J-S19032-24 J-S19033-24 J-S19034-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSEPH JOHN LESCHINSKIE, JR. : : Appellant : No. 1537 MDA 2022
Appeal from the Judgment of Sentence Entered July 26, 2022 In the Court of Common Pleas of Northumberland County Criminal Division at No(s): CP-49-CR-0000116-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSEPH JOHN LESCHINSKIE, JR. : : Appellant : No. 1750 MDA 2022
Appeal from the Judgment of Sentence Entered July 26, 2022 In the Court of Common Pleas of Northumberland County Criminal Division at No(s): CP-49-CR-0000116-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JOSEPH JOHN LESCHINSKIE, JR. : No. 1057 MDA 2023
Appeal from the Order Entered July 5, 2023 J-S19032-24 J-S19033-24 J-S19034-24
In the Court of Common Pleas of Northumberland County Criminal Division at No(s): CP-49-CR-0000116-2021
BEFORE: DUBOW, J., BECK, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: DECEMBER 23, 2024
These appeals were filed after a jury before the Court of Common Pleas
of Northumberland County found Defendant, Joseph John Leschinskie, Jr.,
guilty of terroristic threats.1 In duplicate appeals, filed at different stages
during the torturous post-trial procedural history of this case, Defendant asks
us to find that his pro se post-sentence motion did not offend considerations
of hybrid representation and his in-trial requests for a mistrial based on
references to his status as a convicted felon should have been granted. In its
appeal, the Commonwealth challenges the post-sentence grant of a mistrial
based on the trial references to Defendant’s convicted felon status and asserts
that its prosecution will be terminated or substantially handicapped if it would
be forced to retry its case against Defendant.
Following a Shamokin city council meeting on September 14, 2020,
Defendant approached city councilwoman Jennifer Seidel across a table from
her and continued a disagreement between them that was discussed during
the meeting. N.T. 5/17/22, 50, 83. He told her to swear on her life and the
lives of her children that she did not know something that he had been talking
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2706(a)(1).
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about in the meeting. Id. at 50. When she did as much, he muttered, “I
hope your kids die.” Id. at 51. He next told her that she did not deserve her
seat on the city council and maintained that she only won the support of a
particular ward because of him. Id. at 51, 83. She contested his point about
her election, and, in response, he called her “a cunt.” Id. at 51, 83, 168. At
that moment, Defendant hit the table in front of him and reached over it to
put “a finger in her face.” Id. at 51, 83. Councilwoman Seidel’s husband,
Erik, then moved in between Defendant and his wife. Id. at 52-53, 83.
Defendant said to Mr. Seidel, “You know she doesn’t deserve that seat.
That bitch should give that seat up.” N.T. 5/17/22, 53, 84. Mr. Seidel asked,
“Why,” and Defendant responded, “Because that’s my seat.” Id. at 53, 85.
Mr. Seidel told him, “You can’t even hold a seat, you’re a convicted felon.” Id.
at 53. Defendant responded, “I am going to punch you right in your fucking
face.” Id. at 58, 86, 96. Defendant pulled his right arm back and a local
police chief restrained him. Id. at 58, 96-97. As the police chief pulled him
away and outside, Defendant repeatedly yelled, “Let me back at ‘em,” and
said, “If he wants to fight me, I’ll fight ‘em here.” Id. at 58, 60, 86, 97, 138.
While the Seidels were still inside, Ms. Seidel’s mother, who was in the outside
parking lot, heard Defendant yell, “Bring ‘em out. Come on out, Erik, I’ll bury
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you. Come on, Erik. Bring them both out. I’ll bury them both.”2 Id. at 105.
He also screamed, “He wants the felon. I will give him the felon.” Id. at 106.
Afterwards, the Seidels were escorted out of the building to their car. Id. at
62. At that time, Defendant followed the direction of the Seidels, pacing
across the street, while yelling, “There are those mother fuckers. You are
going to be picking your teeth off the ground. You are going to pay. I am
going to make you pay. I am going to kill you. I am going to fucking kill both
of you.” Id. at 62, 65, 89. Defendant also repeated that he was going to
punch Mr. Seidel in his “fucking face” and, upon leaving the scene in his car,
yelled to Mr. Seidel, “I’ll see you in a dark alley.” Id. at 65-66, 89-90, 100,
120, 175-77.
The Commonwealth charged Defendant with two counts of terroristic
threats and six counts of disorderly conduct with respect to his actions
following the city council meeting. Criminal Complaint, 9/24/20, 1-4; Bill of
Information, 2/11/21, 1. He proceeded to a one-day jury trial on May 17,
2022. The Commonwealth presented seven witnesses: the Seidels; Ms.
Seidel’s mother who went to the city council meeting after she had been ____________________________________________
2 After Ms. Seidel’s mother heard him make the “bury them both” remark, she
retrieved her cellular phone from her car and recorded a four-minute video before going inside the meeting venue to check on her daughter. N.T. 5/17/22, 106, 114-15, 124-25. Segments of that video were played at Defendant’s trial. Id. at 116-17. Defendant was heard on the video saying, among other things: (1) “I’ll catch him in a dark fucking alley when he’s up there crying;” (2) “I’ll knock him the fuck out;” (3) “I will destroy the mother fucker;” and (4) “She would have been picking her fucking teeth out.” Id. at 117-18.
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watching an online video feed of the meeting (Jacquelin Klemick); an off-duty
police officer who escorted the Seidels to their car (Officer James Filco); the
police chief who escorted Defendant out of the meeting room (Chief Darwin
Tobias); a chief county detective who investigated the incident at the meeting
for the District Attorney’s Office (Degg Stark); and a city administrator who
was present for the meeting and escorted the Seidels to their car (Robert
Slaby). Defendant testified and presented two additional witnesses who had
been present at the meeting: the city solicitor (Vincent Rovito) and a public
audience member (Jamie Yerkes).
Mr. Rovito denied that Defendant “use[d] a derogatory term like cunt”
or made any comment to Ms. Seidel “about killing her children.” N.T. 5/17/22,
193. He also denied that Defendant had attempted to throw a punch. Id. at
194, 202. He testified that Defendant said to Mr. Seidel, during their
exchange, “Oh, dude, you better back up or I’m gonna hit you.” Id. at 199-
201. He asserted that Defendant willingly left the meeting room with the
police chief but agreed that Defendant was yelling, “Let me at ‘em,” at that
time. Id. at 200-01.
Ms. Yerkes denied that she heard Defendant threaten to kill anyone.
N.T. 5/17/22, 204. She went outside as the police chief “was pushing
[Defendant] out” and agreed that she attempted to strike Defendant, by trying
to “smack” him, as she was going out the door. Id. at 205-07. On cross-
examination, she referred to Mr. Seidel calling Defendant “a felon” as the
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cause of the “commotion” at the meeting. Id. at 216. Ms. Yerkes
acknowledged that she responded, “Rooting for you,” in response to a
Facebook post that Defendant made about his trial. Id. at 229-30.
Defendant denied that he called Ms. Seidel “a cunt.” N.T. 5/17/22, 248
(“That word is not in my vocabulary. No. I absolutely did not.”). He also
denied that he called her “a bitch.” Id. at 248 (“I have respect for women. I
wouldn’t do that.”). He recalled that he asked Ms. Seidel to “swear on her
children” as to her truthfulness on a matter but denied that he said that he
wanted her children to die. Id. at 247-48, 266-67. He recalled that Mr. Seidel
“approached [him] from behind and made a vulgar and derogatory comment”
to him, but denied that he attempted to strike Mr. Seidel. Id. at 248-49. He
admitted that he told Mr. Seidel, “I would punch him in his fucking face,” in
response to Mr. Seidel’s remark. Id. at 249-50, 263. He denied that the
police chief had restrained him or grabbed his arm before he left. Id. at 251.
He agreed that, after he was escorted outside, he was still upset and could
have been yelling things, but he denied that he followed anyone down the
street. Id. at 254. He denied that he said anything to the Seidels when they
came outside. Id. at 255. He agreed, consistent with the cellphone video
that had been played earlier at the trial, that he said something about “a dark
alley and knocking [Mr. Seidel] out.” Id. at 255-56. He denied that he
threatened to kill or assault the Seidels or that he made any statements with
the intent to terrorize them. Id. at 257.
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On cross-examination, Defendant suggested that his statement, “I will
punch you in your fucking face,” was permitted free speech. N.T. 5/17/22,
258 (“I think some things can be altered [sic] as First Amendment Free Speech
without intent.”). He denied that he told Ms. Seidel, “I hope your kids die.”
Id. at 271. As for his statement, “She’d be picking up her fucking teeth,”
Defendant claimed that statement was made in reference to Ms. Yerkes, and
not Ms. Seidel, after Ms. Yerkes had attempted to strike him, implying that his
wife would do something. Id. at 271-72 (“I was referencing that about my
wife to Jaime. There was no -- that was not to any of the Seidels. My wife is
-- I have seen her before. She is a fairly tough girl…”). He also denied that
he said, “I’ll fuckin’ kill both of you,” and “I’ll see you in a dark alley.” Id. at
272-73.
As it is relevant to the parties’ claims on appeal, we note that there were
three instances in the trial testimony where witnesses referenced Defendant’s
status as a prior convicted felon. In the first instance, Ms. Seidel quoted on
direct examination her husband’s statement to Defendant, “You can’t even
hold a seat [on the city council], you’re a convicted a felon.” N.T. 5/17/22,
53. Defendant’s counsel made a mistrial request, suggesting that the
prosecutor had “brought it out deliberately.” Id. at 53. The prosecutor denied
that it was elicited deliberately and suggested that the court could offer a
curative instruction. Id. at 54. The court noted that Defendant did not file a
motion in limine “about the issue.” Id. Defense counsel responded that the
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prosecution did not file a motion concerning prior bad acts. Id. at 54-55. The
court denied the mistrial request and opted to give the following instruction to
the jury:
Member of the jury, you have heard reference to the fact that there was testimony that to the effect that Mr. Leschinskie was a felon. That is not in any way to be held against the defendant. You have taken -- that is not in any way to be held against him. You have taken an oath that you will decide this case based strictly on the evidence presented here. The defendant is presumed to be innocent of the charges filed against him in this matter. You cannot in any way hold the statement against the defendant that he is a felon, against him in any way. It is not determinative of anything in this trial as it relates to guilt or innocence. The issue here is whether or not the defendant committed these acts, any of these acts on September 14th. It is not an issue of what he may have done before, or what his criminal record is, if any. That’s not relevant. You are to base -- you are to base your case, your findings strictly on the evidence presented in this, and the fact that somebody said to him that Mr. -- and counsel said you are going to hear other people, you may hear other people in the other case say that he is, the defendant is a felon, is not in any way to be held against him at all.
N.T. 5/17/22, 56-57.
In the second instance, Ms. Seidel’s mother testified on direct
examination that she saw Defendant outside the city council meeting
screaming, “He wants the felon. I will give him the felon.” N.T. 5/17/22, 106.
Defendant’s counsel again moved for a mistrial and asserted that the “felon
stuff” should not be in front of the jury and that a cautionary instruction would
be insufficient. Id. at 107. The prosecutor confirmed that she instructed her
witnesses “not to mention the felony thing.” Id. The court decided to deny
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the mistrial request and instead opted to offer another cautionary instruction.
Id. The court mentioned the fact that the reference in question concerned a
statement made by Defendant and noted again that Defendant did not file a
motion in limine. Id. at 107-08. The court offered the following instruction
to the jury:
Members of the jury, again, you are to disregard the testimony regarding the word, “Felon.” I have already instructed you and I, again, instruct you that that is to play no role in your consideration of this matter. It is irrelevant for today’s purposes. The only issue is -- the only issues today are whether the defendant committed one or more of the acts that he is alleged to have committed. The issue of a felon is to play no role in your consideration whatsoever. If any of you believe you cannot honor that, you need to communicate that to us over the lunch break. Thank you.
N.T. 5/17/22, 108.
In the last instance, Jamie Yerkes referenced, on cross-examination,
that she heard the commotion in the city council meeting because Mr. Seidel
called Defendant “a felon.” N.T. 5/17/22, 216. In response, the judge
removed the jurors from the room. Id. In the ensuing sidebar, Ms. Yerkes
asserted that she did not hear anyone caution her not to mention that
Defendant was a felon in her testimony and defense counsel maintained that
he did as much. Id. at 217. As follows, the court sustained an objection to
the testimony, apparently speaking to the witness in that regard, and offered
another instruction to the jury:
Ma’am, the defense counsel has objected and the court has ruled that the issue of whether or not [defense counsel] [sic] is a felon
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is not to be raised in this proceeding. So, please do not make any further reference to that.
The jury is instructed to disregard that testimony. The issue here is whether or not [defense counsel] -- I'm sorry -- Mr. Leschinskie committed any of the acts as alleged in the charging instruction, in the Information. You may continue…
N.T. 5/17/22, 218.
At the end of the one-day trial, the jury found Defendant guilty of one
count of terroristic threats, with respect to Mr. Seidel, and acquitted him of
another terroristic threats charge, with respect to Ms. Seidel, and three counts
of disorderly conduct. N.T. 5/17/22, 315; Verdict Sheet, 5/17/22, 1. The
court also acquitted him of three summary offense counts of disorderly
conduct. N.T. 5/17/22, 316; Judgment Form, 5/17/22, 1. Sentencing was
deferred for the preparation of a pre-sentence investigation report. N.T.
5/17/22, 317.
On June 6, 2022, defense counsel filed a motion seeking a continuance
of the sentencing hearing then scheduled for July 26, 2022, because counsel
expected that Defendant would be filing an appeal and counsel would be away
at that time on a prepaid vacation. Application for Continuance, 6/6/22, § II.
The court denied the request and, at the scheduled hearing, sentenced
Appellant to six to twenty-three months’ imprisonment, to be followed by
three years’ probation. Sentencing Order, 7/26/22, 1; N.T. 7/26/22, 19.
Immediately after the sentence was imposed, Defendant brought to the
court’s attention that his private attorney was leaving for the next six weeks
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and thus would be unavailable during the period for filing either a post-
sentence motion or an appeal. N.T. 7/26/22, 20. He offered to fill out an in
pauperis form for the possible appointment of counsel due to his existing
counsel’s unavailability. Id. at 20-21. The court declined to act on the request
for the appointment of new counsel because his counsel of record had made
no formal request to withdraw from representation. Id. at 21 (“THE COURT:
It’s premature for me to address that at this point, sir. I don’t have anything
in front of me. You have counsel of record and I haven’t seen any application
for in forma pauperis or anything else.”).
On the next day, defense counsel filed a motion to withdraw as counsel
which notified the court that he would be “out of state and unavailable for any
[h]earing for the next five (5) weeks as he [would be] on a prepaid vacation
out of state.” Motion to Withdraw as Counsel, 7/29/22, ¶ 6. On August 2,
2022, Appellant filed a Praecipe to Proceed in Forma Pauperis, which the court
granted on the same date. Though the ten-day deadline for any post-sentence
motion to be filed for Defendant would have expired on August 5, 2022, the
court scheduled a hearing for counsel’s motion to withdraw on September 7,
2022. Order, 8/2/22, 1. With counsel still of record, Defendant filed a pro se
post-sentence motion on August 3, 2022. In the motion, Appellant claimed,
inter alia, that the trial court erred by denying his requests for a mistrial in
connection with the trial references to him as a felon. Pro Se Post-Sentence
Motion, 8/3/22, ¶¶ 2-3. Appellant also filed a pro se notice of appeal on
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August 24, 2022.3 On September 7, 2022, the court convened the hearing on
the pending motion to withdraw as counsel and granted it. Order, 9/7/22, 1;
N.T. 9/7/22, 2. Appellant thereafter filed a counseled motion for the
appointment of new counsel. Motion to Appoint Counsel, 9/13/22, 1.
On September 14, 2022, the trial court ordered the parties to file briefs
with respect to Defendant’s pro se post-sentence motion. Order, 9/14/22, 1.
On September 22, 2022, Defendant filed pro se motions seeking the
disqualification of the trial judge from the case and the appointment of new
counsel. He also filed his pro se brief on his post-sentence motion on
September 26, 2022. The Commonwealth filed its response to the post-
sentence motion on October 14, 2022.
On October 25, 2022, the trial court convened a hearing on the judicial
disqualification and counsel appointment motions. The court admitted that it
was unaware of Defendant’s pro se post-sentence motion until after its
issuance of a Rule 1925(b) order on August 31, 2022. N.T. 10/25/22, 5. It
ordered the appointment of new counsel and deferred argument on the
disqualification motion to another date. Order, 10/25/22, 1.
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3 This notice initiated Defendant’s appeal at 1537 MDA 2022. The trial court issued an order pursuant to Pa.R.A.P. 1925(b) with respect to that appeal and then vacated the order when the court subsequently became aware of Defendant’s pro se post-sentence motion. Order, 9/7/22, 1. Despite the vacation of the Rule 1925(b) order, Defendant filed a pro se Rule 1925(b) statement on September 21, 2022.
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On December 19, 2022, newly appointed defense counsel filed an
amended post-sentence motion, adopting the claims from Defendant’s pro se
post-sentence motion, and a nunc pro tunc motion for reconsideration of
sentence. Amended Post-Sentence Motion, 12/19/22, ¶ 9. On December 22,
2022, Defendant filed a counseled notice of appeal, referencing the sentencing
order from July 26, 2022, and supposed orders from December 1 and
December 8, 2022.4 Notice of Appeal, 12/22/22, 1. The December orders
are dehors the certified record for these appeals and not referenced as filed
in the trial court’s docket.
Despite the filing of the second defense appeal, the trial court
simultaneously scheduled a hearing on the nunc pro tunc post-sentence
motion for reconsideration of sentence and ordered the filing of a Rule 1925(b)
statement.5 Order, 1/3/23, 1; Order, 1/4/23, 1. On February 14, 2023, the
trial court reinstated Defendant’s post-sentence motion rights nunc pro tunc
and Defendant filed a new counseled post-sentence motion, which included,
inter alia, his claim that he should have been granted a mistrial based on the
trial references to him as a felon. Order, 2/14/23, 1; Post-Sentence Motion,
2/14/23, ¶¶ 6(b), 16-20. The parties subsequently filed responsive briefs
ordered by the trial court. Assuming that the February 14, 2023 post-
sentence motion would be denied by operation of law as of June 14, 2023, ____________________________________________
4 This notice initiated Defendant’s appeal at 1750 MDA 2022.
5 Defendant filed a counseled Rule 1925(b) statement on January 23, 2023.
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Defendant filed a counseled motion seeking a thirty-day extension of the
consideration period of the post-sentence motion on June 6, 2023. The trial
court granted that motion on the next day.
On July 5, 2023, the trial court issued an order and opinion granting
relief on Defendant’s post-sentence motion. The court rejected challenges to
the sufficiency of the evidence and the discretionary aspects of the imposed
sentence, but agreed with the remaining claim that a mistrial should have
been granted with respect to the trial references to Defendant being a felon.
As for the felon references, the court noted, “[T]he cumulative prejudicial
effect, the nature of the remarks, and the fact that the remarks were exploited
by the Commonwealth in all three instances, albeit not maliciously, is too
much for three curative instructions to address.” Opinion, 7/5/23, 6
(unpaginated).
On July 1, 2023, the Commonwealth filed a notice of appeal from the
July 5, 2023 order. In a certification attached to the notice, the
Commonwealth asserted that it was appealing pursuant to both Pa.R.A.P.
311(d) and Pa.R.A.P. 311(a)(6).6 Certification, 7/1/23, 1. We hereby sua
sponte consolidate these three appeals as the issues presented in them arise
from the same convoluted procedural history and essentially ask us to resolve
____________________________________________
6 The Commonwealth also timely filed a court-ordered Rule 1925(b) statement
on August 9, 2023.
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identical issues concerning the post-trial resolution of Defendant’s requests
for a mistrial. See generally Pa.R.A.P. 513.
Defendant presents the following questions for our review:
[I]. Does this Court have jurisdiction o[ver] the present appeal(s)?
[II]. If this Court determines that it does have jurisdiction over the merit of the appeal(s)[,] should a mistrial be granted?
Defendant’s Brief for Appellant, 3 (suggested answers omitted).
The Commonwealth presents the following questions for our review:
I. Whether an error of law occurred when the trial court granted a post-sentence motion for a mistrial when curative instructions to the jury were sufficient to protect the Defendant from any prejudicial effect of references to his convicted felon status, which was relevant to the Commonwealth’s case?
II. Whether the Commonwealth’s case will be terminated or substantially handicapped where three defense requests for a mistrial were denied during trial, yet a mistrial was granted more than one year later following a post-sentence motion, and the Commonwealth would be forced to re-try the case after the passage of time?
III. Whether the Commonwealth’s case will be terminated or substantially handicapped if forced to re-try the case where reference to the Appellee’s convicted felon status cannot be extricated without prejudicing the Commonwealth’s case and presentation to a jury[?]
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Commonwealth’s Brief for Appellant, 2-3 (unnecessary capitalization and
proposed answers omitted).7
Before we may consider the merits of the parties’ substantive claims
concerning the appropriateness of a mistrial grant, we must resolve which of
the appeals are properly before us. Defendant is appealing the order imposing
his judgment of sentence on July 26, 2022, and the Commonwealth is
appealing the entry of the order granting a mistrial trial on July 5, 2023. Both
these orders cannot be appealed at the same time.
Generally, after an appeal is taken the trial court may no longer proceed
further in the matter. Pa.R.A.P. 1701(a). If the pro se post-sentence motion
was a nullity because it was a form of improper hybrid representation, and the
pro se defense notice of appeal, filed on August 24, 2022, or the counseled
defense notice of appeal, filed on December 22, 2022, divested the trial court
of jurisdiction, then the subsequent order granting a mistrial must also be
nullity. See Bell v. Kater, 839 A.2d 356, 357-58 (Pa. Super. 2003) (quashing
appeal nunc pro tunc where the trial court court granted a petition reinstating
the appellant’s appellate rights nunc pro tunc while the appellant’s first, ____________________________________________
7 For the sake of clarity we will refer to the Commonwealth’s brief at 1057 MDA 2023 as the “Commonwealth’s Brief for Appellant” and refer to its responsive briefs at 1537 MDA 2022 and 1750 MDA 2022 as the “Commonwealth’s Brief for Appellee.” In turn, we will refer to Defendant’s briefs at 1537 MDA 2022 and 1750 MDA 2022 as the “Defendant’s Brief for Appellant” and refer to his responsive briefs at 1057 MDA 2023 as the “Defendant’s Brief for Appellee.” Because Defendant’s briefs at 1537 MDA 2022 and 1750 MDA 2022 are identical, we will only refer to them as a singular brief.
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untimely appeal was pending before this Court). At the same time, if the trial
court did not timely rule on the post-sentence motion in this case, then the
resulting order granting a mistrial could have been rendered a legal nullity if
it was issued at a time in which the trial court lacked jurisdiction. See
Commonwealth v. Martinez, 141 A.3d 485, 490 (Pa. Super. 2016) (stating,
“a trial court retains jurisdiction to rule on a post-sentence motion only for the
duration of the disposition period as set forth in [Rule] 720(B)(3)”) (original
quotation marks and citation omitted); see also Commonwealth v.
Bentley, 831 A.2d 668, 669 (Pa. Super. 2003) (recognizing that “jurisdiction
goes to a court’s fundamental authority to entertain claims,” and finding that
the trial court lacked authority to issue an order deciding the defendant’s post-
trial motion beyond the timeframe allowed under Rule 720); Pa.R.Crim.P. 720
at Official Comment – Disposition (stating the trial court retains jurisdiction
over a timely, written post-sentence motion for the duration of the disposition
period, that is to say for 120 days unless a 30-day extension is granted). We
must first cut the Gordian knot produced by the extended post-trial procedural
history in this case.
Defendant asks us to conclude that there was an administrative
breakdown caused by the trial court’s failure to appoint new counsel at the
time of sentencing due to his then counsel’s impending scheduled vacation
that resulted in the abandonment of his representation. Defendant’s Brief for
Appellant, 10-11. Due to that breakdown, he argues that his pro se post-
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sentence motion – which was filed within ten days of his sentencing hearing –
should have been considered by the trial court even though he still had counsel
of record. Id. at 11. He also asserts that the trial court’s subsequent
reinstatement of his post-sentence motion rights was properly entered out of
“necessity as it was the [t]rial [c]ourt that deprived him of meaningful review”
by not ensuring that he had the assistance of counsel during the initial ten-
day post-sentence motion period. Id. at 12. While staying silent as to the
propriety of his notices of appeal and the notices’ effect on the trial court’s
jurisdiction to eventually grant the post-sentence mistrial, he suggests that
this Court lacks jurisdiction for his appeals from the original judgment of
sentence. Id. at 12. The implication of his argument is that only the order
granting him a mistrial is properly before this Court.
The Commonwealth argues that the only appeal properly before this
Court is the appeal at 1537 MDA 2022 which was initiated by Defendant’s pro
se notice of appeal. Commonwealth’s Brief for Appellee, 13. It reasons that
the pro se post-sentence motion was a legal nullity because it was filed in
violation of our prohibition on hybrid representation but the same
considerations that should have blocked the filing of the post-sentence motion
did not prevent Defendant from filing his pro se notice of appeal. Id. at 12-
13. The Commonwealth also argues that Defendant’s counseled post-
sentence motion was a nullity because it was filed more than thirty days after
sentencing and the trial court did not have jurisdiction to permit him to file a
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nunc pro tunc post-sentence motion at that time. Id. at 14. As a result of
the improper grant of leave for the filing of a post-sentence motion nunc pro
tunc and the filing of the original pro se notice of appeal, the Commonwealth
asserts that the trial court was divested of jurisdiction at the time that it
granted a mistrial so the order granting that relief was a nullity. Id. It also
reasons that the appeal at 1057 MDA 2023, initiated by the counseled notice
of appeal, is improperly before this Court because it was filed after the appeal
resulting from Defendant’s pro se notice of appeal was already pending. Id.
at 14.
At the time Defendant filed his pro se post-sentence motion he still had
counsel of record. In this circumstance, the motion would normally be
considered a legal nullity due to our prohibition on hybrid representation. See
Commonwealth v. Ruiz, 131 A.3d 54, 56 n.4 (Pa. Super. 2007) (pro se post-
sentence motion, filed by represented defendant, was held to be legal nullity
with no legal effect), citing Commonwealth v. Ellis, 626 A.2d 1137, 1139
(Pa. 1993) (“there is no constitutional right to hybrid representation either at
trial or on appeal”). In Commonwealth v. Leatherby, 116 A.3d 73, 78-79
(Pa. Super. 2015), however, this Court held that where counsel has effectively
discontinued working on a defendant’s behalf, this Court will conclude that a
pro se filing does not offend consideration of hybrid representation. Id.
(holding that Leatherby’s pro se post-sentence motion, that was filed while he
had counsel, tolled his time to file an appeal where he was effectively
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abandoned by his counsel at the time that the motion was filed). Leatherby
is applicable in the instant case.
Here, the trial court proceeded with sentencing, knowing from a prior
motion for a continuance that Defendant’s counsel would be unavailable to
assist him during the time periods for filing a post-sentence motion or an
appeal, if a post-sentence motion was not filed. Application for Continuance,
6/6/22, § II. After the imposition of the sentence, the court was again
reminded about counsel’s upcoming unavailability due to a previously
scheduled vacation. N.T. 7/26/22, 20. The court took no action to ensure the
continuation of Defendant’s representation at that time in the absence of a
withdrawal request from counsel, but, after a withdrawal request was filed on
the next day, the court scheduled a hearing on it beyond the deadlines for
filing a post-sentence motion or an appeal. Order, 8/2/22, 1. The court’s
failure to take prompt action to ensure that Defendant was not effectively
abandoned by his counsel in these circumstances constituted a breakdown
that necessitated Defendant’s filing of his pro se post-sentence motion to
preserve at least some of his claims for an appeal. Where Defendant was
effectively unrepresented during the time at which he filed his post-sentence
motion, his pro se motion did not offend the considerations of hybrid
representation and thus was valid.
The existence of counsel of record also had no bearing on the validity of
Defendant’s pro se notice of appeal because “our courts are required to docket
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a pro se notice of appeal from a counseled defendant, as the acceptance of
this filing protects the defendant’s constitutional right to appeal.”
Commonwealth v. Bradley, --- A.3d ----, 2024 WL 4631683, *2 (Pa.
Super., filed Oct. 31, 2024), citing Commonwealth v. Williams, 151 A.3d
621, 624 (Pa. Super. 2016). In situations where defendants have filed notices
of appeal after the entry of their judgment of sentence, but prior to the trial
court’s disposition of their pending post-sentence motions, we have treated
the appeals resulting from the notices of appeal as premature. See
Commonwealth v. Cooper, 27 A.3d 994, 1007 (Pa. 2011);
Commonwealth v. Enix, 192 A.3d 78, 79 n.1 (Pa. Super. 2018). Here, the
appeal at 1537 MDA 2022 was later perfected upon the trial court’s
consideration and ruling on the pro se post-sentence motion. See Pa.R.A.P.
905(a)(5) (“A notice of appeal filed after the announcement of a determination
but before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.”); cf. Cooper, 27 A.3d at 1008 (holding that a
“snap” appeal filed by a pro se defendant, prior to his counsel’s filing of a post-
sentence motion, should have been treated as a premature appeal as if it had
been filed after the denial of the post-sentence motion in accordance with
Pa.R.A.P. 905(a)(5)).
Thus, the pro se post-sentence motion was valid under Leatherby and
the subsequent pro se appeal should have been treated as premature under
Cooper. We next turn to the timing and manner of the ruling on the post-
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sentence motion. Pursuant to Pa.R.Crim.P. 720(B)(3)(a), the trial court was
required to decide the post-sentence motion within 120 days, with that
deadline falling in this situation on December 1, 2022. Alternatively, pursuant
to Pa.Crim.P. 720(B)(3)(a), the court could have granted a 30-day extension
for deciding the post-sentence motion upon an extension request motion filed
by Defendant within the 120-day disposition period. A 30-day extension
would permit consideration of the post-sentence motion until January 2, 2023,
given that the 30-day extension would have elapsed on a weekend prior to a
legal holiday. Pa.R.Crim.P. 101(c) (incorporating by reference the rules of
construction in the Pennsylvania Rules of Judicial Administration including
Pa.R.J.A. 107(a)-(b), relating to computation of time for the rule of
construction relating to the exclusion of the first day and inclusion of the last
date of a time period and the omission of the last day of a time period which
falls on Saturday, Sunday, or a legal holiday).
The trial court issued no decision on the post-sentence motion and
defendant did not seek an extension of the ruling period as of December 1,
2022. Newly appointed counsel filed an amended post-sentence motion on
December 19, 2022, but that motion was untimely and filed beyond the 120-
day deadline for a ruling on the original pro se motion. See Pa.R.Crim.P.
720(B)(1)(b) (“The defendant may file a supplemental post-sentence motion
in the judge’s discretion as long as the decision on the supplemental motion
can be made in compliance with the time limits of paragraph (B)(3).”). The
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trial court had no power to sua sponte grant an extension of the time period
for consideration of the existing pro se post-sentence motion or this untimely
counseled motion. See Pa.R.Crim.P. 720 at Official Comment – Disposition
(“Only the defendant or counsel may request such an [Pa.R.Crim.P.
720(B)(3)(b)] extension. The judge may not, sua sponte, extend the time for
decision: a congested court calendar or other judicial delay does not constitute
‘good cause’ under this rule.”).
Based on this procedural history, the pro se post-sentence motion
should have been denied by operation of law on December 1, 2022, pursuant
to Pa.R.Crim.P. 720(B)(3)(b), and an order indicating as much should have
been issued by the clerk of courts on that date pursuant to Pa.R.Crim.P.
720(B)(3)(c). At the moment that the pro se post-sentence motion was
denied by operation of law, the premature appeal at 1537 MDA 2022 should
have been treated as filed on the same day pursuant to Pa.R.A.P. 905(a)(5).
All the subsequent actions of the trial court that related to the post-sentence
motion were taken in an absence of jurisdiction, contrary to Pa.R.A.P.
1701(a)’s mandate to “no longer proceed further in the matter.”
As a result of the divestment of the trial court’s jurisdiction due to the
perfection of the premature appeal, the trial court’s subsequent orders to
reinstate the post-sentence motion rights on February 14, 2023, and grant a
mistrial on July 5, 2023, must be considered legal nullities. See Bell, 839
A.2d at 358 (holding that the trial court’s order granting the appellant leave
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to appeal nunc pro tunc was legal nullity because it was entered “at a time
when the trial court did not have jurisdiction, i.e., the order was entered after
[the appellant] filed her first notice of appeal with this Court”). We must thus
vacate, at a minimum, the July 5, 2023 order granting relief on the post-
sentence motion. Accordingly, the only appeal that is properly before us is
the appeal at 1537 MDA 2022. Given this conclusion, we quash Defendant’s
duplicative appeal at 1750 MDA 2022, that was initiated by his counseled
notice of appeal. We also dismiss the appeal at 1057 MDA 2023 because the
July 5, 2023 order was void ab initio.
Turning to Defendant’s issues in the appeal at 1537 MDA 2022, we are
first presented with a challenge to our jurisdiction to review an appeal from
the order imposing the judgment of sentence. Defendant’s Brief for Appellant,
10-12. We have resolved this issue through the close analysis of all the filings
ands rulings in the lower court post-sentence. This is the only appeal properly
before us.
In his second issue, Defendant argues that his in-trial requests for a
mistrial should have been granted because the multiple references to him as
a convicted felon caused unfair prejudice. Defendant’s Brief for Appellant, 13-
17. He acknowledges that the trial court issued “at least two curative
instructions,” and notes that, while the instructions were “good intentioned,”
they “did no more than confirm [his] criminal past to the jury.” Id. at 13. He
argues that the references to his criminal past were “significantly prejudicial
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information that never should have been put before” the jury and the
“cumulative effect of all of the references” resulted in a trial that was
“[c]onstitutionally infirm.” Id. at 13-14.
In its brief, the Commonwealth addresses the first two trial references
to Defendant’s convicted felon status (Ms. Seidel’s quoting of her husband
telling Defendant, “You can’t even hold a seat, you’re a convicted felon,” and
Ms. Seidel’s mother’s quote of Defendant yelling, “He wants the felon. I will
give him the felon”) and argues that the testimony in those circumstances was
admissible. Commonwealth’s Brief for Appellee, 15-19. The Commonwealth
asserts that the references to Defendant’s convicted felon status were
admissible under the motive and res gestae exceptions to Pa.R.E. 404(b)(1)’s
bar on the admission of prior bad acts evidence. Commonwealth’s Brief for
Appellee, 17-18. It maintains that the trial court properly denied the mistrial
requests because, inter alia, the trial court instructed the jury to ignore the
references and “neither reference amounted to having the unavoidable impact
of denying [Defendant] a fair trial.” Id. at 18-19.
Upon considering challenges to the admissibility of evidence, we apply
an abuse of discretion standard. Commonwealth v. Gonzalez, 112 A.3d
1232, 1236 (Pa. Super. 2015). We also apply an abuse of discretion standard
to a trial court’s decision to deny a motion for a mistrial. Commonwealth v.
Wright, 961 A.2d 119, 142 (Pa. 2008). “An abuse of discretion may not be
found merely because an appellate court might have reached a different
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conclusion, but requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.”
Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa. 2007), citing Grady v.
Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003).
We note that “[a] mistrial is an extreme remedy only warranted when
the prejudice to the movant cannot be ameliorated to ensure a fair trial.”
Commonwealth v. Goods, 265 A.3d 662, 665 (Pa. Super. 2021), quoting
Commonwealth v. Risoldi, 238 A.3d 434, 458 (Pa. Super. 2020). “Our
courts have recognized that a trial court may grant a mistrial only ‘where the
incident upon which the motion is based is of such a nature that its
unavoidable effect is to deprive the defendant of a fair trial by preventing the
jury from weighing and rendering a true verdict.’” Commonwealth v.
Wilson, 273 A.3d 13, 20-21 (Pa. Super. 2022), quoting Wright, 961 A.2d
at 142.
“When dealing with a motion for mistrial due to a reference to past
criminal behavior, the nature of the reference and whether the remark was
intentionally elicited by the Commonwealth are considerations relevant to the
determination of whether a mistrial is required.” Commonwealth v.
Kerrigan, 920 A.2d 190, 199 (Pa. Super. 2007), quoting Commonwealth
v. Guilford, 861 A.2d 365, 370 (Pa. Super. 2004).
Generally, “[e]vidence of any other crime, wrong, or act is not
admissible to prove a person’s character in order to show that on a particular
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occasion the person acted in accordance with the character.” Pa.R.E.
404(b)(1). “Evidence of separate or unrelated ‘crimes, wrongs, or acts,’
however, has long been deemed inadmissible as character evidence against a
criminal defendant in this Commonwealth as a matter not of relevance, but of
policy, i.e., because of a fear that such evidence is so powerful that the jury
might misuse the evidence and convict based solely upon criminal propensity.”
Dillon, 925 A.2d at 137.
The initial threshold for the admissibility of evidence is relevance.
Commonwealth v. Green, 271 A.3d 393, 401 (Pa. Super. 2021). Pursuant
to Pa.R.E. 401, evidence is relevant if “(a) it has the tendency to make a fact
more or less probable than it would be without the evidence; and (b) the fact
is of consequence in determining the action.” Pa.R.E. 401. “Evidence is
relevant if it logically tends to establish a material fact in the case, tends to
make a fact at issue more or less probable or supports a reasonable inference
or presumption regarding a material fact.” Commonwealth v. Drumheller,
808 A.2d 893, 904 (Pa. 2002). “All relevant evidence is admissible, except as
otherwise provided in law. Evidence that is not relevant is not admissible.”
Pa.R.E. 402. “The court may exclude relevant evidence if its probative value
is outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Pa.R.E. 403.
Pennsylvania Rule of Evidence 404(b) provides as follows:
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(b) Crimes, Wrongs or Other Acts
(1) Prohibited Uses. Evidence of a crime, wrong or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.
Pa.R.E. 404(b)(1)-(2). The listed exceptions at Rule 404(b)(2) are not
exhaustive and the Courts of this Commonwealth have recognized a res gestae
exception to Rule 404(b) which allows the admission of other crimes evidence
when relevant to furnish the context or complete story of the events
surrounding a crime. Dillon, 925 A.2d at 137, citing Commonwealth v.
Williams, 896 A.2d 523, 539 (Pa. 2006), and Commonwealth v. Paddy,
800 A.2d 294, 307-08 (Pa. 2002). “[E]vidence of prior crimes is not
admissible for the sole purposes of demonstrating a criminal defendant’s
propensity to commit crimes.” Commonwealth v. Melendez-Rodriguez,
856 A.2d 1278, 1283 (Pa. Super. 2004) (en banc). Nevertheless, “[e]vidence
may be admissible in certain circumstances[,] where it is relevant for some
other legitimate purpose and not utilized solely to blacken the defendant’s
character.” Id. Specifically, other crimes evidence is admissible if offered for
a non-propensity purpose, such as proof of an actor’s knowledge, plan,
motive, identity, or absence of mistake or accident. Commonwealth v.
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Chmiel, 889 A.2d 501, 534 (Pa. 2005). When offered for a legitimate
purpose, evidence of prior crimes is admissible if its probative value outweighs
its potential for unfair prejudice. Commonwealth v. Hairston, 84 A.3d 657,
664-65 (Pa. 2014).
Unfair prejudice “means a tendency to suggest decision on an improper
basis or to divert the jury’s attention away from its duty of weighing the
evidence impartially.” Dillon, 925 A.2d at 141, citing Pa.R.E. 403, Comment.
Evidence will not be prohibited merely because it is harmful to the defendant. This Court has stated that it is not required to sanitize the trial to eliminate all unpleasant facts from the jury’s consideration where those facts are relevant to the issues at hand and form part of the history and natural development of the evidence and offenses for which the defendant is charged. Moreover, we have upheld the admission of other crimes evidence, when relevant, even where the details of the other crime were extremely grotesque or highly prejudicial.
Dillon, 925 A.2d at 141 (citations and quotation marks omitted).
Defendant asserts – without any reference to Rule 404(b) – that other
crimes evidence is generally inadmissible and refers to a case that preexisted
the adoption of Rule 404, Commonwealth v. Maute, 485 A.2d 1138 (Pa.
1984), in addition to a pre-May 1, 2019 unpublished memorandum of this
Court that may not be cited pursuant to Pa.R.A.P. 126(b)(1), to suggest that
reversible error occurred because there was more than “an isolated passing
reference to [his] prior criminal activity.” Defendant’s Brief for Appellant, 13-
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14. This limited discussion fails to properly review the admissibility of the
references to his prior convicted felon status under our controlling law.
With respect to the terroristic threats charge that Defendant was
convicted of, the material fact to be determined by the jury was whether
Defendant had in fact threatened to punch Mr. Seidel in the face. In the
context of the trial testimony, Ms. Seidel and Ms. Yerkes’s references to
Defendant being a “felon” were in reference to Mr. Seidel’s statement to
Defendant that immediately preceded the threat. The proper quoting of Mr.
Seidel was relevant to whether Defendant made the threat because the
reference was obviously insulting and explained why Defendant would lose
control in the situation and resort to threatening physical violence at the city
council meeting. Ms. Seidel’s mother’s quoting of Defendant yelling, “He
wants the felon. I will give him the felon,” was also relevant because it made
it more likely that Defendant made the initial threat to Mr. Seidel because
Defendant referenced his own status as a prior felon to continue to pose a
threat to Mr. Seidel.
Thus, in context, the references to Defendant’s prior criminal conduct
were admissible for the legitimate purposes of proving Defendant’s motive for
threatening Mr. Seidel and whether he in fact had threatened Mr. Seidel.8 In
____________________________________________
8 We note that, pursuant to Pa.R.E. 404(b)(3), “the prosecutor must provide
reasonable written notice in advance of trial so that the defendant has a fair opportunity to meet it, or during trial if the court excuses pretrial notice on (Footnote Continued Next Page)
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each instance, Defendant would have been entitled to a jury instruction that
the evidence was admissible only for a limited purpose. Commonwealth v.
Hutchinson, 811 A.2d 556, 561 (Pa. 2002). The trial court gave limiting
instructions each time that Defendant’s criminal felon status was referenced
at trial and the court made clear to the jury that the felon status was “not in
any way to be held against the defendant,” N.T. 5/17/22, 56-57, that it “was
to play no role in [the jury’s] consideration of this matter,” id. at 108, and
that the issue of whether Defendant was a felon was “not to be raised” at trial,
id. at 218. While there were legitimate but limited grounds for the jury’s
consideration of the felon status references, the instructions granted were
actually beneficial to Defendant in that they essentially asked the jury to give
no consideration to the references which could have been accepted as proof
of motive and otherwise for res gestae purposes.
As the references were relevant and admissible with the inclusion of
limiting instructions, the only remaining question for us is whether the
references caused unfair prejudice to Defendant. Here, while the jury was
generally made aware that Defendant was a “felon,” it was never given any
information concerning the nature of any prior convictions that Defendant had
____________________________________________
good cause shown, of the specific nature, permitted use, and reasoning for the use of any [other crimes, wrongs, or acts] evidence the prosecutor intends to introduce at trial.” No written notice of that nature appears to have been provided to the defense by the Commonwealth in this case, however, Appellant presents no claim in this appeal concerning noncompliance with Rule 404(b)(3).
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or any criminal acts that he formerly committed. Our Supreme Court has
previously held that where an appellant’s “specific [past] crime” was “never
mentioned,” any prejudice suffered by passing reference to his criminal
activity was “slight.” Commonwealth v. Ragan, 645 A.2d 811, 820 (Pa.
1994). Because the nature of Defendant’s conviction was not provided to the
jury and the court repeatedly instructed the jury to ignore the references in
their deliberations, any “slight” harm that may have been caused was cured.9
See Commonwealth v. Tedford, 960 A.2d 1, 37 (Pa. 2008) (recognizing
that when evidence of a defendant’s other crimes is admitted for a relevant
purpose under Rule 404(b), the defendant is entitled upon request to a limited
instruction, which the law presumes the jury will follow); Commonwealth v.
Boczkowski, 846 A.2d 75, 89 (Pa. 2004) (limiting instructions weighed in
favor of upholding decision to admit evidence of other criminal activity). On
that basis, we cannot conclude that unfair prejudice occurred at trial.
Moreover, we note the record does not support the notion that the
remarks were intentionally elicited by the Commonwealth. When Ms. Seidel ____________________________________________
9 We note that the central issue at trial was whether Defendant had engaged
in threatening behavior. A reference to a prior conviction for a violent crime would have obviously caused more prejudice than a general reference to Defendant being a “felon.” Additionally, Mr. Seidel’s comment which included the reference to Defendant being a felon only alluded to the fact that Defendant’s status as a felon made him ineligible for election to the Shamokin city council. N.T. 5/17/22, 53. As a crime eliminating a person from public office eligibility could include any number of crimes which have no relation to violent acts or threatening conduct, the vague reference to Defendant’s prior criminal record did not suggest that Defendant had a propensity to threaten others.
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referenced the status, the Commonwealth was asking her about what
Defendant had been saying to her husband rather than asking about her
husband’s statement to Defendant. N.T. 5/17/22, 53. Ms. Seidel’s mother’s
quote of Defendant referring to himself as a felon was offered in response to
the prosecution’s general question about what defendant was “doing” and
“how [he] was behaving” after he was outside the city council meeting. Id.
at 106. Ms. Yerkes testified that she heard Mr. Seidel call Defendant a felon
in response to a question asking her whether she heard what Defendant had
said to the Seidels. Id. at 216. In each of the relevant sections of testimony,
the prosecutor’s questions sought only to elicit testimony about the
threatening statements made by Defendant. It was the witnesses’ answers
beyond the scope of the questions that referred to Defendant’s prior felon
status. This reinforces our conclusion that a grant of a mistrial would have
been an extreme remedy in these circumstances.
While we are aware that the trial court agreed to relief on Defendant’s
claim subsequent to the divestment of its jurisdiction, we note that the court’s
opinion offers – like Defendant’s Brief for Appellant – scant review concerning
the admissibility of the references at issue and relies in part only on our
decision in Maute that predates the adoption of Rule 404. Properly reviewing
the record, we do not agree that Defendant met his burden of proving that
the trial court abused its discretion by not granting a mistrial based on the
three references to his status as a felon. The evidence was relevant and
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admissible for limited purposes. The admission of the evidence was
accompanied by instructions to the jury that – instead of referencing the
proper limited uses of evidence – told the jury to plainly ignore the references
altogether in their deliberations. Lastly, the vague references to Defendant
as a “felon” were not unduly prejudicial where no context for Defendant’s prior
criminal record were provided to the jury, the jury is presumed to follow the
trial court’s instructions to not include consideration of the references in their
deliberations, and the prosecution did not intentionally elicit the testimony.
Accordingly, we find that a mistrial was not warranted in this case.
Judgment of sentence affirmed. July 5, 2023 order granting a mistrial
vacated. Appeal at 1750 MDA 2022 quashed as duplicative. Appeal at 1057
MDA 2023 quashed as moot.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 12/23/2024
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