Com. v. Rose R.

• Court: Superior Court of Pennsylvania
• Decided: July 19, 2024
• Docket: 10 WDA 2024
• Status: Unpublished

Opinion

J-S24013-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICHARD KENTON ROSE : : Appellant : No. 10 WDA 2024

Appeal from the Judgment of Sentence Entered September 21, 2023 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-SA-0000153-2023

BEFORE: BOWES, J., SULLIVAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED: July 19, 2024

Richard Kenton Rose appeals from the $300 fine imposed following his

conviction for one count of summary disorderly conduct. We quash the appeal

as untimely.

Given our disposition, we need not recount the history of this matter at

length. It suffices to state that Appellant was charged with one count of

disorderly conduct relating to a verbal altercation he had with an employee of

the Westmoreland County Domestic Relations Section and several sheriff’s

deputies. A magisterial district judge found Appellant guilty, and he filed a

pro se appeal. Following a de novo summary trial held on September 27,

2023, the trial court likewise found Appellant guilty and sentenced him to pay

the fine indicated hereinabove, as well as the costs of prosecution. Six days

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* Former Justice specially assigned to the Superior Court. J-S24013-24

later, Appellant filed a “Motion to Reconsider and Motion to Strike.” The trial

court filed a document entitled “Notice of Motion for Reconsideration,” which

did not expressly grant reconsideration but did schedule a hearing for

November 28, 2023, which was beyond the time for Appellant to file a timely

appeal to this Court. Appellant did not file a notice of appeal in the interim.

Both Appellant and the Commonwealth appeared for the hearing,

though neither presented any additional testimony or evidence. The court

denied Appellant’s ultimate request for relief from the bench, thereby

upholding the conviction. Thereafter, it informed Appellant that he had the

right to file an appeal within thirty days, on the belief that it had previously

granted reconsideration. See N.T., 11/28/23, at 33, 35. The court entered a

written order later that same day memorializing its denial of the motion, also

indicating in handwriting: “Appeal rights given.” Order of Court/Summary

Appeal, 11/28/23.

Appellant filed a pro se notice of appeal on December 28, 2023. The

court ordered Appellant to file and serve a Pa.R.A.P. 1925(b) statement, which

Appellant timely filed but did not serve on the trial court. The trial court then

issued a Rule 1925(a) opinion, stating that Appellant’s issues should be

deemed waived for his failure to comply with Rule 1925. In the alternative,

the court agreed with Appellant’s contention that the evidence was legally

insufficient to support his disorderly conduct conviction.

This Court issued a rule to show cause as to why the appeal should not

be quashed as untimely, noting that the appeal was filed more than thirty

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days from the imposition of sentence. Appellant responded, claiming that his

“post-trial motions were timely filed,” which he claims “reset or stayed the

judgement [sic] and sentence[.]” Answer to Rule to Show Cause, 2/29/24, at

¶ 5. We discharged the rule and ordered that the matter would be deferred

to panel review.

Appellant raises eleven issues in this appeal. However, we must first

address its timeliness. We have held that “[t]he timeliness of an appeal and

compliance with the statutory provisions granting the right to appeal implicate

an appellate court’s jurisdiction and its competency to act, and absent

extraordinary circumstances, an appellate court lacks the power to extend the

time provided for taking an appeal.” Commonwealth v. Powell, 290 A.3d

751, 755 n.8 (Pa.Super. 2023) (cleaned up). Therefore, “one’s failure to

appeal timely from an order generally divests the appellate court of its

jurisdiction to hear the appeal.” Id. (citation omitted).

Pursuant to Rule 903, a notice of appeal “shall be filed within [thirty]

days after the entry of the order from which the appeal is taken.” Pa.R.A.P.

903(a). We note that “[t]here 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.A.P. 720(D).

Additionally, the following principles apply when, as here, the appellant

filed a motion for reconsideration of his sentence following a summary trial:

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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. Rather, the trial court must expressly grant reconsideration within thirty days of entry of its order. 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. Therefore, . . . 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 [thirty] days, or it denies the petition. Moreover, we have consistently held that an appeal from an order denying reconsideration is improper and untimely.

Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa.Super. 2000) (emphasis

added).

Here, after Appellant filed his motion to reconsider, the trial court

entered a notice that scheduled a hearing. The court did not expressly grant

reconsideration at any point in time, let alone within thirty days of entry of

the judgment against Appellant. On the contrary, the court ultimately denied

the motion on November 28, 2023, well after expiration of the appeal period.

It therefore lost power to act on the motion, regardless of the fact that it

purported to preserve Appellant’s appeal rights at the hearing and in its

corresponding written order. See Moir, 766 A.2d at 1254 (holding that the

trial court lacked jurisdiction to take action upon a motion to reconsider when

it did not rule on the motion until denying it more than thirty days after entry

of the final appealable order.)

Further, it is of no consequence that in his response to our rule to show

cause, Appellant contends that his motion to reconsider was actually a “post-

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sentence motion” that tolled the appeal period. Our procedural rules are clear

that such a motion may not be filed following a summary conviction. See

Pa.R.Crim.P. 720(D) (“There shall be no post-sentence motion in summary

case appeals following a trial de novo in the court of common pleas.”).

Based on the above, we hereby quash Appellant’s appeal as untimely.

Appeal quashed.

DATE: 7/19/2024

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