Com. v. Breeden, K.

J-S66019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KARL BREEDEN, :
:
Appellant : No. 11 MDA 2014
Appeal from the Judgment of Sentence Entered December 5, 2012,
In the Court of Common Pleas of York County,
Criminal Division, at No. CP-67-CR-0001269-2011.
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 17, 2014
Appellant, Karl Breeden, purports to appeal from the judgment of
sentence entered following his convictions of multiple theft offenses.1 After
careful review, we quash this appeal as untimely filed.
The trial court summarized the facts of this case as follows:
The Commonwealth presented numerous witnesses to
prove [Appellant’s] guilt beyond a reasonable doubt to the Jury.
This Court will address what it feels to be the most relevant facts
and evidence revealed throughout the trial.
Michael Yergo, the president and a majority shareholder of
[Advance Industrial Services], testified that he hired [Appellant],
along with the approval of Kris Mailey, the second majority
shareholder and corporate vice president. Contrary to
1
We note that the caption in this matter, and the notice of appeal filed by
Appellant, indicate that this appeal is from the order of the trial court
entered on November 25, 2013. However, as will be discussed in detail
below, this appeal was not properly brought from that order.
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[Appellant], Mr. Yergo testified that when he hired [Appellant] he
never promised [Appellant] an ownership in the company, and
he never gave [Appellant] a specific timeline in which that would
occur. In the early 1990s, [Appellant] in fact became an owner
of the company, along with Jim Heinrichs, when he received a
2% share in the company. [Appellant] began as the company’s
controller and then advanced to CFO, and he took charge of all
the company’s financial responsibilities. Mr. Yergo trusted
[Appellant] with the finances of the company until [Appellant]
was let go on June 8, 2010. Mr. Yergo explained that the
company gave bonuses at year’s end based on profitability, and
he never gave [Appellant] permission to give himself bonuses in
addition to his normal salary or calculated year-end bonus. Mr.
Yergo approved two personal loans for [Appellant] -- $60,000
and $100,000 -- and he placed [Appellant] in charge of
organizing a repayment schedule, as [Appellant] did with all
company loans. [Appellant] never made a payment on these
loans, even after signing a promissory note . . . . Despite being
advised he was no longer allowed to take out company loans,
[Appellant] took an additional $75,000 loan without permission
of Mr. Yergo.
[Appellant] also signed the company’s policy manual,
which explained the vacation policy. Mr. Yergo never gave
[Appellant] special permission to cash in vacation time beyond
that to which he was entitled under company policy. [Mr.] Yergo
further testified that [Appellant] did not have the authority to
use his signature stamp for personalized checks. [Mr.] Yergo
claimed he had no knowledge that [Appellant] was writing
himself checks and using [Mr. Yergo’s] signature stamp. Mr.
Yergo only authorized his signature stamp to be used for
company expenses and reimbursing any out-of-pocket expenses.
Furthermore, [Mr.] Yergo testified that he approved all company
bonuses, and no minority shareholder (like [Appellant]) would be
authorized to take one without approval.
The Commonwealth also presented the testimony of Elaine
Druck, who handled payroll for the company since 1993. Ms.
Druck was aware of the vacation policy specifics and the
possibility of payment to employees for unused vacation days.
Ms. Druck testified that [Appellant] began sending her emails
demanding cash for his vacation time. She explained that she
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began [forwarding] these emails to her home address because
they contradicted company policy, and she wanted to protect
herself. Ms. Druck reviewed all these emails during trial and
each payout made at the request of [Appellant]. She explained
that [Appellant] received all these checks in addition to his
normal salary. Ms. Druck further testified about the number and
amount of bonus payments [Appellant] received, which
exceeded the bonus payments to any other employee. From her
experience with the company, Ms. Druck explained that she
never processed bonus payments of this nature for any other
A.I.S. employee. Ms. Druck also revealed the number of
vacation hours [Appellant] cashed in from 2006 through 2010.
Finally, Ms. Druck explained that [Appellant] directed her to stop
tracking shareholder vacation, which [Ms. Druck] said she had
been doing since she began her employment. [Ms.] Druck
further stated she did not question [Appellant] because he was
her boss at the time.
Barbara Lamer also testified for the Commonwealth during
the trial. Ms. Lamer was hired as accounting manager, and at
the time of trial, held the position of controller – [Appellant’s]
prior position. Ms. Lamer first testified about the company’s
general ledger account, which showed the company loan
amounts specific to [Appellant]. Ms. Lamer next explained the
payroll check history report, which shows every payroll check
issued for each employee every week. This report documented
every payment that [Appellant] received from 2006 through
2010, and provided the specific amount of additional bonus and
vacation payments that [Appellant] received. After reviewing
this report, Ms. Lamer testified that the total amount of vacation
payments came to about $131,000, which she explained was not
even close to a normal occurrence. Ms. Lamer then compared
[Appellant’s] salary with Jim Heinrich’s salary, who received a
similar salary as [Appellant]. Ms. Lamer then reviewed the W-2
information on both [Appellant] and Mr. Heinrich, and her
testimony showed that [Appellant] reported a significantly higher
gross income than his or Mr. Heinrich’s salaried amount for any
year from 2006 – 2010. [Appellant’s] gross income was even
higher than the owners’ salaries. [Appellant] provided Ms.
Lamer with the explanation that he had worked out a deal with
the company to repay him for ownership that he was promised
but never received.
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Finally, [Appellant] testified during the defense’s case in
chief. [Appellant’s] testimony offered an explanation as to why
he was entitled to the money he received from the company.
When first hired, [Appellant claimed] that he would need three
things to leave his then-current position, which included: a
salary at least equal to his current salary; 4 weeks vacation
minimum; and ownership interest to increase by 1% per year
beginning in 1994. [Appellant] had no written documentation of
this proposed agreement with [either] Mr. Yergo or Mr. Mailey.
[Appellant] received 2% ownership in the company by 1995, and
[Appellant] was not issued any more stock until 2006, when he
received an additional 1% ownership. [Appellant] testified that
he did not leave the company because he trusted Mr. Yergo
would follow through with his promises and make the situation
right. Because of his discontent, [Appellant] emailed Mr. Yergo
and requested a meeting to discuss a bonus, which was not to
exceed $300,000. [Appellant] further testified that Mr. Yergo
and Mr. Mailey were “very receptive” to the idea of this bonus.
[Appellant] testified that he was entitled to the money he took
pursuant to the undocumented, pre-employment agreement and
the bonus agreement with the majority shareholders.
Trial Court Opinion, 3/26/14, at 3-6 (citations omitted).
In addition, the trial court summarized the procedural history of this
case as follows:
[Appellant] was found guilty by a jury of numerous theft
offenses on August 13, 2012; those charges were Forgery under
18 Pa.C.S.A. § 4101(a)(1), Theft by Deception under 18
Pa.C.S.A. § 3922(a)(1), Theft by Unlawful Taking under 18
Pa.C.S.A. § 3921(a)(1), and Theft by Receiving Stolen Property
under 18 Pa.C.S.A. § 3925(a). The jury further found that the
loss to the victim, Advance Industrial Services, was $2,000 or
more. On August 23, 2012, [Appellant] filed Post-Verdict
Motions that [the trial court] denied generally on September 17,
2012. [The trial court] sentenced [Appellant] on November 30,
2012, and during sentencing, the Court heard additional
testimony and argument regarding restitution. On December 4,
2012, [the trial court] set restitution in the amount of
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$377,701.00. [Appellant] then filed a Post Sentence
Motion/Motion to Set Restitution/Motion to Set Court Costs on
December 20, 2012. As a result of this motion, a hearing was
scheduled for February 19, 2013, on the matter of restitution.
On December 11, 2012, [Appellant] filed a Notice of
Appeal with the Superior Court. However, the appeal in this
matter was discontinued on December 31, 2012, after
[Appellant] filed a Praecipe to Discontinue the Appeal due to the
Motion for Restitution that was still pending with this Court.
On February 19, 2013, this Court held a restitution hearing
during which additional testimony and evidence was presented.
As a result, this Court ordered that the trial transcripts be made
available to counsel. Counsel was ordered to file memoranda
regarding their positions as to restitution within 60 days of
receiving the transcripts. [Appellant], who was joined by the
Commonwealth, filed a Motion to Extend Time to file the
restitution memorandum due to the extensive record and the
complexity of the issues. [The trial court] then extended the
filing deadline to July 30, 2013. The Commonwealth then
requested a further extension of time, and [the trial court] again
extended the filing deadline to August 9, 2013. The
Commonwealth in fact filed its memorandum by August 9, 2013.
Trial Court Opinion, 3/26/14, at 1-3 (citations omitted).
On November 25, 2013, the trial court entered an order adjusting the
amount of Appellant’s restitution to $362,609.28. This appeal followed.
Appellant presents the following issues for our review:
1. Whether the trial court erred when it denied the Motion to
Dismiss the conviction for forgery pursuant to Section
4101(a)(1)?
2.a. Whether the trial court erred when it denied the Motion
Challenging the Weight of the Evidence as to Theft By Deception
– False Impression pursuant to Section 3922(a)(1)?
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2.b. Whether the trial court erred when it denied the Motion
Challenging the Weight of the Evidence as to the Charge of Theft
By Unlawful Taking – Removable Property pursuant to Section
3921(a)?
2.c. Whether the trial court erred when it denied the Motion
Challenging the Weight of the Evidence as to the Charge of
Receiving Stolen Property pursuant to Section 3925?
3. Whether the trial court erred when it denied counsel’s
objection to the Commonwealth presenting rebuttal witnesses?
4. Whether the evidence presented at trial was insufficient as to
the charges of Forgery; Theft by Deception; Receiving Stolen
Property; and Theft by Unlawful Taking?
5. Whether the trial court erred when it partially denied the
Motion to Set Restitution, specifically, when the court included
$47,200.00 as part of the restitution from the alleged, forged
checks which was already part of the “unauthorized vacation
payments” and was also a part of the settlement agreement
reached by the parties prior to the criminal charges being filed?
Appellant’s Brief at 4.
As a prefatory matter, we note that the Commonwealth, in its brief,
presents an argument that this appeal is untimely because the notice of
appeal has been filed late. Commonwealth’s Brief at 3-5. Thus, before we
review the issues presented by Appellant, we must address the timeliness of
this appeal because it appears that Appellant filed the instant notice of
appeal beyond the period permitted by law.
The question of timeliness of an appeal is jurisdictional.
Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000). Time
limitations on appeal periods are strictly construed and cannot be extended
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as a matter of grace. Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.
Super. 2002) (citing Commonwealth v. Hottinger, 537 A.2d 1, 3 (Pa.
Super. 1987)). See also Pa.R.A.P. 105(b) (stating that, although an
appellate court may enlarge the time prescribed in the rules of appellate
procedure for good cause shown, the court may not enlarge the time for
filing a notice of appeal).
The time limit for the filing of challenges to a judgment of sentence is
set forth in the Judicial Code as follows:
§ 5571. Appeals generally
(a) General rule.—The time for filing an appeal, a petition for
allowance of appeal, a petition for permission to appeal or a
petition for review of a quasi-judicial order, in the Supreme
Court, the Superior Court or the Commonwealth Court shall be
governed by general rules. No other provision of this
subchapter shall be applicable to matters subject to this
subsection.
42 Pa.C.S. § 5571(a) (emphasis added).
The relevant rules of appellate procedure promulgated by the
Pennsylvania Supreme Court provide as follows:
Rule 902. Manner of Taking Appeal
An appeal permitted by law as of right from a lower
court to an appellate court shall be taken by filing a notice
of appeal with the clerk of the lower court within the time
allowed by Rule 903 (time for appeal). Failure of an
appellant to take any step other than the timely filing of a notice
of appeal does not affect the validity of the appeal, but it is
subject to such action as the appellate court deems appropriate,
which may include, but is not limited to, remand of the matter to
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the lower court so that the omitted procedural step may be
taken.
Pa.R.A.P. 902 (emphasis added).
Rule 903. Time for Appeal
(a) General Rule. Except as otherwise prescribed by this rule,
the 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(a) (emphasis added).
In addition, we are mindful that Pa.R.Crim.P. 720 addresses post-
sentence procedures. Specifically, Pa.R.Crim.P. 720(A) provides that “a
written post-sentence motion shall be filed no later than 10 days after
imposition of sentence.” Pa.R.Crim.P. 720(A)(1). Rule 720 further provides
as follows:
(2) If the defendant files a timely post-sentence motion, the
notice of appeal shall be filed:
(a) within 30 days of the entry of the order deciding
the motion;
(b) within 30 days of the entry of the order denying
the motion by operation of law in cases in which the
judge fails to decide the motion; or
(c) within 30 days of the entry of the order
memorializing the withdrawal in cases in which the
defendant withdraws the motion.
Pa.R.Crim.P. 720(A)(2) (emphasis added). However, “[i]f the defendant
does not file a timely post-sentence motion, the defendant’s notice of appeal
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shall be filed within 30 days of imposition of sentence, ...” Pa.R.Crim.P.
720(A)(3).
In Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003) (en
banc), this Court offered the following additional explanation, which we find
pertinent:
From the above, it can be seen that the time for filing an appeal
can be extended beyond 30 days after the imposition of
sentence only if the defendant files a timely post-sentence
motion. The Comment to Rule 720 emphasizes this point as
follows: “If no timely post-sentence motion is filed, the
defendant’s appeal period begins to run from the date sentence
is imposed.” Thus, where the defendant does not file a timely
post-sentence motion, there is no basis to permit the filing of an
appeal beyond 30 days after the imposition of sentence. This
interpretation of Rule 720 is amply supported by this Court’s
recent decision in Commonwealth v. Bilger, 803 A.2d 199 (Pa.
Super. 2002), appeal denied, 572 Pa. 695, 813 A.2d 835 (Pa.
2002) in which we stated:
As can be readily observed by reading the text of
Rule of Criminal Procedure 720, ordinarily, when a
post-sentence motion is filed an appellant has thirty
(30) days from the denial of the post-sentence
motion within which to file a notice of appeal.
However, by the explicit terms of Pa.R.Crim.P.
720(A)(2), the provision allowing thirty days from
the denial of post-trial motions is contingent upon
the timely filing of a post-trial motion.
Bilger, 803 A.2d at 201. We further opined that “in order for
the denial of post-sentence motions to become the triggering
event, it is necessary that the post-sentence motions be
timely filed. Second, absent a timely filed post-sentence
motion, the triggering event remains the date sentence is
imposed.” Id. at 202 (emphasis added).
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Dreves, 839 A.2d at 1127. Therefore, “[f]or purposes of triggering the
appeal period, [the] filing of an untimely post-sentence motion is equivalent
to a complete failure to file a post-sentence motion.” Bilger, 803 A.2d at
202.
Here, our review of the record reflects the following. On August 13,
2012, a jury convicted Appellant of the crimes stated above. On November
30, 2012, the trial court sentenced Appellant to a term of incarceration of
one year less one day to two years less one day for the conviction of theft by
deception and a concurrent term of probation of ten years for the conviction
of forgery. In an order dated December 4, 2012, the trial court directed
Appellant to make restitution in the amount of $377,701.00. The record
further reflects that the restitution order was docketed on December 5,
2012, and notice of the order was sent to the parties on December 6, 2012.
Thus, assuming for the sake of argument that the ten-day time period for
the filing of a post-sentence motion began when notice of the restitution
order was sent on December 6, 2012, Appellant’s post-sentence motion was
due on or before December 17, 2012.2
2
Appellant needed to file his post sentence motion by Monday, December
17, 2012, because December 16, 2012, was a Sunday. See 1 Pa.C.S. §
1908 (stating that, for computations of time, whenever the last day of any
such period shall fall on Saturday or Sunday, or a legal holiday, such day
shall be omitted from the computation).
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However, the record further reflects that Appellant did not file his post-
sentence motions until December 20, 2012. Because Appellant’s post-
sentence motion was untimely filed, it is the equivalent of a complete failure
to file a post-sentence motion. Bilger, 803 A.2d at 202. Thus, Appellant’s
untimely post-sentence motion did not toll the time period for filing a direct
appeal. Accordingly, in the best case scenario for Appellant, his appeal
period began to run on the date that notice of the restitution order was
mailed, i.e., December 6, 2012, and the instant notice of appeal had to be
filed within thirty days, or on January 7, 2013.3 However, the instant notice
of appeal was not filed until December 23, 2013, over eleven months late.
Hence, this appeal must be quashed.
Moreover, we are cognizant that the trial court overlooked the
untimely filing of Appellant’s post-sentence motion and addressed that
motion, which initiated the instant appeal. However, such action by the trial
court does not alter our decision that this appeal is untimely and must be
quashed.
Where a trial court considers an untimely post-sentence motion, we
have observed the following:
[A]bsent the additional step by the trial court of vacating the
sentence within the thirty-day period and prior to the taking of
3
Appellant was required to file the instant notice of appeal by Monday,
January 7, 2013, because January 5, 2013, was a Saturday. 1 Pa.C.S. §
1908.
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an appeal, the court’s decision to do so should not affect the
running of the appeal period and a potential appellant will still be
obligated to file an appeal within thirty days of imposition of
sentence. See Commonwealth v. Quinlan, 639 A.2d 1235(Pa. Super. 1994). To invoke a rule that ties the start of the
appeal period to the trial court’s subsequent decision to either
consider the merits of an untimely filed post-sentence motion, or
the trial court’s decision to equate an untimely petition as no
petition, would add uncertainty to an otherwise certain rule and
add confusion where there need be none.
Bilger, 803 A.2d at 202 n.5.
Likewise, in Dreves, we held that an untimely post-sentence motion
did not extend the time period for filing an appeal from the judgment of
sentence. We acknowledged in Dreves that the trial court did have the
power to grant the filing of a post-sentence motion nunc pro tunc within
thirty days of the judgment of sentence, but specifically ruled that the fact
that the trial court entertained and denied the untimely motion did not toll
the appeal period. We explained that unless a defendant specifically files a
motion seeking permission to file a post-sentence motion nunc pro tunc and
unless the trial court expressly grants the request within thirty days of the
imposition of the sentence, the appeal period continues to run. See
Dreves, 839 A.2d at 1128-1129 (stating that “[t]he trial court’s resolution
of the merits of a late post-sentence motion is no substitute for an order
expressly granting nunc pro tunc relief”).
In this case, even though the trial court considered the merits of the
untimely post-sentence motion, the trial court failed to acknowledge that the
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post-sentence motion was untimely. Moreover, the trial court did not
expressly grant Appellant permission to file a post-sentence motion nunc pro
tunc. Therefore, we are constrained to conclude that the instant notice of
appeal was untimely filed and quash this appeal.
Appeal quashed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2014
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