Com. v. Mellott, C.

• Court: Superior Court of Pennsylvania
• Decided: November 25, 2015
• Docket: 1961 WDA 2014
• Status: Unpublished

Opinion

J-S52017-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

CAROLYN LEE MELLOTT,

Appellant No. 1961 WDA 2014

Appeal from the Judgment of Sentence of September 2, 2014 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-SA-0000047-2013

BEFORE: SHOGAN, OLSON and WECHT, JJ.

JUDGMENT ORDER BY OLSON, J.: FILED NOVEMBER 25, 2015

Appellant, Carolyn Lee Mellot, appeals from the judgment of sentence

entered on September 2, 2014 in the Criminal Division of the Court of

Common Pleas of Blair County. We quash for lack of jurisdiction.

Following a Special Olympics bowling event on February 17, 2013, the

Altoona Police Department filed a criminal complaint charging Appellant with

defiant trespass, in violation of 18 Pa.C.S.A. § 3503(b)(1)(i), and disorderly

conduct, in violation of 18 Pa.C.S.A. § 5503(a)(2). Both offenses were

graded as third degree misdemeanors. At a preliminary hearing, the

Commonwealth agreed to reduce the two misdemeanor charges to non-

traffic summary citations. At the conclusion of a summary trial held before

the magistrate judge on April 17, 2013, Appellant was found guilty of both J-S52017-15

offenses. Appellant appealed her convictions to the trial court on April 24,

2013.

Appellant proceeded to a trial de novo on July 26, 2013. At the

conclusion of a bifurcated trial on September 2, 2014, the court found

Appellant guilty and directed her to pay a $150.00 fine for her disorderly

conduct conviction, together with a fine of $25.00 for her defiant trespass

conviction. Appellant filed a motion for post-sentence relief that was denied

on October 30, 2014. Thereafter, Appellant filed a notice of appeal on

November 26, 2014.

On appeal, Appellant challenges both the sufficiency and the weight of

the evidence introduced in support of her disorderly conduct and defiant

trespass convictions. Before we examine these claims, however, we address

whether Appellant has properly invoked our jurisdiction. See Com., Dept.

of Environmental Protection v. Cromwell Tp., Huntingdon County, 32

A.3d 639, 646 (Pa. 2011) (question of whether a court has jurisdiction may

be raised at any time in the course of the proceedings, including by a

reviewing court sua sponte); Commonwealth v. Burks, 102 A.3d 497, 500

(Pa. Super. 2014) (“[Superior] Court can raise the [timeliness of an appeal]

sua sponte, as the issue is one of jurisdiction to entertain the appeal.”).

Pursuant to Pa.R.Crim.P. 720(D), “[t]here shall be no post-sentence

motion in summary case appeals following a trial de novo in the court of

common pleas. Pa.R.Crim.P. 720(D). The imposition of sentence

immediately following a determination of guilty at the conclusion of the trial

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de novo shall constitute a final order for purposes of appeal.” The comment

to Rule 720 confirms that, “[t]he time for appeal in summary cases following

a trial de novo runs from the imposition of sentence.” Pa.R.Crim.P. 720,

note. Consequently, Appellant was not permitted by rule to file her

post-sentence motion, which was a nullity. More importantly, Rule 720

makes clear that the notice of appeal is due within 30 days of the judgment

of sentence, and that the filing of an impermissible post-sentence motion

does not toll that time period. See Pa.R.Crim.P. 720(A)(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[.]”).

As such, Appellant’s notice of appeal was due on or about October 2, 2014,

30 days after the judgment of sentence. Because it was not filed until

November 26, 2014, the notice of appeal was untimely, and our jurisdiction

was never properly invoked. See Pa.R.A.P. 903(c)(3) (“In a criminal case in

which no post-sentence motion has been filed, the notice of appeal shall be

filed within 30 days of the imposition of the judgment of sentence in open

court.”). In the absence of a timely notice of appeal, we must quash. See

Burks, 102 A.3d at 500 (“[Superior] Court has no jurisdiction to entertain

an untimely appeal”).

Appeal quashed for lack of jurisdiction.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/25/2015

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