Com. v. Heindl, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SHANNON R. HEINDL,
Appellant No. 1521 WDA 2018
Appeal from the Order Entered September 19, 2018
In the Court of Common Pleas of Elk County
Criminal Division at No(s): CP-24-CR-0000172-2004
BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 05, 2019
Appellant, Shannon R. Heindl, appeals pro se from the trial court’s
September 19, 2018 order that directed the probation department to
determine if a 90-day suspension of Appellant’s monthly restitution payments
is warranted. After careful review, we are constrained to quash this appeal.
We need not detail, at great length, the facts and procedural history of
Appellant’s case. We only note that on June 22, 2005, Appellant pled guilty
to one count of bad checks, 18 Pa.C.S. § 4105(a)(1). On January 11, 2006,
she was sentenced to 7 years’ probation and $166,000 in restitution. She did
not file a direct appeal.
Over the ensuing years, Appellant apparently made monthly restitution
payments of $300. However, on April 3, 2018, the Commonwealth filed a
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* Retired Senior Judge assigned to the Superior Court.
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“Petition for Contempt of Order of Court,” alleging that she had stopped
making those required payments. A hearing was conducted on September
17, 2018, at which Appellant testified that she had a medical disability that
had hindered her ability to pay.
On September 19, 2018, the trial court entered an order stating, in
pertinent part, as follows:
After hearing, the [c]ourt finds that the amount of the [remaining
restitution] obligation is undisputed as $144,119. The last
payment was made April 18, 2016. The last payments ordered
were $300 per month. [Appellant] has presented evidence which,
if deemed credible by the probation department concerning her
health issues, shall affect the payments. If found credible, the
payments shall be suspended for a period of 90 days, after which,
if [Appellant] still claims a medical disability, she shall provide
further evidence of the same to the probation department[,] which
will review it and act upon it accordingly, and if valid, will maintain
the suspension, and if non[-]valid, will reinstate the payment.
Trial Court Order, 9/19/18 (single page).1
On October 22, 2018, Appellant filed a notice of appeal from the court’s
order. On December 4, 2018, this Court issued a rule to show cause why
Appellant’s appeal should not be quashed as being untimely filed. Appellant
responded, claiming, inter alia, that the Clerk of Courts had mailed the
September 19, 2018 order to her on September 20, 2018, and that she did
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1 While we cannot assess Appellant’s challenge to this order because, for the
reasons stated infra, we are compelled to quash her appeal, we note our
disagreement with the court’s decision to task the probation department with
making credibility determinations. “[I]t is exclusively within the province of
the trial court to determine the credibility of the witnesses and the weight to
be accorded their testimony.” Commonwealth v. Gallagher, 896 A.2d 583,
584 (Pa. Super. 2006) (citation omitted).
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not receive the order until September 28, 2018. In support, she presented a
photocopy of an envelope addressed to her and sent by the Clerk of Courts of
Elk County, which bore a postage stamp dated September 20, 2018.
In light of these circumstances, we conclude that Appellant’s notice of
appeal was timely filed. Initially, “Rule of Appellate Procedure 108(b)
designates the date of entry of an order as ‘the day on which the clerk makes
the notation in the docket that notice of entry of the order has been given as
required by Pa.R.C.P. 236(b).’” In re L.M., 923 A.2d 505, 508-09 (Pa. Super.
2007) (quoting Pa.R.A.P. 108(b) (emphasis added)). Under Rule 236, notice
of the order may be made “via United States mail and courthouse mail.”
Pa.R.C.P. 236, Note (“Methods of notice properly used by the Prothonotary
include, but are not limited to, service via United States mail and courthouse
mail.”).
Here, the docket entry for the September 19, 2018 order contains a
notation stating “(DA/Prob/Deft 9-19-18).” Even if we presume that this
vague notation indicates the date on which Appellant was purportedly notified
of the order via mail, Appellant has presented this Court with proof that the
order was not actually mailed to her until September 20, 2018. Given this
record, we will consider the September 20, 2018 date as the start of the 30-
day appeal period. See In re L.M., 923 A.2d at 509 (indicating that the
appeal period begins to run on the date that Rule 236(b) notice of the order
has been given). Because thirty days after September 20, 2018 was
Saturday, October 20, 2018, Appellant’s notice of appeal was timely filed on
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Monday, October 22, 2018. See 1 Pa.C.S. § 1908 (“When any period of time
is referred to in any statute, such period in all cases … shall be so computed
as to exclude the first and include the last day of such period. Whenever the
last day of any such period shall fall on a Saturday or Sunday, or on any day
made a legal holiday by the laws of this Commonwealth or of the United
States, such day shall be omitted from the computation.”).
However, we must still quash Appellant’s appeal from the September
19, 2018 order. Pennsylvania Rule of Appellate Procedure 341 states, in
pertinent part, that “[a] final order is any order that … disposes of all claims
and of all parties….” Pa.R.A.P. 341(b)(1). The court’s September 19, 2018
order did not dispose of the Commonwealth’s petition to hold Appellant in
contempt of court. In other words, the court did not rule on whether Appellant
had failed to pay restitution, despite her financial ability to do so. Instead,
the court directed the probation department to take further action by deciding
if Appellant’s restitution payments should be suspended for 90 days based on
her alleged inability to pay.
Because the court’s order did not rule on the Commonwealth’s petition
to hold Appellant in contempt of court but, instead, essentially instructed that
further action be taken by the probation department, the order is not final for
purposes of appeal.2
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2 If the probation department finds that Appellant is able to make her monthly
restitution payments, and she fails to do so, we stress that Appellant may not
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Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/2019
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be incarcerated for contempt until the court makes a determination that she
was able to pay the required restitution amount, but failed to do so. See 18
Pa.C.S. § 1106(f) (directing that if a defendant fails to make restitution, “the
court shall order a hearing to determine if the offender is in contempt of
court”); 18 Pa.C.S. § 1106(c)(2)(iii) (stating that the court “[s]hall not order
incarceration of a defendant for failure to pay restitution if the failure results
from the offender’s inability to pay”).
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