Opinion
J-S72039-17 No. 1334 EDA 2017
12-11-2017
COMMONWEALTH OF PENNSYLVANIA v. KAREN PALAIA Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 30, 2016
In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000719-2016 BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Karen Palaia, appeals from the judgment of sentence entered in the Court of Common Pleas of Monroe County after a jury found her guilty on twelve counts of intentionally possessing a controlled substance and one count of theft by unlawful taking. Sentenced to not less than one month nor more than 12 months' incarceration, to be followed by nine months' probation, Appellant challenges the sufficiency of the evidence, the court's exercise of sentencing discretion, and asserts that prosecutorial misconduct tainted both her trial and sentencing. We affirm.
The trial court aptly sets forth the facts and procedural history pertinent to the present appeal as follows:
Karen Palaia [hereinafter "Appellant"] was arrested on January 20, 2016, and charged with twelve counts of intentionally possessing a controlled substance, [35 P.S. § 780-113(a)(16),] as
well as one count of theft by unlawful taking[, 18 Pa.C.S. § 3921(a)]. Appellant was accused of stealing twelve pills of Adderall from a locked medicine cabinet located in the nurse's office at East Stroudsburg High School South ("the school"), where Appellant was employed as a security officer. Affidavit of Probable Cause. . . . Appellant was convicted of all 13 charges after a trial by jury.Trial Court Opinion, filed 5/17/17, at 1-4.
Appellant appeared for sentencing on August 11, 2016, at which time sentencing was continued to September 29, 2016, to permit Appellant to undergo a urinalysis and sign releases necessary to allow the Monroe County Probation Department to confirm any medication prescribed to Appellant with her treating physicians. Order of Court, August 11, 2016. . . . Appellant was sentenced on September 30, 2016, to one to twelve months' incarceration and a consecutive nine-month period of probation. Order of Court, September 30, 2016. Appellant was released on parole on October 31, 2016. Order of Court, October 25, 2016[.]
Appellant filed Post-Sentence Motions on October 11, 2016, asserting that (1) the evidence submitted at trial was insufficient to sustain the jury's verdict, (2) th[e trial] court abused its discretion in sentencing Appellant to a term of incarceration, and (3) the prosecution denied Appellant a fair trial by, inter alia, filing a vague and misleading information. [After reviewing Appellant's supporting brief (the Commonwealth filed no brief in opposition), the trial court] issued an opinion and order on March 22, 2017, in which [it] denied Appellant's Post-Sentence Motions.
Appellant timely filed a counseled Notice of Appeal on April 18, 2017. On April 21, 2017, the trial court entered an Order on the docket directing Appellant to file a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one days. Accordingly, Appellant's Rule 1925(b) Statement was due on or before May 12, 2017. The trial court's Order notified Appellant that any issue not properly included in this Statement timely filed and served pursuant to Pa.R.A.P. 1925(b) would be deemed waived.
On May 17, 2017, the trial court filed a Rule 1925(a) Opinion in which the court indicated that, as of that date, Appellant had not filed a Rule 1925(b) Statement as ordered. The trial court opined, therefore, that Appellant had waived all issues and requested that this Court quash the present appeal.
In response to the trial court's opinion, Appellant filed a counseled motion with the trial court seeking permission to file his concise statement nunc pro tunc. On May 24, 2017, the trial court entered an order denying Appellant's motion, but it requested, in the interest of judicial economy, that this Court address the merits of Appellant's appeal without first remanding for the filing of a supplemental Pa.R.A.P. 1925(a) Opinion because the issues raised herein are identical to those disposed of in the trial court's order and opinion denying Appellant's post-sentence motions. Trial Court Order, filed 5/24/17.
Pa.R.A.P. 1925(c)(3) provides that if an appellant court is convinced counsel has been per se ineffective in failing to file a court-ordered Rule 1925(b) statement in a criminal matter, the court shall remand for the filing of a concise statement nunc pro tunc. The Comment to Rule 1925 explains, and this Court has noted, "[paragraph (c)(3)] allows an appellate court to remand in criminal cases only when the appellant has completely failed to respond to an order to file a Statement." Note to Pa.R.A.P. 1925 (emphasis provided); see also Commonwealth v. Hill , 16 A.3d 484, 496 n. 15 (Pa.Super. 2011).
Here, although counsel failed to file a timely court-ordered 1925(b), he did file a motion to the court, immediately upon receiving the trial court's Pa.R.A.P. 1925(a) statement recommending quashal, explaining the reasons for his inadvertent filing omission, advising the court of the issues Appellant wished to raise, and seeking the trial court's permission to file a nunc pro tunc Statement to that effect. Therefore, in our view, there is absent in this case the "complete failure" to respond to an order to file a 1925(b) Statement contemplated by Pa.R.A.P. 1925(c)(3).
Moreover, there is no dispute below that the trial court's Order and Opinion denying Appellant's post-sentence motions addressed the very issues now raised before this Court, thus obviating the need for remand for preparation of a responsive trial court opinion. Hence, we agree with the trial court that the better course is to act in the interest of judicial economy and view Appellant's belated filing with the trial court as a proper statement of matters complained of on appeal.
Appellant presents the following three questions for our review:
I. WAS THE CIRCUMSTANTIAL EVIDENCE PRESENTED SUFFICIENT TO SHOW BEYOND A REASONABLE DOUBT THAT [APPELLANT] COMMITTED THEFT AND POSSESSED A CONTROLLED SUBSTANCE BELIEVED TO BE ADDERALL?
II. DID THE COURT ABUSE ITS DISCRETION IN IMPOSING A SENTENCE OF INCARCERATION WHERE
[APPELLANT] HAD A ZERO PRIOR RECORD SCORE AND THE PRE-SENTENCE INVESTIGATION RECOMMENDED PROBATION?Appellant's brief at 7.
III. WAS THE PROSECUTOR IN THIS CASE SO BIASED AGAINST [APPELLANT] SO AS TO DENY HER A FAIR TRIAL AND FUNDAMENTAL DUE PROCESS?
After a thorough review of the record, Appellant's brief, controlling case law, and the well-reasoned opinion of the trial court, we conclude that Appellant's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of each question presented. Accordingly, we adopt the reasoning of the trial court in this regard and affirm on this basis.
Appellant's third question presented asserts that the Commonwealth engaged in prosecutorial misconduct when it filed a criminal information listing January 20, 2016, as the sole offense date but presented evidence of Appellant's alleged criminal conduct occurring on December 9, 2015. "The Commonwealth knew or should have known the date of the offense it was intending to pursue occurred on or about December 10, 2015, not January 20, 2016, over a month later[,]" Appellant argues. Brief for Appellant, at 23. This disconnect between the criminal information and the evidence presented denied her the right to prepare adequately a defense to sufficiently specific charges, Appellant contends.
We disagree. Our review confirms the criminal information lists January 20, 2016, as the date of the eleven counts against her. In addition, January 20, 2016, was also listed as an offense date on page one the criminal complaint. Police Criminal Complaint, 2/25/16, at 1. However, in describing the conduct that formed the basis for charges against Appellant, the criminal complaint specified that Appellant "did on December 9, 2015. . . unlawfully [take] or exercised unlawful control over, movable property of another with intent to deprive him thereof, that is to say Palaia did take twelve (12)5 mg pills of Adderall from a locked medication cabinet in the nurse's office.... Id. at 2. The complaint also bases the possession of a controlled substance offense on Appellant's possession of the 12 pills of Adderall taken on that day. Id.
Furthermore, the affidavit of probable cause indicated that the affiant, Detective Mario Orlando of the Monroe County Office of the District Attorney, took a complaint regarding the missing Adderall on January 20, 2016, but it listed the date of the theft as December 9, 2015, and the date of discovery of the missing pills as December 10, 2015. The detective's affidavit also indicated that he viewed a surveillance video recorded on December 9, 2015 capturing Appellant opening the locked medication cabinet on the evening of December 9, 2015. When confronted with the video, a Mirandized Appellant told the detective she took only her potassium pills from the cabinet, the affidavit stated.
Our standard of review for a claim of prosecutorial misconduct is limited to whether the trial court abused its discretion. "In considering this claim, our attention is focused on whether the defendant was deprived of a fair trial, not a perfect one." Commonwealth v. Proctor, 156 A.3d 261, 271 (Pa. Super. 2017). Moreover, the purpose of advising a defendant of the date when an offense is alleged to have been committed is to provide him with sufficient notice to meet the charges and prepare a defense. Commonwealth v. Gibbons, 784 A.2d 776 (Pa. 2001).
Under the present facts, we cannot conclude that the Commonwealth deprived Appellant a fair trial by listing one offense date on the criminal information but presenting at trial evidence involving a different date that appeared in both the offense section and the affidavit of probable cause section of the criminal complaint. Indeed, Appellant had sufficient notice to prepare a defense to charges that she unlawfully took twelve Adderall pills from the school nurse's office on the evening of December 9, 2015. Such notice was amply reflected in trial counsel's unwavering defense, which was clearly designed to convince the jury that it should form reasonable doubt from events occurring from late November through and including December 9, 2015. Accordingly, we concur with the trial court's conclusion rejecting Appellant's prosecutorial misconduct claim.
Judgment of sentence is AFFIRMED. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/11/2017
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