Com. v. Parham, S. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
SHAHID PARHAM,
Appellant No. 761 EDA 2016
Appeal from the Judgment of Sentence June 18, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0015369-2013
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 13, 2018
Appellant, Shahid Parham, appeals from the June 18, 2015 judgment of
sentence entered following his non-jury conviction of robbery, burglary,
conspiracy, and various weapons offenses.1 The trial court acquitted Appellant
of aggravated assault.2 Because the appeal is untimely, we quash.
We briefly note that the charges arose out of the September 10, 2013
armed robbery of the victim, Dwayne Davis. (See Trial Court Opinion,
10/05/16, at 3-5). During a struggle over Appellant’s gun, the victim gained
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* Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S.A. §§ 3701(a)(1)(ii), 3502(a)(1), 903, 6106(a)(1), 6105(a)(1),
and 6110.1(a), respectively.
2 18 Pa.C.S.A. § 2702(a).
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control of the weapon and fired at both Appellant and his co-conspirator and
cousin, Muhammad Munson, killing Munson and wounding Appellant. (See
id.).
A non-jury trial took place on April 9, 2015. At the close of trial, a
dispute arose over whether Appellant’s actions fit the legal definition of
burglary, because, believing that Appellant was there to purchase a watch
from him, the victim admitted Appellant into his home. (See N.T. Trial,
4/09/15, at 179-81). After hearing argument on the issue, the trial court
stated:
. . . I’m finding [Appellant] not guilty of aggravated assault.
I find him guilty of the other charges. With regard to
burglary, it’s up to the two of you to see what the case law says.
I’ll reconsider the burglary charge in an oral or written,
whatever you want, post-trial motion. . . .
(Id. at 183) (emphases added). When asked about a period for filing a motion
or submitting case law on the burglary issue, the court stated that the parties
could file papers before sentencing. (See id. at 183-84). Neither party filed
any written motions prior to sentencing.
Sentencing took place on June 18, 2015. At sentencing, the
Commonwealth submitted case law in support of its position that Appellant’s
action fit the definition of burglary. (See N.T. Sentencing, 6/18/15, at 8-9).
However, Appellant’s counsel disputed that the trial court had found Appellant
guilty of burglary and sought a continuance of sentencing in order to obtain
the notes of testimony. (See id. at 4-17). The trial court denied the request
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for a continuance and, after acknowledging receipt of the pre-sentence
investigation report and hearing witness testimony, proceeded to sentence
Appellant to an aggregate term of incarceration of not less than thirty-two nor
more than sixty-four years. (See id. at 14, 22, 91-92).
On June 23, 2015, Appellant filed a timely post-sentence motion for
reconsideration of sentence, raising, in part, his claim that the trial court never
convicted him of burglary. (See Motion for Reconsideration of Sentence,
6/23/15, at unnumbered page 1). On October 22, 2015, the trial court,
following a hearing, denied the motion. On November 10, 2015, Appellant
filed a motion for extraordinary relief, seeking reconsideration of the October
22, 2015 order. (See Motion for Extraordinary Relief, 11/10/15, at 2). The
trial court took no action on this motion.
On March 4, 2016, Appellant filed a notice of appeal. On July 5, 2016,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). On July 25, 2016, Appellant
filed a timely Rule 1925(b) statement. See id. On October 5, 2016, the trial
court issued an opinion. See Pa.R.A.P. 1925(a).
On March 21, 2016, this Court issued a rule to show cause as to why we
should not dismiss the appeal as untimely filed. Appellant filed a response on
March 30, 2016.
On appeal, Appellant raises the following questions for our review:
1) [Did] the [trial] court commit[] error when it originally withheld
judgment on the charge of burglary only to later state at the
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sentencing hearing that it had found the Appellant guilty of that
charge[?]
2) [Did] the [trial] court commit[] error at sentencing when it did
not permit counsel to obtain the notes of testimony from the
bench trial which would have shown that the court had not
made a final determination of guilt on the charge of burglary
but rather had permitted counsel to research the issue and
present argument on a later date[?]
3) [Was] the sentence received by the Appellant . . . so extreme
as to be an abuse of discretion and warrants a re-sentencing
hearing[?]
(Appellant’s Brief, at 7) (unnecessary capitalization omitted).
The Commonwealth argues that we should quash this appeal as
untimely filed. (See Commonwealth’s Brief, at 6, 8-10). We agree.
It is settled law that a notice of appeal must be filed within thirty days
after the entry of the order from which the appeal is taken. See Pa.R.A.P.
903(a). A party must file the notice of appeal with the clerk of the trial court;
“[u]pon receipt of the notice of appeal the clerk shall immediately stamp it
with the date of receipt, and that date shall constitute the date when the
appeal was taken, which date shall be shown on the docket.” Pa.R.A.P.
905(a)(3). We strictly construe time limitations for taking appeals and cannot
extend them as a matter of grace. See Commonwealth v. Valentine, 928
A.2d 346, 349 (Pa. Super. 2007). This Court can raise the matter sua sponte,
as the issue is one of jurisdiction to entertain the appeal. See id. We have
no jurisdiction to entertain an untimely appeal. See Commonwealth v.
Patterson, 940 A.2d 493, 497-98 (Pa. Super. 2007), appeal denied, 960 A.2d
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838 (Pa. 2008). Generally, an appellate court may not enlarge the time for
filing a notice of appeal. See Pa.R.A.P. 105(b). We permit extension of the
appeal-filing period only in extraordinary circumstances, such as fraud or
some breakdown in the court’s operation. See Commonwealth v.
Braykovich, 664 A.2d 133, 136 (Pa. Super. 1995), appeal denied, 675 A.2d
1242 (Pa. 1996).
Where a defendant files a timely post-sentence motion, he must file his
notice of appeal within thirty days of the date that the court denies the motion.
See Pa.R.Crim.P. 720(A)(2)(a); see also Pa.R.A.P. 903(a).
However, when an appellant files a motion for reconsideration of a final
order, he must file a protective notice of appeal to ensure preservation of his
appellate rights, in the event the court does not expressly grant
reconsideration within the thirty-day appeal period. See Commonwealth
v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000). In other words, the mere
filing of a motion for reconsideration does not toll the thirty-day appeal period:
It is well-settled that, upon the filing of a motion for
reconsideration, a trial court’s action in granting a rule to show
cause and setting a hearing date is insufficient to toll the appeal
period. Rather, the trial court must expressly grant
reconsideration within thirty days of entry of its order.
Id. (citations omitted).
Moreover, “we have consistently held that an appeal from an order
denying reconsideration is improper and untimely.” Id. (citation omitted). In
this context, the appeal does not lie from the order denying reconsideration;
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filing an appeal from that order is insufficient to preserve appellate rights, as
“[w]e will not permit appellant to do indirectly that which he cannot do
directly.” Provident Nat. Bank v. Rooklin, 378 A.2d 893, 897 (Pa. Super.
1977) (citations omitted).3
Here, the trial court sentenced Appellant on June 18, 2015. Appellant
filed a timely post-sentence motion on June 23, 2015. The trial court denied
the motion on October 22, 2015. Thus, Appellant had until November 23,
2015, to file a timely notice of appeal. 4 Instead, on November 10, 2015,
Appellant filed a motion seeking reconsideration of the October 22, 2015
order; he did not file a protective notice of appeal. The trial court did not
expressly grant reconsideration within thirty days and Appellant did not file a
notice of appeal until March 4, 2016, which is patently untimely. See Moir,
supra at 1254.
Moreover, the record contains no evidence of extraordinary
circumstances such as a court holiday or closing, or a breakdown in the
operations of the court, to excuse Appellant’s untimely filing. See
Braykovich, supra at 136 (stating extension of appeal filing period is
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3 Generally, the Rules of Appellate Procedure apply to criminal and civil cases
alike; the principles enunciated in civil cases construing those rules are equally
applicable in criminal cases. See Commonwealth v. Levanduski, 907 A.2d
3, 29 n.8 (Pa. Super. 2006) (en banc), appeal denied, 919 A.2d 955 (Pa.
2007), cert. denied, 552 U.S. 823 (2007) (stating rules of appellate procedure
apply to criminal and civil cases alike).
4 The thirtieth day, November 21, 2015, was a Saturday.
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permitted only in extraordinary circumstances, such as fraud or some
breakdown in court’s operation). Therefore, Appellant’s failure to file the
notice of appeal within thirty days of the October 22, 2015 order denying his
post-sentence motion divested this Court of appellate jurisdiction. See
Pa.R.A.P. 903; Patterson, supra at 497-98. Accordingly, we quash this
appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/18
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