Com. v. Kelly, K. ( 2017 )

J-S27037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KATRINA S. KELLY,
Appellant No. 2102 EDA 2016
Appeal from the Judgment of Sentence May 23, 2016
in the Court of Common Pleas of Lehigh County
Criminal Division at No.: CP-39-SA-0000035-2016
BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*
JUDGMENT ORDER BY PLATT, J.: FILED APRIL 24, 2017
Appellant, Katrina S. Kelly, appeals from the judgment of sentence
entered following her conviction at a trial de novo for the summary offense
of harassment.1 We dismiss.
The relevant facts and procedural history of this case are as follows.
On January 19, 2016, a magisterial district judge convicted Appellant of
harassment following a summary trial. The judge sentenced her to a term of
ninety days’ probation, and ordered her to have no contact with the victim, a
neighbor. On January 26, 2016, Appellant filed a notice of appeal in the
Lehigh County Court of Common Peas.
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 2709(a)(3).
J-S27037-17
On May 23, 2016, the trial court held a summary appeal hearing. At
the conclusion of the hearing, the court found Appellant guilty of harassment
and re-imposed the original sentence of ninety days’ probation, and no
contact with the victim. On June 2, 2016, Appellant filed a post-sentence
motion, which the trial court denied on June 15, 2016. Appellant filed a
notice of appeal on June 30, 2016.2
On appeal, Appellant challenges the weight and sufficiency of the
evidence supporting her conviction. (See Appellant’s Brief, at 16-30).
However, as a preliminary matter, we must consider the propriety of this
appeal. The trial court and the Commonwealth maintain that this appeal
should be dismissed as untimely. (See Trial Court Opinion, 10/24/16, at 5-
8; Commonwealth’s Brief, at 7-8). Upon review, we agree.
The timeliness of an appeal implicates our jurisdiction, which “is vested
in [this] Court upon the filing of a timely notice of appeal.”
Commonwealth v. Nahavandian, 954 A.2d 625, 629 (Pa. Super. 2008)
(citation omitted). “[P]ursuant to Pa.R.Crim.P. 720(D), a defendant in a
summary appeal case is not permitted to file post-sentence motions.”
Commonwealth v. Dixon, 66 A.3d 794, 797 (Pa. Super. 2013). Rule 720
provides, in pertinent part:
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2
Appellant filed a timely court-ordered concise statement of errors
complained of on appeal on August 3, 2016. See Pa.R.A.P. 1925(b). The
trial court entered a Rule 1925(a) statement on October 24, 2016. See
Pa.R.A.P. 1925(a).
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J-S27037-17
(D) Summary Case Appeals. There shall be no post-sentence
motion in summary case appeals following a trial de novo in the
court of common pleas. The imposition of sentence
immediately following a determination of guilt at the
conclusion of the trial de novo shall constitute a final
order for purposes of appeal.
Pa.R.Crim.P. 720(D) (emphasis added). Thus, under the plain language of
the rule, “[t]he time for appeal in summary cases following a trial de novo
runs from the imposition of sentence.” Id., comment (emphasis
added).
Here, because Appellant was not permitted to file a post-sentence
motion in this summary case appeal, the appeal period began to run from
the date her sentence was imposed, May 23, 2016. The filing of a motion
for reconsideration of sentence in this context will not toll the thirty-day
appeal period. Therefore, her notice of appeal, filed more than thirty days
later, was untimely. See Pa.R.A.P. 903(a). Accordingly, we dismiss this
appeal.3
Appeal dismissed.
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3
We note that Appellant’s reliance on Commonwealth v. Dougherty, 679
A.2d 779 (Pa. Super. 1996), is misplaced, where the appellant in that case
filed a timely notice of appeal within thirty days of the judgment of
sentence and properly filed no post-sentence motions in the summary case
appeal. See Dougherty, supra at 781; (see also Appellant’s Brief, at 14).
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J-S27037-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2017
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