J-S73027-16

2017 Pa Super 75

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

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. 

OPINION BY LAZARUS, J.: FILED MARCH 22, 2017

David Albert Boniella appeals pro se, from the judgment of sentence 

entered in the Court of Common Pleas of Fayette County, following his 

conviction of the summary offense of disorderly conduct. Upon review, we 

affirm.

The trial court summarized the relevant facts of this matter as follows:

On August 20, 2015, Appellant arrived at Mount Macrina Manor 

(hereinafter “Mt. Macrina”) nursing home in Uniontown, Fayette 

County, Pennsylvania[,] to attend a care plan meeting about his 

mother, who was a resident at the facility. Jolynn Meyers, an 

administrator at Mt. Macrina, testified that [Boniella’s] mother 

did not want [Boniella] present at the meeting. Unsatisfied with 

this news, [Boniella] went up the hall and attempted to enter his 

mother’s room where the meeting was taking place. Ms. Meyers 

blocked the door by standing in front of it; however, [Boniella] 

tried to reach past her and eventually entered the room, causing 

a heated discussion between [Boniella] and a member of his 

family. Ms. Meyers testified about [Boniella]:
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[A]nd several times he was very loud. At one point in time 

he pushed me, and even with my security people that I 

had there, he wouldn’t stop. We asked him to leave; he 

wouldn’t leave. And it escalated. There [were] . . . other 

people in the hall; it was loud and then I instructed my 

staff just to call the police and have them come.

Ms. Meyers further testified that several members of the Mt. 

Macrina staff were involved in attempting to calm [Boniella] 

down and that the situation disrupted other residents of the 

facility.

Trial Court Opinion, 1/17/17, at 2 (citation omitted).

On November 16, 2015, Magisterial District Judge Wendy D. Dennis 

convicted Boniella of disorderly conduct1and harassment.2 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 conduct and not guilty of harassment. Boniella was ordered to 

pay a $50 fine and court costs.

Boniella filed a timely notice of appeal, after which the trial court 

ordered him to file a concise statement of errors complained on appeal 

pursuant to Pa.R.A.P. 1925(b). Boniella failed to comply with the order. 

Upon review of the record, this Court determined that the order directing 

Boniella to file the Rule 1925(b) statement had been returned to the trial 

court as “undeliverable.” The order had been re-mailed to an updated

____________________________________________

1 18 Pa.C.S. § 5503.

2 18 Pa.C.S. § 2709.
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address, but Boniella alleged he had never received it. On this basis, we 

entered an order remanding this matter to the trial court to determine 

whether service had been effectuated. 

The trial court issued a new Rule 1925(b) order on November 21, 

2016, requiring Boniella to file a concise statement within 21 days. Boniella 

filed his statement on December 13, 2016. On appeal, Boniella challenges 

the sufficiency of the evidence and claims that the court erred in denying his 

request for court-appointed counsel.3

We first must address the consequences of Boniella’s untimely filing of 

his concise statement. Boniella had until December 12, 2016, to file his 

statement, but did not do so until the next day. We have stated that “where 

the trial court addresses the issues raised in an untimely Rule 1925(b) 

statement, we need not remand but may address the issues on their 

merits.” Commonwealth v. Brown, 145 A.3d 184, 186 (Pa. Super. 2016). 

See also Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) 

(en banc) (“[I]f there is an untimely filing, this Court may decide the appeal 

on the merits if the trial court had adequate opportunity to prepare an 

opinion addressing the issues being raised on appeal”). 

Critically, however, we note that Brown and Burton apply to 

counseled defendants, rather than those proceeding pro se. This is because 

____________________________________________

3 While Boniella’s statement includes 18 numbered paragraphs, he raises 

only the two separate issues noted above.
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counsel can be considered to be ineffective per se for failing to file a timely 

Rule 1925(b) statement. See Pa.R.A.P. 1925(c)(3) (“If an appellant in a 

criminal case was ordered to file a Statement and failed to do so, such that 

the appellate court is convinced that counsel has been per se ineffective, the 

appellate court shall remand for the filing of a Statement nunc pro tunc[.]”); 

see also Burton, 973 A.2d at 433 (untimely filing of Rule 1925(b) 

statement by counsel is per se ineffectiveness). Accordingly, we consider 

untimely counseled Rule 1925(b) statements on the basis of judicial 

economy. See Comment to Ra.R.A.P. 1925(c)(3). 

It is a longstanding principle that a pro se litigant cannot be ineffective 

on his or her own behalf. See Commonwealth v. Fletcher, 517, 986 A.2d 

759, 773 (Pa. 2009) (“The law prohibits a defendant who chooses to 

represent himself from alleging his own ineffectiveness.”). Thus, our 

rationale for considering an untimely Rule 1925(b) statement disappears 

where it is filed by a pro se litigant. Therefore, we are constrained to find 

that Boniella’s issues are waived in the instant matter. 

In light of the foregoing, we also note that Boniella would not be 

entitled to relief even if his Rule 1925(b) statement had been timely filed. 

In his first issue, Boniella challenges the sufficiency of the evidence to 

convict him of disorderly conduct. In considering sufficiency of the evidence 

claims, 

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, 

support the conviction beyond a reasonable doubt. . . . Where 
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there is sufficient evidence to enable the trier of fact to find 

every element of the crime has been established beyond a 

reasonable doubt, the sufficiency of the evidence claim must fail. 

Of course, the evidence established at trial need not preclude 

every possibility of innocence and the fact-finder is free to 

believe all, part or none of the evidence presented.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc). 

A person is guilty of disorderly conduct if he or she, “with intent to 

cause public inconvenience, annoyance or alarm, or recklessly creating a risk 

thereof,” does any of the following:

(1) engages in fighting or threatening, or in violent or 

tumultuous behavior;

(2) makes unreasonable noise;

(3) uses obscene language, or makes an obscene gesture; or

(4) creates a hazardous or physically offensive condition by any 

act which serves no legitimate purpose of the actor.

18 Pa.C.S. § 5503.

Boniella asserts that he did not intend to create a disturbance and that 

he did not engage in any of the enumerated actions in section 5503, since 

his behavior was not violent, overly loud, and was intended to serve the 

purpose of leaving Mt. Macrina with his father, who had arrived with him. 

Brief of Appellant, at 13. However, the nursing home administrator, Ms. 

Meyers, testified that Boniella pushed her, was very loud, and disrupted 

other residents in the nursing home. See N.T. Trial, 2/24/16, at 7. Ms. 

Meyers’ testimony provided sufficient evidence to prove that Boniella was 

guilty of disorderly conduct, and the trial court was free to believe the 

evidence presented. Watley, supra.
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Boniella also argues that the trial court erred in denying his request for 

the appointment of counsel. Our rules of criminal procedure specify that 

counsel is to be appointed “in all summary cases, for all defendants who are 

without financial resources or who are otherwise unable to employ counsel 

when there is a likelihood that imprisonment will be imposed.” 

Pa.R.Crim.P. 122(A)(1) (emphasis added). As we have noted, “[t]he 

purpose of [Rule 122 is to] ensure[ n]o defendant in a summary case may 

be sentenced to imprisonment unless the defendant was represented at trial 

by counsel.” Commonwealth v. Blackham, 909 A.2d 315, 318 (Pa. Super. 

2006) (citation and quotation marks omitted). 

Here, the trial court indicated that although a term of imprisonment 

was a possible sentence for a conviction of disorderly conduct, it was 

unlikely that imprisonment would be imposed. Furthermore, Boniella’s 

actual sentence was limited to a fine and court costs. As we noted in 

Blackham, “[b]ecause the trial court determined before trial that a term of 

imprisonment was unlikely, and no term of imprisonment was imposed, the 

trial court correctly concluded that it had no obligation to appoint counsel.” 

Id. Thus, the trial court did not err in denying Boniella’s request for the 

appointment of counsel.

Judgment of sentence affirmed. 

Judge Jenkins did not participate in the consideration or decision of 

this case.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/22/2017