Com. v. Smith, C.

Superior Court of Pennsylvania

Com. v. Smith, C.

DecidedJuly 26, 2023

Docket1454 EDA 2022

StatusUnpublished

This text of Com. v. Smith, C. (Com. v. Smith, C.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Smith, C., (Pa. Ct. App. 2023).

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Opinion

J-A12025-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CURTIS SMITH : : Appellant : No. 1454 EDA 2022

Appeal from the Judgment of Sentence Entered April 14, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006209-2021

BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY NICHOLS, J.: FILED JULY 26, 2023

Appellant Curtis Smith appeals from the judgment of sentence entered

following his convictions for possession of an instrument of crime (PIC) and

related offenses. On appeal, Appellant challenges the weight of the evidence

and the discretionary aspects of his sentence. After careful review, we quash.

The facts and procedural history of this case are well known to the

parties. See Trial Ct. Op., 7/28/22, at 2-4. Briefly, Appellant was charged

with PIC, possession of a firearm prohibited, firearms not to be carried without

a license, carrying firearms in public in Philadelphia, terroristic threats, simple

assault, and recklessly endangering another person1 based on an incident that

occurred on June 25, 2021. Following a bench trial on January 5, 2022,

Appellant was convicted of all charges. On April 14, 2022, the trial court ____________________________________________

1 18 Pa.C.S. §§ 907(a), 6105(a)(1), 6106(a)(1), 6108, 2706(a)(1), 2701(a),

and 2705, respectively. J-A12025-23

imposed an aggregate sentence of five and one-half to eleven years’

incarceration.

The trial court did not docket any additional filings by Appellant during

the ten-day period following sentencing. However, the trial court issued an

order on April 29, 2022, scheduling a hearing on Appellant’s motion for

reconsideration for May 2, 2022. At the outset of the hearing, the trial court

acknowledged having received a copy of Appellant’s motion for

reconsideration. N.T. Hr’g, 5/2/22, at 5. The trial court was initially unable

to locate a copy of the motion; apparently, however, a copy was ultimately

produced for the trial court at the hearing. Id. Further, it is not clear on this

record who produced the copy and whether the motion was filed with the clerk

of courts. Id. Trial counsel waived Appellant’s presence, then explained that

he filed a motion for reconsideration of sentence at Appellant’s request. Id.

at 4-6. Specifically, trial counsel requested “a lesser sentence for [Appellant]

based on information that was provided at sentencing” and argued that “the

sentence was excessive in light of the facts of the case.” Id. at 6. Ultimately,

the trial court denied Appellant’s motion. Id. at 8; see also Trial Ct. Order,

5/2/22.

After the trial court denied Appellant’s motion, trial counsel requested

leave to withdraw from Appellant’s case and asked that the trial court appoint

new counsel on Appellant’s behalf. Trial counsel explained that although he

had filed the motion for reconsideration to preserve Appellant’s rights, he had

not been retained for appeal. Id. at 8-10. After trial counsel indicated that

-2- J-A12025-23

Appellant had expressed his desire to file an appeal, the trial court granted

trial counsel’s request and agreed to appoint new counsel on Appellant’s

behalf. Id. at 10.

Appellant subsequently filed a counseled notice of appeal on May 25,

2022. Appellant filed a court-ordered concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b), and the trial court filed an opinion

addressing Appellant’s claims.

On July 5, 2022, this Court issued a rule to show cause as to why the

instant appeal should not be quashed as untimely. Specifically, this Court

noted that although Appellant was sentenced on April 14, 2022, his notice of

appeal was not docketed until May 25, 2022. Appellant filed a response

stating that he filed a timely notice of appeal after the trial court denied his

post-sentence motion on May 2, 2022. See Appellant’s Resp. to Rule to Show

Cause, 7/10/22, at 4. This Court subsequently entered an order discharging

the rule to show cause and deferring the issue to the merits panel.

Initially, we must first determine whether we have jurisdiction over this

appeal. See Commonwealth v. Horn, 172 A.3d 1133, 1135 (Pa. Super.

2017) (stating that appellate courts may consider the issue of jurisdiction sua

sponte). “Jurisdiction is vested in the Superior Court upon the filing of a timely

notice of appeal.” Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super.

2004) (en banc) (citation omitted). “In a criminal case in which no post-

sentence motion has been filed, the notice of appeal shall be filed within 30

-3- J-A12025-23

days of the imposition of the judgment of sentence in open court.” Pa.R.A.P.

903(c)(3).

“[T]he time for filing an appeal can be extended beyond [thirty] days

after the imposition of sentence only if the defendant files a timely post-

sentence motion.” Green, 862 A.2d at 618; see also Pa.R.Crim.P. 720(A)(2)

(stating a notice of appeal shall be filed within thirty days of the post-sentence

motion being denied or withdrawn). Further, Pa.R.Crim.P. 720(A)(1) requires

that written post-sentence motions be filed within ten days of the imposition

of sentence. It is well settled that untimely post-sentence motions do not toll

the thirty-day appeal period. See Green, 862 A.2d at 618.2

____________________________________________

2 Rule 720 of the Pennsylvania Rules of Criminal Procedure provides, in relevant part, as follows:

(A) Timing.

(1) Except as provided in paragraphs (C) and (D), a written post- sentence motion shall be filed no later than 10 days after imposition of sentence.

(2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed:

(a) within 30 days of the entry of the order deciding the motion;

(b) within 30 days of the entry of the order denying the motion by operation of law in cases in which the judge fails to decide the motion; or

(c) within 30 days of the entry of the order memorializing the withdrawal in cases in which the defendant withdraws the motion.

Pa.R.Crim.P. 720(A)(1)-(2).

-4- J-A12025-23

This Court held that “as an appellate court, our review is limited by the

contents of the certified record.” Commonwealth v. Walker, 878 A.2d 887,

888 (Pa. Super. 2005) (citations omitted); see also Pa.R.A.P. 1921. In

Walker, the defendant filed a notice of appeal after his post-sentence motions

were denied by operation of law. Walker, 878 A.2d at 887-88. Neither the

defendant’s post-sentence motions, nor the order denying them, appeared on

the trial court docket or in the certified record. Id. at 888. The defendant did

not provide this Court with any evidence that the defendant’s post-sentence

motions or the order denying them were ever filed with the clerk of courts.

Id. On appeal, this Court explained:

[A]lthough [the defendant] and the trial court indicate that timely post-sentence motions were filed, these motions and the order denying them do not appear in either the certified record or on the docket.

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