Com. v. Nadolny, T.

Superior Court of Pennsylvania

Com. v. Nadolny, T.

DecidedOctober 26, 2015

Docket1588 WDA 2014

StatusUnpublished

This text of Com. v. Nadolny, T. (Com. v. Nadolny, T.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Nadolny, T., (Pa. Ct. App. 2015).

Pincite

Opinion

J-S48014-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TIMOTHY NADOLNY

Appellant No. 1588 WDA 2014

Appeal from the Judgment of Sentence September 17, 2014 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000563-2014

BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY PANELLA, J. FILED OCTOBER 26, 2015

Appellant, Timothy Nadolny, appeals1 from the judgment of sentence

entered on September 17, 2014, in the Court of Common Pleas of Erie

County. We affirm.

Nadolny lived with the victim in this case for two months, until the

victim asked him to move out. The victim has cancer and is confined to a

wheelchair. After Nadolny moved out, he eventually returned—by invading

____________________________________________

1 Nadolny purports to appeal from the sentencing order entered in this case. See Notice of Appeal, filed 9/26/14. “A direct appeal in a criminal proceeding lies from the judgment of sentence.” Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007) (citation omitted). For appeal purposes, see Pa.R.Crim.P. 720(A)(3), the imposition of sentence is “the date that the trial court pronounced the sentence in open court, not the date that the order imposing the judgment of sentence was docketed….” Patterson, 940 A.2d at 498 (citation omitted). J-S48014-15

the residence, wearing a white sheet over his face, and carrying a handgun.

Upon his arrival, and despite the sheet, the victim immediately realized it

was Nadolny. While holding the handgun to the base of the victim’s neck,

Nadolny demanded the key to the victim’s gunroom. Nadolny never got the

key, but he took other items.

Although the victim testified at the preliminary hearing, he was unable

to speak by the time of the trial as his larynx (colloquially known as the

voice box) had been surgically removed. The Commonwealth moved to have

his preliminary hearing testimony read into evidence at trial as his inability

to speak rendered the victim unavailable to testify. The trial court agreed. A

jury convicted Nadolny of several offenses, including aggravated assault, 18

Pa.C.S.A. § 2702(a)(1). The trial court sentenced Nadolny to 16 to 32 years’

imprisonment. This timely appeal followed.

Nadolny first argues that the trial court violated his Sixth Amendment

right to confront his accuser when it allowed the Commonwealth to read into

evidence at trial the victim’s testimony from the preliminary hearing.

Nadolny, however, fails to indicate in his brief where he preserved this issue.

Our Rules of Appellate Procedure mandate that the appellant note in

his brief the place in the record where he raised or preserved the issue

presented on appeal. See Pa.R.A.P. 2117(c)(1-4); 2119(e). Here, the brief

merely states that Nadolny objected to the victim’s presence in the

courtroom while someone read his preliminary hearing testimony to the jury.

-2- J-S48014-15

See Appellant’s Brief, at 7. That is a far different claim than that raised on

appeal.

We have reviewed the certified record and are unable to find any

objection lodged by Nadolny to the reading of the victim’s prior testimony.

Nadolny objected to certain content in the statement, see N.T., Trial,

7/16/14, at 25-26, and he objected, as mentioned, that the victim “not be in

the courtroom” for the reading of the statement, id., at 28. Lastly, when

asked if he had any other objections, he requested that the reader of the

testimony use “no inflection” in her voice. Id., at 30. Nadolny also

referenced a motion in limine that the trial court ruled on and he “renew[ed]

the prior objections we have to references to the victim’s infirm state or the

actions of his dog on that evening.” Id., at 28. The motion in limine is not in

the certified record nor do the criminal docket sheets reflect the filing of any

such motion. If the motion was made orally, the argument was apparently

not transcribed as it does not appear anywhere in the certified record.

Accordingly, Nadolny raises this issue for the first time on appeal. That

is impermissible. We find the issue waived. See Pa.R.A.P. 302(a).

Even if we had not found the issue waived it would not have afforded

Nadolny relief. “The Confrontation Clause … prohibits out-of-court

testimonial statements by a witness unless the witness is unavailable and

the defendant had a prior opportunity for cross-examination.”

Commonwealth v. Yohe, 79 A.3d 520, 544 (Pa. 2013) (citation and

-3- J-S48014-15

footnote omitted). Here, the victim cannot speak as his larynx was surgically

removed.2 This rendered him unavailable. But he testified at the preliminary

hearing. And Nadolny’s counsel had a full opportunity to cross-examine the

victim. See N.T., Trial, 7/16/14, at 51-58 (trial counsel noting that at

preliminary hearing a different attorney conducted the cross-examination of

the victim and then read that attorney’s cross-examination to the jury).

Therefore, we would have found that the trial court committed no error in

permitting the admission of the prior testimony at trial. See

Commonwealth v. Rodgers, 372 A.2d 771, 779 (Pa. 1977) (“It is well

established that the prior testimony from a preliminary hearing of an

unavailable witness is admissible at trial, provided that the defendant had

counsel and a full opportunity to cross-examine the witness during the

earlier proceeding.”).

Nadolny next contends that the Commonwealth presented insufficient

evidence to sustain the conviction for aggravated assault. Appellate review

of a challenge to the sufficiency of the evidence is well-settled.

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, ____________________________________________

2 Nadolny argues that “it is reasonable to believe that the court could have explored an alternate way to allow [the victim] to testify.” Appellant’s Brief, at 7 (emphasis in original). Nadolny fails, however, to offer even one such reasonable suggestion.

-4- J-S48014-15

we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [finder] of fact, while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v.

Free access — add to your briefcase to read the full text and ask questions with AI