Com. v. Davis, C. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
CHRYSTAL ANN DAVIS, :
:
Appellant : No. 134 MDA 2017
Appeal from the Judgment of Sentence Entered December 14, 2016,
in the Court of Common Pleas of Franklin County,
Criminal Division at No(s): CP-28-CR-0000705-2016
BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 23, 2017
Chrystal Ann Davis (Appellant) appeals from the judgment of sentence
imposed after she was found guilty of driving under the influence (DUI). For
the reasons that follow, we quash this appeal.
Given the manner in which we dispose of this matter, we need not
provide a full recitation of the factual history. Pertinent to this appeal, on
October 27, 2016, the trial court found Appellant guilty of DUI and on
December 14, 2016, Appellant was sentenced to six months’ probation and
ordered to pay a $300 fine.
Appellant filed a notice of appeal, which was received and docketed by
the clerk of courts in Franklin County on January 17, 2017. Thereafter, the
trial court issued an order directing Appellant to comply with the
* Retired Senior Judge assigned to the Superior Court.
J-S62041-17
requirements of Pa.R.A.P 1925(b). Appellant filed her concise statement on
February 7, 2017, and the trial court issued its opinion on March 2, 2017.
In her brief to this Court, Appellant asks us to consider two issues
concerning the initial stop of her vehicle and the evidence produced by the
Commonwealth to sustain her conviction. However, before we can reach the
merits of those issues, we must address whether this Court has jurisdiction
to entertain this appeal. See Commonwealth v. Demora, 149 A.3d 330,
331 (Pa. Super 2016) (“We may raise the issue of jurisdiction sua sponte.”).
A “notice of appeal required by Rule 902 (manner of taking appeal)
shall be filed within 30 days after the entry of the order from which the
appeal is taken.” Pa.R.A.P. 903. Here, the period in which to file a notice of
appeal timely ended on Friday, January 13, 2017. Appellant’s notice of
appeal was docketed on Tuesday, January 17, 2017, one business day
beyond the deadline.1
Upon initial review of the record, this Court issued a rule to show
cause why this appeal should not be quashed. See Order, 3/28/2017.
Forest Dean Morgan, Esquire, counsel for Appellant, filed an answer on her
behalf, averring that the notice of appeal was mailed on January 11, 2017.
Appellant’s Answer to Rule to Show Cause, 4/3/2017, at 1 (unnumbered).
This is of no moment, as it is well-settled that “[f]iling may be accomplished
by mail addressed to the prothonotary, but except as otherwise provided by
1
Monday, January 16, 2017 was a court holiday.
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these rules, filing shall not be timely unless the papers are received
by the prothonotary within the time fixed for filing.” Pa.R.A.P. 121
(emphasis added).2
Nonetheless, Attorney Morgan argues the untimely filing of Appellant’s
notice of appeal should be accepted nunc pro tunc for the following reasons:
(1) events that led to the filing of this appeal only became known to him and
Appellant several days prior to the expiration of the appeal period; (2) the
notice of appeal was mailed two days prior to the end of the appeal period,
averring “no other practical means for delivering the notice existed[,]”
because he is a solo-practitioner whose office is sixty miles away from the
courthouse, scheduling conflicts prohibited him from hand delivering the
notice, Franklin County does not permit electronic filings, and his secretary
was nine months pregnant at the time and unable to drive long distances;
(3) based on previous experience with mailing filings, Attorney Morgran had
a reasonable basis for believing that the notice would be received by the
clerk of courts in a timely manner; and (4) we should grant Appellant’s
motion to treat this notice of appeal as having been timely filed nunc pro
tunc because Appellant has met the standards set forth in Bass v.
2
We are cognizant that this rule applies to, inter alia, appellate court filings.
Nonetheless, our case law and rules have reiterated that a notice of appeal
must be filed within thirty days. See Commonwealth v. Moir, 766 A.2d
1253, 1254 (Pa. Super. 2000) (“[A] notice of appeal must be filed within
thirty days after the date of entry of that order.”). See also Pa.R.A.P. 105
([“This C]ourt may not enlarge the time for filing a notice of appeal[.]”).
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Commonwealth Bureau of Corrections, 401 A.2d 1133 (Pa. 1979).3
Appellant’s Answer to Rule to Show Cause, 4/3/2017, at 1-8 (unnumbered).
However, despite Appellant’s protestations to the contrary, we find this
case akin to our Supreme Court’s decision in Criss v. Wise, 781 A.2d 1156(Pa. 2001) In Criss, the Court, interpreting and seemingly narrowing its
decision in Bass, determined that non-negligent, extraordinary
circumstances that would permit the untimely filing of a notice of appeal did
not include a party’s failure to anticipate a delay in mail delivery. Criss, 781
A.2d at 1160. Although in Criss, the filing was mailed around a busy
holiday season, the Court nonetheless held that “regardless of the season,
an appellant has a duty to suspect delays when mailing a notice of appeal.”
Id. at 1160, n.3. As such, our high court rejected Criss’s request that it find
that the delayed filing constituted a non-negligent circumstance as outlined
3
In Bass, our Supreme Court
found that where an appellant, an appellant’s counsel, or an
agent of appellant’s counsel has failed to file a notice of appeal
on time due to non-negligent circumstances, the appellant
should not lose his day in court. Therefore, the Bass Court
expanded the limited exceptions for allowing an appeal nunc pro
tunc to permit such an appeal where the appellant proves that:
(1) the appellant’s notice of appeal was filed late as a result of
non-negligent circumstances, either as they relate to the
appellant or the appellant’s counsel; (2) the appellant filed the
notice of appeal shortly after the expiration date; and (3) the
appellee was not prejudiced by the delay.
Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001) (citation omitted).
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in Bass. In holding as such, the Court found that the exception for filing an
appeal nunc pro tunc
in non-negligent circumstances is meant to apply only in unique
and compelling cases in which the appellant has clearly
established that she attempted to file an appeal, but
unforeseeable and unavoidable events precluded her from
actually doing so. See [Cook v. Unemployment Comp. Bd. Of
Review, 671 A.2d 1130, 1132 (Pa. 1996)]; Perry v.
Unemployment Comp. Bd. of Review, [459 A.2d 1342, 1343
(Pa. Cmwlth. 1983)] (fact that law clerk’s car broke down while
he was on route to the post office, precluding him from getting
to the post office before closing time, was a non-negligent
happenstance for granting appeal nunc pro tunc ); Tony
Grande, Inc. v. Workmen’s Comp. Appeal Bd. (Rodriquez),
[455 A.2d 299, 300 (Pa. Cmwlth. 1983)] (hospitalization of
appellant’s attorney for unexpected and serious cardiac problems
ten days into twenty day appeal period was reason to allow
appeal nunc pro tunc ); Walker v. Unemployment Comp. Bd.
of Review, [461 A.2d 346, 347 (Pa. Cmwlth. 1983)] (U.S.
Postal Service’s failure to forward notice of referee’s decision to
appellant’s address, as appellant had requested, warranted
appeal nunc pro tunc ). But cf. In re In the Interest of C.K.,
[535 A.2d 634, 639 (Pa. Super. 1987)] (appeal nunc pro tunc
denied where counsel was absent from office and did not learn of
appellant’s desire to appeal before expiration period because
counsel negligently failed to make arrangements to look over his
professional obligations); Moring v. Dunne, [493 A.2d 89, 92-
93 (Pa. Super. 1985)] (although death of appellant’s attorney
may have qualified as a non-negligent circumstance, appellant
failed to prove that he attempted to appeal on time but was
precluded from doing so as a result of receiving late notice of his
attorney’s death). Accordingly, as delays in the U.S. mail are
both foreseeable and avoidable, [a]ppellee’s failure to anticipate
a potential delay in the mail was not such a non-negligent
circumstance for which an appeal nunc pro tunc may be granted.
Id. at 1160 (footnotes omitted). Although Attorney Morgan has represented
to this Court several additional hurdles he contends precluded the timely
filing of a notice of appeal, we have concluded that none of these obstacles
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falls within the ambit of acceptable non-negligent circumstances, as outlined
supra.
Thus, in light of the foregoing, we conclude that Appellant untimely
filed her notice of appeal. Consequently, this Court does not have
jurisdiction to entertain the appeal. For these reasons, we quash this
appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2017
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