
imposed
appropriate
sentence
is not
under
a sepa-
motion contains
12/11/2000.
Sentencing
the
Code.
v.
Commonwealth
page
rate
includes
certification of
Felix,
145,
Pa.Super.
371
A.2d
notice of service.
It
the
recites that
(1988).
parties
was “served on all
or then-
by
Monday,
counsel of record
fax on
De-
¶ Appellant complains
sen-
11,
cember
2000.” The motion was not
tencing
aggra-
court sentenced him the
noted on the docket or time stamped until
range
vated
without
and
adequate reason
day
December
2000. That same
giving appropriate
without
consideration
trial court issued a Rule to
Cause.
Show
mitigating
complains
factors. He further
A hearing
eventually
was
January
held on
that the court did
him
grant
a thor-
18, 2001, after which the trial court denied ough review of this claim set forth in his
motion. The notice of
was filed post-sentence motion
asks
days,
within 30
on February
review
entire record to “as-
¶ 4 We conclude
motion
timely
was
sure
this Defendant has been sen-
11, 2000,
filed on and the notice
Appellant’s
tenced and treated fairly.”
of appeal
timely
filed within 30
of Brief
Appellant’s
at 13.
claim that
entry
ruling
trial court’s
an
imposing
aggravated
court erred
720(A)(2)(a).
motion.
range
Pa.R.Crim.P.
Al-
sentence
without consideration
though the motion
mitigating
docketed until
raises
circumstances
a substan-
later,
two
it
apparent
that the trial
question.
tial
Commonwealth
facsimile,
Anderson,
court accepted the
as it issued a
Pa.Super.
Appellant’s along go claim with the informa Appellant opportunity offered sentencing hearing tion set forth at the camp boot which it believed would serve as and con Appellant. benefit to imposed by Presi clude ¶ Therefore, expe- is obvious that an appropria dent was fair and trial judge very carefully rienced reviewed Appellant Fleeing te.3 was convicted of all facts an intelligent and made deci- Officers, Police Attempting to Elude sentencing. any sion as to Under stan- 3738(a). § Pa.C.S.A. dard, we, appropriate, this sentence is danger Ap noted created when therefore, affirm. motorcycle, night, pellant driving *4 ¶ Judgment of sentence affirmed. carrying and light barely with a attached ignored police both the passenger. He ¶ KLEIN, concurring files a J.
lights and di loudspeaker sirens and McEWEN, opinion, joined by and P.J.E. police pull rection officer to over. BENDER, woods, J. into He veered off where the him, ultimately abandoning officer chased KLEIN, OPINION BY CONCURRING hitting the chase because the risk of J.: Judge President White noted the trees. ¶ fully agree majority 1 I with the that saying to dangerous nature this chase Jr., White, H. Judge William Appellant sentencing hearing, experienced regarded trial highly and yourself, you endan endangered “[Y]ou judge, made in sen- absolutely no error gered your passenger, you certainly then, but all the fac- endangered police tencing officer. And instead considered course, that, as to leaving your to run tors and made a reasoned decision like way to passenger my proper under the sentence. wheel N.T., cowardly thinking, that’s act.” juris- I agree 2 likewise that 11/30/00,at 20. matter, to for a diction consider this but reviewing history, In Appellant’s different reason. parole at Appellant court noted was on appears the Although it record indi- time of the offense. The discussed post-sentence motion was cates Felmlee’s Appellant’s juvenile adjudications two imposition of sen- filed 13 offenses, multiple summary burglary late, tence, majority says or three dealing reckless conduct with a many -with closer examination “we conclude vehicle, placing people danger as motor filed Decem- timely that the motion was instant The court happened offense. majority ber 2000...” The assumes It presentence report. also did reviewed a that President received a including note facts mitigating certain copy day faxed of the motion on the tenth Appellant high fact had finished eleventh, tenth (actually day since the school, go trying college, and was Sunday) was a his discretion to and used these factors but employed. He balanced post-sentence mo- “accept faxed range sen- aggravated concluded that an filed.” as the dan- tence was warranted because of happened. is what But Appel- Maybe the conduct and gerous nature of may It history. maybe happened. The court it is not what past criminal lant’s Kenner, 9721(b); (Pa.Super.2001). § A.2d 3. 42 Pa.C.S.A. Commonwealth
H09
approach
that President
White received
This Court’s
enforcement
rules,
procedural
whether local or state-
later and decided to consider it nunc
wide,
cir-
is dictated
the facts and
although
Maybe
tunc
it was late.
fax,
in each
case. To
Venango County accepts
cumstances
individual
filing by
procedur-
otherwise
probably
good
maybe
analyze
which
idea.
would exalt
But
rules,
for efficien-
does
al
were created
Venango County
not. The
Rules
fairness,
posted
cy
beyond
to a status far
on the Internet are
silent on
power.
subject.
do
their inherent
“It has been our
justWe
not know.
have a
We
overlook ...
errors
policy
faxed motion in the record
time
with a
it,
substantially complied
stamp
party
when a
has
but that is all.
requirements
rule and no
¶ I
5 have
what
no idea
prejudice would
‘Procedural
result.
thought
in this case.
We are
themselves,
rules are not ends in
but
just
able to read
mind.
believe it is
whereby justice,
expressed in
means
likely
he knew
the motion was a
principles,
legal
They
is administered.
few
late
neither
attor-
the district
are not to
the status
be exalted to
ney
thought
nor he
fair to deny Felmlee
”
*5
objectives.’
substantive
right
post-sentence
his
a
to file
motion.
v.
Feingold
Southeastern Pa. Transp.
only way
find out
to
whether or not
Auth.,
567,
1270,
512 Pa.
517 A.2d
ten-day
met
requirement
is
(1986)(citations omitted).
to remand the case for a
hearing. While
¶
Indeed,
panel
another
this court
would find that President Judge White
“[procedural
has said that
rules are not
jurisdiction
was within his
and treated the
jurisdictional limitations,
overlooking a
tunc,
pro
say
motion as filed nunc
I cannot
not,
procedural
itself,
defect does
in and of
whether or
not
should be considered
jurisdiction
alter the
of the court.” Com-
filed on
Laskaris,
339,
Pa.Super.
monwealth
¶
example
6 This
problems
is one
of the
(1989).
16, 21
pan-
561 A.2d
The Laskaris
we,
court,
that occur
appellate
when
as an
guidance
foregoing
el drew
from the
ex-
decide that a time limit for a lower case
cerpt
Feingold
and from Kurtas v.
filing was exceeded or
something
(1989)
Kurtas,
order the motion filed and hears the case. (b) is a hyper-technical reading believe this entry within 30 unjust the rule that is unnecessarily denying oper-
order the motion by deprives judge appropriate the trial dis- ation of law cases in cretion. It is clear that President fails decide the motion
White would have been well within his sentence, rights to vacate the since al- (B)(3) provides: Subsection though passed, had ten (3) Time Limits Decision on Motion. passed. The fact that he instead The judge shall not vacate sentence merely scheduled a rule date returnable pending decision on the change for the Motion should not matters. tence but shall decide the Therefore, I believe it appropriate to ad- para- provided in this dress merits of the Motion. graph. (B)(3) Subsection further states that unless ¶ 19 I appropriate believe the reasons *7 judge the the grants decides motion or an quashed that this need not be days extension within 120 of its the filing, following: the motion shall opera- be deemed denied jurisdiction 1. trial court The retains 720(B)(3)(a). tion of law. Pa.R.Crim.P. days for thirty after sentence. Even if no ¶ case, 16 In this President Judge White post-sentence motion the judge is decided the well within the time jurisdiction still has for 30 to vacate However, provided limits the rule. a filing the sentence. Late noted, appears it the initial motion defect, is a not a tence motion may have been filed three late. De- jurisdictional defect. spite possible filing, the late the Common- objection, wealth made no President motion, post-sentence although 2. The promptly a set rule returnable date specifically consideration asking not for motion, the the on motion was heard tunc, why nunc the mo- pro documented denied the on merits and well within pro and nunc consider- was late tunc fact, limit, 120-day within 60 days. appropriate. ation New counsel had White, however, case, 17 run- given entered the and was at obviously looking procedure, prison the new around at the and was unable to 1112 stated, trial court has the discretion “[T]he
communicate with his client within ten
untimely post
to treat
trial
motions as
[sic]
days.
all.” Id.
they
if
not been filed at
at
had
The
3.
trial court should be deemed to
added). However,
(emphasis
if a
trial
pro
a
motion nunc
tunc when
consider
late
court has the discretion to treat
untime-
a
judge
schedules a
on
if it had
ly post-sentence motion as
not
days of sen-
thirty
sentence motion within
all,
logically
follows that a
at
The
should not turn on wheth-
tence.
case
possesses
trial court
the discretion to
also
magic
er
words are used.
untimely post-trial
treat an
motion as if it
4. The new rule directs that
trial
exactly
filed. That
is
had been
judgment
judge should not vacate
Judge White did here.
what President
considering post-sentence
sentence when
appel-
is not the first time our
judge,
days,
motion. Once the
confusion that
late courts
addressed
makes the
a late-filed
decision
consider
try
lawyers
judges
results when
post-sentence
hearing,
sets
interpret
crystal
new rules that are
post-sentence
the mechanism of
rales
Widmer,
In
clear.
Commonwealth v.
judge
applies
directed
(1997),
Pennsyl-
A.2d 211
while con-
judgment
vacate
Supreme
rejected
vania
this court’s
sidering the motion.
Hodge,
application of Commonwealth
(1995).
Pa.Super.
1H3 1410(B)(3) Widmer, (now 720(B)(3)), ion of now Cappy Chief Justice Rule where he called for the Criminal Rules provides: (then revisit Committee to Rule 720 Rule judge The shall not vacate 1410). Cappy Chief While Justice pending on the decision concerned about the rule’s “clear void” in motion, but decide shall the dealing weight with issues relating provided paragraph. in this claims, appears evidence there is a ¶29
good transcript January deal more rule needs clarification. hearing judge, reflects Commonwealth, and the as- defendant sum, 26 In jurisdictional there was no being sumed the motion was considered defect in the proceedings before pro The entirety nunc tunc. of the hear- Rather, worst, court. was a pro- there ing dealt cedural in that with merits of Felmlee’s defect Felmlee’s proce- tence motion was filed late. Such sentence motion. There is not a sin- even dural defect can be the trial overlooked mention gle by either the Commonwealth jurisdiction. if judge judge still has Judge any or President White of timeli- Here, Judge jur- President White still ness issue.
isdiction and chose to overlook late Judge ruling 30 President White’s filing. not trample We should motion, which he read into the record discretion. during January hearing, dem- onstrates was denying that he the motion 2. The judge action of the trial shows its He considering he on merits. scheduled the the motion nunc pro thirty days tunc. motion within of sen- tencing. procedure, He followed the new Judge President did not White and issued his order on merits well fuse to consider the motion for untime- the date Felmlee’s above, liness. ample As noted were there tion was see Pa.R.Crim.P. reasons that this motion have should been 1410(B)(3)(a) (now pro considered Pa.R.Crim.P. nunc tunc because 720(B)(3)(a)), complied difficulties counsel had in the rule contacting his client. issued an specifying ruling the contents of an order order on December 2000 scheduling a upon See motion. hearing on Felmlee’s motion. President 1410(B)(4) (now R.Crim.P. Judge White followed procedure set 720(B)(4)). (now 1410(B)(2)(b) forth in Pa.R.Crim.P. ¶ 31 Had real- 720(B)(2)(b))by Rule scheduling hearing. ized highly there was a chance for a tech- Therefore, it seems that President interpretation require- nical of the time grant
White’s intention was in effect ment for filing of the motion pro nunc tunc and probably judg- have would vacated the treat if the motion as filed. were analysis ment. An of what would rule, new Under the if a why done it makes no demonstrates judge is to consider a not to allow him to sense consider pro tunc, motion nunc First, motion nunc tunc. he would *9 vacating directed refrain Immediately after- judgment. vacate the judgment. wards, judgment. he would reinstate the Then the defendant would have another 28 President White followed the specific days directive to file ten running and then the 120 would start
again. Common sense dictates that this required experienced and this
not sensibly the substantive addressed
issues before him. opinion may be majority 32 While the motion
correct timely, it could have
could have been highlights filed late well. This
been as Court,
problem that occurs when this own, issue finds an waived when do find
parties and the trial Court not not
waiver. We do not know whether or Venango County procedures allow or
prohibit We when filings. do know copy got might Clerk’s office—it
manually Wednesday, two filed on event, In any
after it was faxed. Presi-
dent considered no
within 30 of sentence. There is
reason we should not well. noted, agree As I with the result majority, although I would
reached for a different rea- quash the join majority agreeing
son. affirmed on its sentence should be
merits. BIERNACKI, Appellant,
Virginia
PRESQUE ISLE CONDOMINIUMS INC., ASSOCIATION,
UNIT OWNERS Presque known Isle Condo
also Inc., Association,
miniums Owners Appellee. Landscaping,
Great Lakes Pennsylvania.
Superior Court March
Submitted 26, 2003.
Filed June