Com. v. Lowman, M. ( 2017 )

J-A05009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL LOWMAN :
:
Appellant : No. 135 WDA 2016
Appeal from the Judgment of Sentence December 22, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001423-2015
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED MARCH 06, 2017
Appellant, Michael Lowman, appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas, following his bench
trial convictions for simple assault, recklessly endangering another person,
official oppression, and conspiracy.1 For the following reasons, we dismiss
the above-captioned appeal as duplicative.
As a general rule, this Court has jurisdiction over final orders.
Commonwealth v. Rojas, 874 A.2d 638 (Pa.Super. 2005). “A direct
appeal in a criminal proceeding lies from the judgment of sentence.”
Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa.Super. 2007),
appeal denied, 599 Pa. 691, 960 A.2d 838 (2008). If a defendant in a
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1
18 Pa.C.S.A. §§ 2701(a)(1), 2705, 5301(1), and 903, respectively.
J-A05009-17
criminal case files a timely post-sentence motion, the judgment of sentence
does not become final for the purposes of an appeal until the trial court
disposes of the motions or the motions are denied by operation of law.
Commonwealth v. Borrero, 692 A.2d 158, 160 (Pa.Super. 1997). The
denial of a timely post-sentence motion is the triggering event for filing a
notice of appeal. Pa.R.Crim.P. 720(A)(2). When an appellant files a notice
of appeal before the trial court has ruled on the post-sentence motions, the
judgment of sentence has not yet become “final,” and any purported appeal
is interlocutory and unreviewable. Borrero, supra. The proper remedy
would then be to quash the appeal, relinquish jurisdiction, and remand for
the trial court to consider the post-sentence motions nunc pro tunc. Id. at
161. On the other hand, if the trial court denies an appellant’s post-
sentence motions while his appeal is pending, we will treat the premature
notice of appeal “as having been filed after entry of [an] order denying post-
sentence motions.” See Commonwealth v. Ratushny, 17 A.3d 1269,
1271 n. 4 (Pa.Super. 2011).
Instantly, the court sentenced Appellant on December 22, 2015, to an
aggregate term of four years’ probation. Appellant timely filed post-
sentence motions on December 30, 2015. On January 21, 2016, Appellant
filed a premature notice of appeal, before the court ruled on his post-
sentence motions. The premature appeal was docketed at No. 135 WDA
2016. The court ordered Appellant on January 29, 2016, to file a concise
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J-A05009-17
statement of errors complained of on appeal per Pa.R.A.P. 1925(b);
Appellant filed it on February 18, 2016. While the appeal at No. 135 WDA
2016 was pending, Appellant’s post-sentence motions were deemed denied
by operation of law on April 29, 2016. Inexplicably, Appellant filed another
notice of appeal which was docketed at No. 791 WDA 2016. The trial court
again ordered and Appellant filed another Rule 1925(b) statement. Absent
the second appeal, we could have related Appellant’s premature notice of
appeal at No. 135 WDA 2016 forward to April 29, 2016, the date his post-
sentence motions were deemed denied by operation of law, in order to
resolve any jurisdictional impediments. See id. As it stands, however,
Appellant now has two appeals before this Court, one of which is duplicative.
Appellant has briefed both appeals in an identical manner. Each appeal has
a separate docket number and journal number. Accordingly, we will proceed
with the appeal docketed at No. 791 WDA 2016 (J-A05011-17) and dismiss
the above-captioned appeal docketed at No. 135 WDA 2016 (J-A05009-17)
as duplicative.
Appeal dismissed as duplicative.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2017
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