In Re: Black, D., Appeal of: Black, D.

J-A04032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: DORA MAE BLACK IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: DORA MAE BLACK
No. 2068 WDA 2014
Appeal from the Order December 5, 2014
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-MD-0000152-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 12, 2016
This is an appeal from the December 5, 2014 order of the Greene
County Court of Common Pleas denying an appeal nunc pro tunc to
Appellant, Dora Mae Black. For the reasons that follow, we reverse and
remand.
The record reveals the following: On October 28, 2014, a magisterial
district judge found Appellant guilty of the summary offense of criminal
mischief and sentenced her to five days in jail. N.T., 12/5/14, at 3.
Subsequently, Appellant sought representation by the Greene County Public
Defender for the purpose of filing an appeal. Id.; Petition to Appeal Nunc
Pro Tunc (“Petition”), 12/5/14, at ¶ 3. When the Greene County Public
Defender discovered a conflict due to that office’s representation of
Appellant’s co-defendant, the case was referred to conflict counsel. N.T.,
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12/5/14, at 3, 4–5. When conflict counsel also had a conflict with the case,
the matter returned to the Greene County Public Defender. Id. at 5.
On Monday, November 24, 2014, during “the evening hours,” the
public defender’s office requested Attorney David J. Russo, who is present
appellate counsel, to serve as conflict counsel. Petition, 12/5/14, at ¶ 4;
N.T., 12/5/14, at 5. The appointment order is dated November 26, 2014.
Order, 11/26/14. Appellant contends that Attorney Russo was unable to file
a timely appeal.
On December 5, 2014, in the Greene County Court of Common Pleas
motions court, Attorney Russo presented a Petition to Appeal Nunc Pro Tunc
and To Stay Sentence “until after the appeal has been heard.” Petition,
12/5/14, at ¶ 7. Following argument by Attorney Russo and the
Commonwealth, the common pleas court denied the appeal nunc pro tunc.
Thereafter, also on December 5, 2014, Appellant filed a notice of appeal to
this Court. Notice of Appeal, 12/5/14. The common pleas court granted
Appellant a stay of her sentence “upon consideration of the . . . Notice of
Appeal taken with the Superior Court of Pennsylvania.” Order, 12/5/14.
The common pleas court did not order the filing of a statement of errors
pursuant to Pa.R.A.P. 1925 (b), and none was filed.
Appellant raises the following issues on appeal:
I. When a defendant timely files an application with the
public defender[’]s office and is elidgible [sic] for sevices
[sic] in a request to file a summary appeal does the
inability and conflict with the public defender’s office and
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conflicts counsel amount to a breakdown in the judicial
system when counsel is unable to timely file her appeal
within the perscribed [sic] time period because of said
conflicts?
II. Did the trial court err by not granting Appellant a hearing
or engage in a fact finding process to determine if there
had been fraud or a breakdown of the judicial system as a
reason for filing her summary appeal nunc pro tunc?
Appellant’s Brief at 5 (full capitalization omitted).
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
as a matter of grace. Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.
Super. 2002). Allowance of appeal nunc pro tunc lies, in the first instance,
in the sound discretion of the trial court. Commonwealth v. Jarema, 590
A.2d 310, 312 (Pa. Super. 1991). An order denying a petition to appeal
nunc pro tunc is reversible in instances where the court abused its discretion
or drew an erroneous legal conclusion, Commonwealth v. Yohe, 641 A.2d
1210, 1211 (Pa. Super. 1994) (citing Jarema, 590 A.2d at 312), “or where
the appellant, his counsel, or a third party’s non-negligent actions have
caused a delay in the filing of an appeal.” Commonwealth v. Bassion,
568 A.2d 1316, 1318–1319 (Pa. Super. 1990).
A party seeking leave to appeal from a summary
conviction nunc pro tunc has the burden of demonstrating two
things: (1) that the delay in filing her appeal was caused by
extraordinary circumstances involving fraud or a wrongful or
negligent act of a court official resulting in injury to that party
and (2) that upon learning of the existence of the grounds relied
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upon for nunc pro tunc relief, she acted promptly to seek such
relief.
Yohe, 641 A.2d at 1212.
Herein, it appears from the record that Appellant was unrepresented
by counsel at the proceeding before the magisterial district judge, although
we cannot definitively say that is so.1 Any appeal from that October 28,
2014 summary conviction was required to be filed within the ensuing thirty-
day-appeal period. Pa.R.Crim.P. 460 (“When an appeal is authorized by law
in a summary proceeding . . . that provides for imprisonment upon
conviction, . . . an appeal shall be perfected by filing a notice of appeal
within 30 days after the entry of . . . the conviction.”). The last day of the
thirty-day period fell on Thursday, November 27, 2014, which was
Thanksgiving Day. N.T., 12/5/14, at 7. Pa.R.A.P. 1901 provides, in relevant
part, “Whenever the last day of any [appeal] period shall fall on Saturday or
Sunday, or on any day made a legal holiday . . . , such day shall be omitted
from the computation.” Moreover, on Thanksgiving Day, as well as Friday,
November 28, 2014, the Greene County Courthouse was closed.2 N.T.,
12/5/14, at 7. Attorney Russo averred that he was involved in a jury trial on
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1
The docket entries from the case before the magisterial district judge have
been made part of this certified record. They do not reflect an entry of
appearance by counsel for Appellant.
2
Counsel’s argument regarding his petition to appeal nunc pro tunc to the
motions court on December 5, 2014, was transcribed and forwarded to this
Court as a supplement to the certified record in the instant matter.
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November 25 and 26, 2014, and was unable to timely file the appeal. Id. at
3; Petition, 12/5/14, at ¶ 4. While the Greene County Courthouse was open
on Monday, December 1, 2014, and thereafter, Attorney Russo was out of
town for the Thanksgiving holiday until December 4, 2014, the evening
before he presented the instant petition to appeal nunc pro tunc. N.T.,
12/5/14, at 7.
We conclude that Appellant’s informa pauperis status, the apparent
lack of representation at the magistrate’s hearing, the conflicts in the public
defender’s office and with initial conflict counsel, Attorney Russo’s receipt of
the conflicts-counsel appointment two days before the appeal period
expired, counsel’s involvement in a two-day jury trial, the occurrence of the
Thanksgiving holiday and closing of the Greene County Courthouse, and
counsel’s pre-planned Thanksgiving vacation conflated to establish a perfect
storm that justifies the grant of an appeal nunc pro tunc.
In reaching our conclusion, we are guided by Criss v. Wise, 781 A.2d
1156, 1159-1160 (Pa. 2001), where our Supreme Court stated as follows:
[A]ppellate courts may grant a party equitable relief in the form
of an appeal nunc pro tunc in certain extraordinary
circumstances. Commonwealth v. Stock, 545 Pa. 13, 679
A.2d 760, 763-64 (1996). Initially, an appeal nunc pro tunc was
limited to circumstances in which a party failed to file a timely
notice of appeal as a result of fraud or a breakdown in the
court’s operations. West Penn Power Co. v. Goddard, 460
Pa. 551, 333 A.2d 909, 912 (1975) (the time for taking an
appeal will not be extended as a matter of grace or mere
indulgence). In Bass v. Commonwealth Bureau of
Corrections, et al., 485 Pa. 256, 401 A.2d 1133 (1979),
however, this Court found that where an appellant, an
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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.
Id. at 1135. 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. See id. at 1135-36 (allowing appellant
to appeal nunc pro tunc where appeal was filed four days late
because appellant’s attorney placed the notice of appeal on the
desk of the secretary responsible for ensuring that appeals were
timely filed and the secretary became ill and left work, not
returning until after the expiration of the period for filing an
appeal); see also Cook v. Unemployment Comp. Bd. of
Review, 543 Pa. 381, 671 A.2d 1130, 1132 (1996) (granting
appeal nunc pro tunc where claimant filed appeal four days late
because he was hospitalized).
Id.Moreover, as this case involves a sentence of short duration, Appellant
herein has no access to relief under the Post-Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541–9546, to vindicate her rights. Cf. Commonwealth v.
Turner, 80 A.3d 754, 766 (Pa. 2013) (legislature aware that custody or
control requirement of 42 Pa.C.S. § 9543(a)(1)(i) “would be that defendants
with short sentences would not be eligible for collateral relief. Indeed, that
was the apparent intent: to restrict collateral review to those who seek relief
from a state sentence.”). See also Stock, 679 A.2d at 764 (the appellant is
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not able to vindicate his right to appeal via the PCRA because he is not
eligible to seek relief thereunder pursuant to 42 Pa.C.S. § 9543(2)).3
In summary, given the coalescence of the circumstances of this case,
it would be patently unfair to deprive Appellant of the ability to protect her
constitutional right to an appeal. While our case law is clear that failure to
file a summary appeal within the applicable thirty-day time limit typically
results in waiver, Jarema, 590 A.2d at 311–312, nunc pro tunc relief
remains available to safeguard the constitutional right to appeal when
extraordinary circumstances result in the untimely filing of an appeal.
Therefore, following our complete review of the record, including the
arguments of the parties and the relevant law, we conclude that the trial
court abused its discretion in denying Appellant’s petition to appeal nunc pro
tunc.
Order reversed. Case remanded for proceedings consistent with this
Memorandum. Jurisdiction relinquished.
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3
In light of our disposition, we need not address Appellant’s second issue.
See Peterson v. Shreiner, 822 A.2d 833, 836 (Pa. Super. 2003) (“We shall
only address [the appellant’s] third issue since we are reversing the decision
of the trial court on that basis.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2016
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