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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH PETER GUARRASI,
Appellant No. 2728 EDA 2016
Appeal from the Order August 30, 2016
in the Court of Common Pleas of Bucks County
Criminal Division at No.: CP-09-CR-0005423-2004
BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*
JUDGMENT ORDER BY PLATT, J.: FILED APRIL 04, 2017
Appellant, Joseph Peter Guarrasi, appeals pro se from the trial court's
August 30, 20161 order denying, without prejudice, his motion for return of
property. Specifically he argues that, although his appeal is pending, the
trial court had jurisdiction to act on his motion. We affirm.
* Retired Senior Judge assigned to the Superior Court.
1 Although the court's order was dated June 24, 2016, the docket entries
reflect that the order was filed on August 30, 2016. We have amended the
caption accordingly. Furthermore, although Appellant filed his notice of
appeal on July 13, 2016, before the order was entered, we will consider the
notice of appeal filed after the order was entered and on the day thereof.
See Pa.R.A.P. 905(a)(5).
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On March 17, 2016, Appellant filed a motion for return of property.2
Following a June 3, 2016 hearing on Appellant's motion, the trial court took
Appellant's motion under advisement. On August 30, 2016, the court
entered an opinion and order denying the motion for return of property,
without prejudice, after concluding that it lacked jurisdiction in this matter
because Appellant's case was currently on appeal before this Court. (See
Order, 8/30/16, at unnumbered pages 1-2). This timely appeal followed.3
Preliminarily, we must consider the propriety of this appeal. The trial
court determined that it lacked jurisdiction to act because Appellant's case
continues to be active on appeal. (See Trial Court Opinion, 8/25/16, at 2).
Upon review, we agree.
2 "On March 28, 2005, Appellant entered a plea of nob contendere to
criminal attempt to commit homicide and pled guilty but mentally ill to
charges of criminal intent to commit aggravated assault, attempt to commit
kidnapping, attempt to commit unlawful restraint, attempt to commit false
imprisonment, attempted burglary and criminal solicitation to promote or
facilitate insurance fraud. On June 8, 2005, Appellant was sentenced to six
and one-half to fifteen years' imprisonment. On July 6, 2006, we affirmed
Appellant's judgment of sentence." (Commonwealth v. Guarrasi, 2016
WL 6778181, at *1 unpublished memorandum (Pa. Super. filed Nov. 15,
2016)). Appellant filed a timely petition pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, on June 29, 2007, which the
PCRA court denied on October 20, 2015. On November 15, 2016, this Court
affirmed the PCRA court's denial. (See id.). On December 13, 2016,
Appellant filed a petition for allowance of appeal with our Supreme Court
that remains pending.
3 Pursuant to the court's order, Appellant filed his concise statement of
errors complained of on appeal on July 28, 2016. The court entered its
opinion on August 25, 2016. See Pa.R.A.P. 1925.
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Pennsylvania Rule of Appellate Procedure 1701(a) provides: "[A]fter
an appeal is taken . . . the trial court . . . may no longer proceed further in
the matter." Pa.R.A.P. 1701(a). "Where only a particular item, claim or
assessment adjudged in the matter is involved in an appeal . . . the appeal .
. . shall operate to prevent the trial court . . . from proceeding further with
only such item, claim or assessment . . . ." Pa.R.A.P. 1701(c).
Here, Appellant is currently seeking an allowance of appeal from our
Supreme Court concerning this Court's affirmance of the PCRA court's denial
of his petition. Until that Court decides Appellant's petition for allowance of
appeal, and remands the record, the trial court lacks jurisdiction to consider
the merits of Appellant's petition. See Pa.R.A.P. 1701(a); see generally,
Commonwealth v. Bishop, 829 A.2d 1170, 1172 (Pa. Super. 2003).
Furthermore, because Appellant's PCRA petition concerns the validity of his
entire conviction, we conclude that this is not a case where only a particular
item, claim, or assessment is involved in an appeal. See Pa.R.A.P. 1701(c);
(see also Commonwealth v. Guarrasi, 3514 EDA 2015 (Pa. Super. filed
Nov. 15, 2016)). Thus, we agree with the trial court that it did not have
jurisdiction to act in this matter.
Order affirmed.
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Judgment Entered.
J seph D. Seletyn, Es .
Prothonotary
Date: 4/4/2017
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