Com. v. Lepre, G.

J-S83019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GERALD LEPRE,
Appellant No. 272 WDA 2016
Appeal from the Judgment of Sentence December 16, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): FD No. 15-00354
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 16, 2016
Appellant Gerald Lepre appeals from the judgment of sentence entered
following his conviction of two counts of indirect criminal contempt (“ICC”)
for violations of a Protection from Abuse (“PFA”) order. We quash.
The trial court summarized the procedural history of this case as
follows:
Family Division Plaintiff Erica Milton sought and obtained a
temporary PFA Order against her ex-boyfriend, [Appellant] on
March 11, 2015. A final hearing was held, and a final PFA Order
[was] entered on May 20, 2015. [Appellant] was subsequently
charged with three (3) counts of Indirect Criminal Contempt on
May 11, 2015, June 3, 2015 and October 1, 2015, respectively.
An ICC Hearing was held before this Court on December 16,
2015, and following the presentation of evidence, [Appellant]
was found guilty of the ICC Complaints dated May 11, 2015 and
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*
Retired Senior Judge assigned to the Superior Court.
J-S83019-16
June 3, 2015, but was found not guilty of the ICC Complaint
from October 1, 2015. He was immediately sentenced to a term
of imprisonment of 90 days for the May 11, 2015 violation and
an additional term of imprisonment of six (6) months at the June
3, 2015 violation, which was suspended. Post-Sentence Motions
were filed and were denied on January 25, 2016. This appeal
followed.
Trial Court Opinion, 6/24/16, at 1.
Appellant presents the following issues for our review:
I. Did the Commonwealth present sufficient evidence to
prove [Appellant] violated the terms of the protection from
abuse order?
II. Were the verdicts of guilty for indirect criminal contempt
against the weight of the evidence?
Appellant’s Brief at 5.
Before addressing the merits of Appellant’s claims, we must address
the timeliness of this appeal as it implicates our jurisdiction.
Commonwealth v. Ivy, 146 A.3d 241, 255 (Pa. Super. 2016) (citing
Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa. 1999)) (appellate courts
may consider the issue of jurisdiction sua sponte). “Jurisdiction is vested in
the Superior Court upon the filing of a timely notice of appeal.”
Commonwealth v. Nahavandian, 954 A.2d 625, 629 (Pa. Super. 2008)
(citing Commonwealth v. Miller, 715 A.2d 1203, 1205 (Pa. Super. 1998)).
As noted, Appellant was sentenced on December 16, 2015. Of import
is the fact that Appellant was sentenced in open court following the ICC
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hearing. N.T., 12/16/15, at 21.1 This Court has explained that the date of
imposition of sentence in open court is the reference point for computing
time for purposes of post-sentence motions and appeals, and not the date
on which the sentencing order is docketed. Nahavandian, 954 A.2d at 630.
Thus, Appellant’s sentencing in open court on December 16, 2015,
constitutes the reference point for determining the timeliness of post-
sentence motions or a notice of appeal.
Rule 720 of the Rules of Criminal Procedure provides, in relevant part,
as follows:
Rule 720. Post-Sentence Procedures; Appeal
(A) Timing.
(1) Except as provided in paragraphs (C) [After-
discovered evidence] and (D) [summary case
appeals], a written post-sentence motion shall be
filed no later than 10 days after imposition of
sentence.
* * *
(3) If the defendant does not file a timely post-
sentence motion, the defendant’s notice of appeal
shall be filed within 30 days of imposition of
sentence, except as provided in paragraph (A)(4)
[addressing a Commonwealth motion to modify
sentence].
Pa.R.Crim.P. 720(A)(1), (3).
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1
Although Appellant was sentenced in open court on December 16, 2015,
the order imposing sentence was not docketed until January 6, 2016.
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Accordingly, to be timely filed, any post-sentence motion had to be
filed within ten days of imposition of Appellant’s sentence, or by
December 28, 2015.2 Pa.R.Crim.P. 720(A)(1). Here, Appellant did not file
his post-sentence motion until January 13, 2016. Post-Sentence Motion,
1/13/16. Thus, Appellant’s post-sentence motion was untimely filed. As the
motion was late, it did not toll Appellant’s direct appeal period.
Commonwealth v. Felmlee, 828 A.2d 1105, 1107 n.1 (Pa. Super. 2003).
In order to be timely, Appellant’s notice of appeal needed to be filed
within thirty days of the imposition of his sentence, or by January 15, 2016.
Pa.R.Crim.P. 720(A)(3). Appellant, however, did not file his notice of appeal
until February 24, 2016. Notice of Appeal, 2/24/16. Thus, Appellant’s
current appeal is untimely.3 Consequently, we lack jurisdiction to hear it.
Commonwealth v. Millisock, 873 A.2d 748, 750-751 (Pa. Super. 2005)
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2
December 26, 2015 fell on a Saturday. Accordingly, Appellant had until
December 28, 2015, to file his post-sentence motion. 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.). Commonwealth v. Green, 862 A.2d 613,
618 (Pa. Super. 2004).
3
We note that the fact that the trial court ruled on the untimely post-
sentence motion does not impact the timeliness of the appeal. See
Nahavandian, 954 A.2d 625, 629-630 (appeal period expired thirty days
from imposition of sentence regardless of court order ruling on untimely
post-sentence motion); Green, 862 A.2d at 618 (“in order for the denial of
post-sentence motions to become the triggering event [for calculating the
thirty day appeal period], it is necessary that the post-sentence
motions be timely filed.”) (emphasis in original).
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(explaining that where an untimely post-sentence motion is filed, the appeal
period is not tolled and any appeal filed after thirty days from imposition of
sentence is untimely and results in the appeal being quashed.). Lacking
jurisdiction, quashal is appropriate. See Commonwealth v. Dreves, 839
A.2d 1122, 1129 (Pa. Super. 2003) (quashing untimely appeal for lack of
jurisdiction).
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
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