Com. v. Possinger, N.

Superior Court of Pennsylvania·Decided November 5, 2020·No. 1632 EDA 2019·Unpublished

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

NICHOLAS POSSINGER :

Appellant : No. 1632 EDA 2019

Appeal from the Order Entered May 13, 2019, in the Court of Common Pleas of Monroe County, Criminal Division at No(s): CP-45-CR-0000631-2012, CP-45-CR-0001741-2013.

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

NICHOLAS POSSINGER :

Appellant : No. 1749 EDA 2019

Appeal from the Order Entered May 13, 2019, in the Court of Common Pleas of Monroe County, Criminal Division at No(s): CP-45-CR-0000631-2012, CP-45-CR-0001741-2013.

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

NICHOLAS POSSINGER :

Appellant : No. 2493 EDA 2019

Appeal from the Order Entered May 13, 2019, in the Court of Common Pleas of Monroe County, Criminal Division at No(s): CP-45-CR-001741-2013.

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

NICHOLAS POSSINGER :

Appellant : No. 2494 EDA 2019

Appeal from the Order Entered May 13, 2019, in the Court of Common Pleas of Monroe County, Criminal Division at No(s): CP-45-CR-0000631-2012.

BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.

JUDGMENT ORDER BY KUNSELMAN, J.: Filed: November 5, 2020

Nicholas Possinger filed four appeals from the same order holding him

in contempt for willfully failing to pay costs and fines. That order arose from

two, unrelated, criminal cases. We vacate the order of contempt.

On May 13, 2019, the court of common pleas held Possinger in contempt

for nonpayment of costs and fines, which a trial court and a magisterial-district

court imposed after he pleaded guilty in two separate, criminal matters.1

1 Possinger pleaded guilty to theft by unlawful taking (18 Pa.C.S.A § 3921(a)) and possession with intent to deliver (35 Pa.C.S.A. §780-113(a)(30)). In the first case, 631 CR 2012, Possinger was sentenced to pay fines and costs in the amount of $390.50. He was immediately placed on a payment plan of $50 a month. He failed to pay the costs and the matter was sent to the Monroe County Probation Office for collection. In the second case, 1741 CR 2013, Possinger was sentenced to one year of probation, a fine of $2,500 plus costs, and 50 hours of community service. In August 2016, he entered into a

Three weeks later, Possinger timely filed two notices of appeal, in accordance

with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (holding that,

after June 1, 2018, separate notices of appeal must be filed for each lower-

court docket number). However, Possinger included both docket numbers on

both of his notices of appeal. Concerned that his appeals may be quashed

for this technicality, Possinger moved the trial court to reinstate his appellate

rights, nunc pro tunc, so he could file new notices of appeal with only one

number on each. The trial court granted his request, and Possinger filed two

additional notices of appeal.

Based on our recent decisions in Commonwealth v. Johnson, ___

A.3d ___, ___, (Pa. Super. 2020) (en banc) (filed July 9, 2020), Slip Opinion

at 12 and Commonwealth v. Larkin, ___ A.3d ___, ___, (Pa. Super. 2020)

(en banc) (filed July 9, 2020), Slip Opinion at 3 (accord), we conclude that

Possinger’s first two appeals (1632 and 1749 EDA 2019) may proceed,

notwithstanding his inclusion of both trial-court docket numbers on his

separate notices of appeal.

However, his subsequent, now-redundant appeals (2493 and 2494 EDA

2019) must be quashed, because the trial court lacked jurisdiction to grant

payment plan with the Monroe County Probation Office to pay a minimum of $100 per month. On April 17, 2019, after Possinger failed to make any payments for over a year, a Petition for Rule to Show Cause was issued in both of these matters. It was the first Petition for Contempt filed in these cases. At the time of filing, Possinger still owed $295.50 in the first case and $1,855.00 in the second case. Before the hearing on May 13, 2019, Possinger’s mother made a $150.00 payment on his behalf.

nunc pro tunc relief on August 26, 2019. Under Rule of Appellate Procedure

1701(a), “after an appeal is taken . . . the trial court . . . may no longer

proceed in the matter.” When a party appeals (if that appeal is from an

appealable order or a final judgment), that appeal divests the trial court of its

original jurisdiction. See, e.g., Commonwealth v. Bishop, 829 A.2d 1170

(Pa. Super. 2003).

In his two valid appeals (i.e., 1632 and 1749 EDA 2019), Possinger

raised three issues all challenging the contempt findings of the trial court. In

response, the Commonwealth filed a letter with this Court indicating that the

District Attorney of Monroe County agreed that Possinger is entitled to

appellate relief. Commonwealth’s 12/11/19 Letter to Superior Court. Because

the Commonwealth concedes that under the facts of this case the finding of

contempt should be vacated, we shall do so.2 See, e.g., Commonwealth v.

McNeal, 120 A.3d 313, 328-329 (vacating judgments of sentence when

Commonwealth concedes the appellant is entitled to relief).

Order of contempt vacated. Order reinstating appellate rights nunc pro

tunc vacated. Appeals 2493 EDA 2019 and 2494 EDA 2019 quashed.

Jurisdiction relinquished.

2 In his brief, Possinger requested that we publish our decision in this matter “because of the substantial, public importance of the issues raised in this appeal.” Possinger’s Brief at 34. Given that our grant of relief rests solely upon the agreement of the parties, the request for publication is DENIED. Similarly, Possinger’s request for oral argument is DENIED as moot.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/5/20

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