Com. v. Weary, J.

J-S68021-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JANET WEARY
Appellant No. 3489 EDA 2013
Appeal from the Judgment of Sentence May 25, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008915-2008
BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 05, 2014
Appellant Janet Weary contends in this direct appeal that her
aggregate sentence of 23-46 years’ imprisonment for third degree murder
and conspiracy to commit murder is excessive.
We remand for further proceedings. The record is unclear as to
whether Appellant filed timely post-sentence motions. A remand is
necessary for the trial court to resolve this question, because the answer will
determine whether we have jurisdiction to decide this appeal. If Appellant
filed timely post-sentence motions, then we must quash this appeal as
premature due to the lack of any order deciding the motions. If Appellant
did not file post-sentence motions, her appeal is timely, and we will have
jurisdiction to decide this appeal.
J-S68021-14
Appellant and her brother, Rufus Weary, were charged as co-
defendants with murder1, attempted murder2, conspiracy3, and reckless
endangerment4 in connection with the shooting death of David McCoy on
November 1, 2007. While working as a drug dealer in the area of Harrison
and Tackawana Streets in Philadelphia, Appellant told Rufus, also a drug
dealer, that another drug dealer, Alan Reeder, was selling drugs at the same
location. Appellant pointed out Reeder to Rufus Weary and McCoy. A
gunfight ensued during which Rufus Weary shot and killed McCoy. The
Commonwealth prosecuted Appellant and Rufus Weary for murder on a
theory of transferred intent. N.T., 5/25/12, p. 12 (sentencing transcript).
Appellant and Rufus Weary were tried together in July 2009, but the
court declared a mistrial in the middle of trial5. Prior to retrial, on May 5,
2010, Appellant pled guilty to third degree murder and conspiracy and
agreed to testify at retrial against Rufus Weary. N.T., 5/25/12, p. 4 6.
During jury selection in Rufus Weary's May 2012 retrial, Appellant filed a pro
se motion for permission to withdraw her guilty plea. Id., p. 12. The court
denied the motion. Id., p. 13. Appellant was called to testify as a
Commonwealth witness at Rufus Weary's trial, but she did not testify
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1
18 Pa. C.S. § 2502.
2
18 Pa. C.S. § 903.
3
18 Pa. C.S. § 907.
4
18 Pa. C.S. § 2705.
5
The certified record does not include the July 2009 trial transcript.
6
The certified record does not include the May 5, 2010 guilty plea transcript.
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consistent with the Commonwealth's expectations. Id., pp. 12-15. Instead,
she proclaimed her innocence and insisted that Rufus Weary did not shoot
McCoy. Id., pp. 13-14.
On May 25, 2012, the court sentenced Appellant to consecutive
sentences of 15-30 years’ imprisonment for third degree murder and 8-16
years’ imprisonment for conspiracy, an aggregate of 23-46 years’
imprisonment. Id., pp. 17-18.
It is unclear whether Appellant filed post-sentence motions. The trial
court states in its Pa.R.A.P. 1925(a) opinion that trial counsel filed timely
post-sentence motions on May 29, 2012. Trial Court opinion, p. 3 n. 8. No
post-sentence motions, however, are in the certified record. Nor is there
any order in the record granting or denying post-sentence motions. Nor
does the trial court docket state that Appellant filed post-sentence motions
or that the court decided the motions.
On June 22, 2012, Appellant filed a notice of appeal to this Court. She
subsequently filed a Pa.R.A.P. 1925(b) statement in which she raised two
issues: an objection to the trial court’s refusal to permit her to withdraw her
guilty plea prior to Rufus Weary’s retrial7, and an objection to the length of
her sentence. Appellant articulated the latter issue as follows:
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7
Appellant did not present any argument on this issue in her brief on
appeal.
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The trial court abused its discretion by imposing an
aggregate sentence of 23 to 46 years on the charges
of third degree murder and conspiracy to commit
third degree murder in that the sentence was
excessive and therefore unreasonable under the
totality of the circumstances even though the
sentences were within the guidelines range for each
offense.
Brief For Appellant, p. 14.
At this juncture, we will not address this appeal on the merits.
Because we are not sure that Appellant filed timely post-sentence motions,
we are uncertain as to whether this appeal is timely. We explain briefly
below.
When a criminal defendant files timely post-sentence motions8, as the
trial court says Appellant did here, the Rules of Criminal Procedure provide
120 days for the trial court to review the motions (“review period”).
Pa.R.Crim.P. 720(B)(3)(a)9. If the court decides the motions during the
review period, the defendant’s appeal period begins running when the Clerk
of Court enters the order deciding the motion. If the court fails to decide the
motion within the review period, the motion is deemed denied, and the
appeal period begins running when the Clerk of Court enters an order
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8
See Pa.R.Crim.P. 720(A)(1) (except in circumstances not relevant here,
defendant must file written post-sentence motions no later than 10 days
after imposition of sentence).
9
During the review period, the court may, for good cause shown, grant one
30-day extension for additional review. Pa.R.Crim.P. 720(B)(3)(b).
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denying the motion by operation of law. Pa.R.Crim.P. 720(A)(2)(b) &
(B)(3)(b).
An appeal filed during the review period, but before disposition of
timely post-sentence motions, should be quashed as premature.
Commonwealth v. Claffey, 80 A.3d 780, 783 (Pa.Super.2013)10. On the
other hand, when the defendant does not file post-sentence motions, or if
she files untimely post-sentence motions, the judgment of sentence is final
and appealable as of the date of sentencing, and she must appeal within
thirty days after sentencing. Id. at 783 n. 1.
As we observed above, we are uncertain as to whether Appellant filed
timely post-sentence motions. If she filed timely post-sentence motions, her
appeal on June 22, 2012 -- long before expiration of the review period –
must be quashed as premature. Claffey, supra. If she did not file timely
post-sentence motions, her June 22, 2012 appeal is timely, and we may
exercise jurisdiction over it.
To resolve whether Appellant’s appeal is premature or timely, we
remand this case to the trial court, and we instruct as follows:
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10
One exception to this rule occurs when (1) within 120 days after filing
timely post-sentence motions, the defendant files an appeal, (2) she
withdraws her post-sentence motions, and (3) the trial court enters an order
memorializing the withdrawal of post-sentence motions. In these limited
circumstances, we will entertain the appeal as having been filed on the date
of entry of the memorialization order. Claffey, supra.
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(1) If the trial court determines that Appellant filed timely post-
sentence motions, the trial court shall enter an order (“Order”)
(a) identifying the date Appellant filed the post-sentence
motions;
(b) explaining the disposition of said motions or denying the
motions by operation of law11; and
(c) in accordance with Pa.R.A.P. 1926(b), directing the Clerk of
Court to
(i) create a supplemental record containing the post-
sentence motions and the Order,
(ii) certify the supplemental record, and
(iii) transmit it to this Court.
(d) The Clerk of Court shall also enter the Order on the trial
court’s docket and forward the corrected docket to this Court.
(2) If the trial court determines that Appellant did not file timely post-
sentence motions, the trial court shall enter a finding of fact (“Finding”) that
Appellant did not file timely post-sentence motions and file the Finding with
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11
If Appellant filed timely post-sentence motions, her premature appeal
during the 120 day post-sentence motion review period did not toll this
review period. See Pa.R.A.P. 1701(b)(6) (trial court may proceed further in
any matter in which a non-appealable interlocutory order has been entered,
notwithstanding filing of notice of appeal). Under these circumstances, the
review period expired in late September 2012, and the post-sentence
motions must be denied by operation of law.
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the Clerk of Court. The Clerk of Court shall enter the Finding on the docket
and forward the Finding to this Court.
(3) All proceedings in the above paragraphs shall be completed within
30 days after the filing of this memorandum.
(4) Upon the completion of these steps, this Court will determine
whether to quash this appeal or exercise jurisdiction over it12.
Case remanded for further proceedings in accordance with this
memorandum. Jurisdiction retained13.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2014
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12
If the trial court enters the Order defined above, we will likely quash the
June 22, 2012 appeal. Thus, Appellant should consider filing a new notice of
appeal within 30 days after the docketing of the Order.
13
We do not use the term “jurisdiction retained” to suggest that we
ultimately will decide that we have jurisdiction over this appeal. We merely
use this term to signify that we continue to retain this appeal on our docket
pending our decision as to whether we actually have jurisdiction.
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