Com. v. Kelly, K.

• Court: Superior Court of Pennsylvania
• Decided: April 24, 2017
• Docket: Com. v. Kelly, K. No. 2102 EDA 2016
• Status: Unpublished

Opinion

J-S27037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

KATRINA S. KELLY,

Appellant No. 2102 EDA 2016

Appeal from the Judgment of Sentence May 23, 2016 in the Court of Common Pleas of Lehigh County Criminal Division at No.: CP-39-SA-0000035-2016

BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

JUDGMENT ORDER BY PLATT, J.: FILED APRIL 24, 2017

Appellant, Katrina S. Kelly, appeals from the judgment of sentence

entered following her conviction at a trial de novo for the summary offense

of harassment.1 We dismiss.

The relevant facts and procedural history of this case are as follows.

On January 19, 2016, a magisterial district judge convicted Appellant of

harassment following a summary trial. The judge sentenced her to a term of

ninety days’ probation, and ordered her to have no contact with the victim, a

neighbor. On January 26, 2016, Appellant filed a notice of appeal in the

Lehigh County Court of Common Peas.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. § 2709(a)(3). J-S27037-17

On May 23, 2016, the trial court held a summary appeal hearing. At

the conclusion of the hearing, the court found Appellant guilty of harassment

and re-imposed the original sentence of ninety days’ probation, and no

contact with the victim. On June 2, 2016, Appellant filed a post-sentence

motion, which the trial court denied on June 15, 2016. Appellant filed a

notice of appeal on June 30, 2016.2

On appeal, Appellant challenges the weight and sufficiency of the

evidence supporting her conviction. (See Appellant’s Brief, at 16-30).

However, as a preliminary matter, we must consider the propriety of this

appeal. The trial court and the Commonwealth maintain that this appeal

should be dismissed as untimely. (See Trial Court Opinion, 10/24/16, at 5-

8; Commonwealth’s Brief, at 7-8). Upon review, we agree.

The timeliness of an appeal implicates our jurisdiction, which “is vested

in [this] Court upon the filing of a timely notice of appeal.”

Commonwealth v. Nahavandian, 954 A.2d 625, 629 (Pa. Super. 2008)

(citation omitted). “[P]ursuant to Pa.R.Crim.P. 720(D), a defendant in a

summary appeal case is not permitted to file post-sentence motions.”

Commonwealth v. Dixon, 66 A.3d 794, 797 (Pa. Super. 2013). Rule 720

provides, in pertinent part: ____________________________________________

2 Appellant filed a timely court-ordered concise statement of errors complained of on appeal on August 3, 2016. See Pa.R.A.P. 1925(b). The trial court entered a Rule 1925(a) statement on October 24, 2016. See Pa.R.A.P. 1925(a).

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(D) Summary Case Appeals. There shall be no post-sentence motion in summary case appeals following a trial de novo in the court of common pleas. The imposition of sentence immediately following a determination of guilt at the conclusion of the trial de novo shall constitute a final order for purposes of appeal.

Pa.R.Crim.P. 720(D) (emphasis added). Thus, under the plain language of

the rule, “[t]he time for appeal in summary cases following a trial de novo

runs from the imposition of sentence.” Id., comment (emphasis

added).

Here, because Appellant was not permitted to file a post-sentence

motion in this summary case appeal, the appeal period began to run from

the date her sentence was imposed, May 23, 2016. The filing of a motion

for reconsideration of sentence in this context will not toll the thirty-day

appeal period. Therefore, her notice of appeal, filed more than thirty days

later, was untimely. See Pa.R.A.P. 903(a). Accordingly, we dismiss this

appeal.3

Appeal dismissed.

3 We note that Appellant’s reliance on Commonwealth v. Dougherty, 679 A.2d 779 (Pa. Super. 1996), is misplaced, where the appellant in that case filed a timely notice of appeal within thirty days of the judgment of sentence and properly filed no post-sentence motions in the summary case appeal. See Dougherty, supra at 781; (see also Appellant’s Brief, at 14).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/24/2017

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