Com. v. Page, S.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

SAMUEL EUGENE PAGE :

:

Appellant : No. 833 MDA 2022

Appeal FROM the Judgment of Sentence Entered December 21, 2021 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001029-2020

BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY OLSON, J.: FILED: MARCH 29, 2023

Appellant, Samuel Eugene Page, appeals from the judgment of sentence

entered on December 21, 2021, following his jury trial convictions for

aggravated indecent assault, indecent exposure, unlawful contact with a

minor, endangering the welfare of a child, corruption of a minor, and two

counts each of involuntary deviate sexual intercourse with a child, indecent

assault with a complainant less than 13 years of age, and incest with a minor.1

Because this appeal is untimely, this Court lacks jurisdiction to consider it.

Thus, we quash.

We briefly summarize the facts and procedural history of this case as

follows. On July 13, 2020, Lycoming County Children and Youth Services

(CYS) received a report of that a six-year-old girl had been sexually abused.

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1 18 Pa.C.S.A. §§ 3125(a)(7), 3127(a), 6318(a)(1), 4304(a)(1), 6301(a)(1)(ii), 3123(b), 3126(a)(7), and 4302(b)(1), respectively.

While giving the victim a bath, the child’s maternal grandmother reported that

she noticed a large rash on the child’s thigh near her genitals. The victim

informed her maternal grandmother and step-grandfather that Appellant, the

victim’s father, engaged in various types of sexual abuse with her including

touching her genitals with his hands and his mouth, coercing her to touch his

penis, engaging her in masturbatory motions, and convincing her to perform

oral sex upon him. The victim stated that sometimes Appellant would put “a

balloon” on his “thing.” A CYS caseworker interviewed the child the following

day and the victim physically demonstrated the abuse she suffered.

Furthermore, after the abuse was reported, the victim’s mother found

strawberry-flavored lubricant and condoms in the bedroom she shared with

Appellant. The victim’s mother adamantly denied that she used such items or

knew about them.

A two-day jury trial commenced September 16, 2021. At trial, maternal

grandmother, maternal step-grandfather, the CYS caseworker, the victim, the

victim’s mother, and the investigating police officer testified for the

Commonwealth. Appellant and his father-in-law, the victim’s biological

maternal grandfather, testified for the defense. Ultimately, the jury convicted

Appellant of the aforementioned crimes. On December 21, 2021, the trial

court sentenced Appellant to an aggregate term of 52 to 107 years of

imprisonment and designated Appellant as a sexually violent predator. On

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January 3, 2022, Appellant filed a timely post-sentence motion.2 The trial

court held a hearing on Appellant’s post-sentence motion on March 15, 2022.

By order and accompanying opinion entered on May 2, 2022, the trial court

denied post-sentence relief. Appellant filed a notice of appeal on June 2, 2022.

Before reaching the issues Appellant raises on appeal, we must first

determine whether Appellant timely filed his notice of appeal in order to

establish our jurisdiction to dispose of this matter. See Commonwealth v.

Cooper, 710 A.2d 76, 78 (Pa. Super. 1998) (holding this Court must address

timeliness of appeal sua sponte because it implicates our jurisdiction). For

this Court to have jurisdiction, Appellant’s notice of appeal must have been

filed within 30 days of the denial of his post-sentence motion. See

Pa.R.Crim.P. 720(2)(a) (“if the defendant files a timely post-sentence motion,

the notice of appeal shall be filed within 30 days of the entry of the order

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2 We note that a post-sentence motion must be filed within 10 days of the imposition of judgment of sentence. See Pa.R.Crim.P. 720. As such, Appellant was required to file his post-sentence motion by Friday, December 31, 2021. When the final day for filing falls on a Saturday, Sunday or a federal holiday, however, that day is omitted from the computation. See 1 Pa.C.S.A. § 1908 (“Whenever the last day of any such period shall fall on 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.”). “New Year’s Day, January 1” is a “legal public holiday.” See 5 U.S.C.A. § 6103(a). However, when the federal holiday “occurs on a Saturday, the Friday immediately before is a legal public holiday[.]” 5 U.S.C.A. § 6103(b)(1). Here, because New Year’s Day 2022, or January 1, 2022, fell on a Saturday, the preceding Friday, December 31, 2021, was the official federal holiday, so it is omitted from computation. Likewise, we do not include Saturday or Sunday in the computation either. Accordingly, Appellant’s post-sentence motion filed on Monday, January 3, 2022 was timely.

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deciding the motion”) (internal capitalization and punctuation omitted); see

also Pa.R.A.P. 903(a) (filing of notice of appeal shall occur within 30 days of

entry of final and appealable order); Cooper, 710 A.2d at 78 (the court lacks

jurisdiction if notice of appeal is not timely filed).

Pursuant to Pennsylvania Rule of Criminal Procedure 114, an order is

properly entered on the docket when the entry for the order indicates “(a) the

date of receipt in the clerk's office of the order or court notice; (b) the date

appearing on the order or court notice; and (c) the date of service of the order

or court notice.” Pa.R.Crim.P. 114(C)(2). The thirty-day period for appealing

from a criminal order other than a judgment of sentence begins to run on the

day that the order is served on the parties by the clerk of courts. See

Pa.R.A.P. 108(a)(1) and (d). Service may be accomplished by “sending a copy

by facsimile transmission or other electronic means if the party's attorney, or

the party if unrepresented, has filed a written request for this method of

service[.]” Pa.R.Crim.P. 114(B)(3)(a)(vi). “A party's attorney, or the party if

unrepresented, may request to receive service of court orders or notices

pursuant to [Rule 114] by facsimile transmission or other electronic means

by[:] (i) filing a written request for this method of service in the case or

including a facsimile number or an electronic address on a prior legal paper

filed in the case; or (ii) filing a written request for this method of service to

be performed in all cases, specifying a facsimile number or an electronic

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address to which these orders and notices may be sent.”

Pa.R.Crim.P.114(B)(3)(c)(i)-(ii).3

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3 Further, the note to Rule of Criminal Procedure 114 provides, in pertinent part:

Paragraph (B)(3)(c) provides two methods for consenting to the receipt of orders and notices electronically. The first method, added to this rule in 2004, permits electronic service on a case-by-case basis with an authorization for such service required to be filed in each case. A facsimile number or an electronic address set forth on letterhead is not sufficient to authorize service by facsimile transmission or other electronic means under paragraph (B)(3)(c)(i). The authorization for service by facsimile transmission or other electronic means under this rule is valid only for the duration of the case. A separate authorization must be filed in each case the party or attorney wants to receive documents by this method of service.

The second method was added in 2010 to provide the option of entering a “blanket consent” to electronic service in all cases. It is expected that this would be utilized by those offices that work frequently in the criminal justice system, such as a district attorney's office or public defender's office, or by a judicial district that has the capability, based upon the availability of local technological resources, to accept a general request from a party to receive court orders and notices electronically. For example, a judicial district may have a system for electronically scanning documents that are stored on the courthouse computer system. In such a situation, an office that is part of the system, such as the District Attorney's Office or the Public Defender's Office, could consent to the receipt of all court orders and notices generally. As with service under paragraph (B)(3)(c)(i), a facsimile number or an electronic address set forth on letterhead is not sufficient to authorize service by facsimile transmission or other electronic means under paragraph (B)(3)(c)(ii). This consent may be rescinded as provided in paragraph (B)(3)(c).

Pa.R.Crim.P. 114, note.

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Here, our review of the docket indicates that both the Commonwealth

and defense counsel agreed to receive e-mail correspondence from the

prothonotary and provided specific e-mail addresses to the trial court.4

Furthermore, the trial court docket indicates that the order denying

post-sentence relief was filed on May 2, 2022, and the prothonotary provided

“eService” notice to the parties on the same day. Therefore, Appellant was

required to file his notice of appeal within 30 days of notice of the entry of

May 2, 2022 order, or by June 1, 2022. Because Appellant filed his notice of

appeal on June 2, 2022, it is patently untimely and we are without jurisdiction

to consider Appellant’s appeal.5 Accordingly, we quash this appeal.

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4 In fact, our review of the trial court docket reveals that the prothonotary provided Appellant’s counsel and the Commonwealth electronic notice and service in every instance during the pendency of this case. Accordingly, there is no indication that the prothonotary’s method of giving notice and service via e-mail was improper or that Appellant’s attorney objected or requested an alternative method of service.

5 Assuming we had jurisdiction, Appellant’s claims otherwise lack merit. Appellant asserts that the trial court abused its discretion by: (1) limiting the trial testimony of Richard Scott, the victim’s maternal grandfather and Appellant’s former father-in-law; and (2) imposing an excessive, aggregate sentence. Appellant’s Brief at 15. More specifically, Appellant contends the trial court erred by precluding Scott’s proffered testimony that he witnessed his daughter, Appellant’s wife, “inappropriately touch the child with her mouth and fingers” and that Appellant’s wife had made “false allegations of sexual abuse against Scott [when she was a child] that eventually were determined to be unfounded.” Id. at 20. The trial court ultimately determined the proffered testimony “revolved around smearing different witnesses’ character or raising issues that were prevalent twenty (20) to thirty (30) years ago” and, therefore, “was not relevant to the question of whether [Appellant] repeatedly sexually abused his young child.” Trial Court Opinion, 5/2/2022, at 6. Next, Appellant maintains that his overall sentence is manifestly (Footnote Continued Next Page)

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Appeal quashed for lack of jurisdiction.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/29/2023

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excessive, “essentially guarantees life imprisonment” and “is unduly harsh in light of his prior record score of zero” and that the trial court refused to consider Appellant’s rehabilitative needs because he continues to maintain his innocence. Appellant’s Brief at 29. The trial court imposed three mandatory minimum sentences and all the individual sentences were within the sentencing guidelines. Trial Court Opinion, 5/2/2022, at 7-9. The trial court also noted that Appellant showed no remorse despite “sexually abusing his daughter for at least two (2) years [leaving] her with significant trauma for the remainder of her life.” Id. at 9. The trial court noted that this case was “one of the worst cases” it had seen and believed the “sentence should reflect that.” Id. Upon review of the record and applicable law, we discern no abuse of discretion regarding either claim.