Com. v. Hollingsworth, V.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
VICTOR HOLLINGSWORTH, : No. 642 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, July 18, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0013796-2012
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 25, 2016
Victor Hollingsworth appeals from the July 18, 2014 judgment of
sentence of the Court of Common Pleas of Philadelphia County following his
conviction of robbery and criminal conspiracy to commit robbery.1 We quash
the appeal as untimely.
A jury convicted appellant on May 15, 2014. On July 18, 2014, the
trial court sentenced appellant to an aggregate term of 69 to 180 months’
imprisonment. Appellant filed a post-sentence motion on July 28, 2014,
which was denied by the trial court on December 29, 2014. On
December 31, 2014, appellant filed a motion to reconsider, for which the
trial court granted a hearing. The trial court held a hearing and denied
1
18 Pa.C.S.A. §§ 3701 and 903, respectively.
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appellant’s motion on February 5, 2015. Appellant filed a notice of appeal
on February 6, 2015. On February 12, 2015, the trial court ordered
appellant to produce a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and appellant complied with the trial court’s
order on February 27, 2015. On June 25, 2015, the trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a). This court, on March 30, 2015,
issued a rule to show cause instructing appellant to show cause why the
instant appeal should not be quashed as untimely. Appellant responded on
April 7, 2015. On May 5, 2015, this court issued an order discharging the
rule to show cause, deferring the issue to this panel.
Appellant raises the following issues for our review:
1. Was the evidence sufficient as a matter of law
to convict [appellant] of taking property from
the complainant either by force or by threat of
force, or of being a member of a conspiracy to
take property from the complainant either by
force or by threat of force?
2. Was the verdict against the weight of the
evidence?
Appellant’s brief at 5.
Before we can consider appellant’s issues on the merits, we must first
determine whether we have jurisdiction to do so. While neither party raised
a jurisdictional issue, we may review jurisdiction sua sponte.
Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa.Super. 2007), citing
Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa.Super. 2001).
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It is well-settled that, upon the filing of a motion for
reconsideration, a trial court's action in granting a
rule to show cause and setting a hearing date is
insufficient to toll the appeal period. Valentine v.
Wroten, 397 Pa.Super. 526, 580 A.2d 757 (1990).
Rather, the trial court must expressly grant
reconsideration within thirty days of entry of its
order. Pa.R.A.P. 1701. “Failure to ‘expressly’ grant
reconsideration within the time set by the rules for
filing an appeal will cause the trial court to lose its
power to act on the application for reconsideration.”
Schoff v. Richter, 386 Pa.Super. 289, 562 A.2d
912, 913 (1989); Cheathem v. Temple University
Hospital, 743 A.2d 518 (Pa.Super. 1999).
“Therefore, as the comment to Pa.R.A.P. 1701
explains, although a party may petition the court for
reconsideration, the simultaneous filing of a notice of
appeal is necessary to preserve appellate rights in
the event that either the trial court fails to grant the
petition expressly within 30 days, or it denies the
petition.” [Valley Forge Center v. Rib It/K.P.,
Inc., 693 A.2d 242, 245 (Pa.Super. 1997)].
Moreover, we have consistently held that an appeal
from an order denying reconsideration is improper
and untimely. Valentine, supra.
Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa.Super. 2000).
Here, in response to this court’s order to show cause, appellant’s
counsel avers that when denying the post-sentence motions on
December 29, 2014, the trial court told him that a hearing would be granted
upon the filing of a “Motion for Reconsideration of the Denial of
Post-Sentence Motions.” The Commonwealth did not respond to our rule to
show cause, nor did it raise any objection to the timeliness of the instant
appeal.
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“[I]n similar situations, we have declined to quash the appeal
recognizing that the problem arose as a result of the trial court’s
misstatement of the appeal period, which operated as a breakdown in the
court’s operation.” Coolbaugh, 770 A.2d at 791, citing Commonwealth v.
Anwyll, 482 A.2d 656, 657 (Pa.Super. 1984) (“finding that although appeal
was untimely, where defendant’s failure to appeal on time appeared to be
the result of a breakdown in operation of trial court, which gave erroneous
information as to appeal period, appeal would not be quashed as untimely
but would be regarded as though filed nunc pro tunc and considered on the
merits”).
The record in the instant case does not indicate that the trial court
provided erroneous information to appellant’s counsel regarding the appeal
period, nor does the record indicate that a breakdown in the court’s
operation took place. As noted by the Moir court, setting a hearing date for
a motion to reconsider is not sufficient to toll the period to file a notice of
appeal. We, therefore, quash the instant appeal as untimely.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/2016
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