Com. v. Swaby, C.

• Court: Superior Court of Pennsylvania
• Decided: May 30, 2024
• Docket: 1189 EDA 2023
• Status: Unpublished

Opinion

J-S04007-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLEMENT BARRINGTON SWABY : : Appellant : No. 1189 EDA 2023

Appeal from the Judgment of Sentence Entered March 15, 2023 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0001319-2021, CP-48-CR-0002065-2021, CP-48-CR-0002793-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLEMENT BARRINGTON SWABY : : Appellant : No. 1190 EDA 2023

Appeal from the Judgment of Sentence Entered March 15, 2023 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0001319-2021, CP-48-CR-0002065-2021, CP-48-CR-0002793-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLEMENT BARRINGTON SWABY : : Appellant : No. 1191 EDA 2023 J-S04007-24

Appeal from the Judgment of Sentence Entered March 15, 2023 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0001319-2021, CP-48-CR-0002065-2021, CP-48-CR-0002793-2021

BEFORE: BOWES, J., STABILE, J., and LANE, J.

MEMORANDUM BY BOWES, J.: FILED MAY 30, 2024

Clement Barrington Swaby appeals from the aggregate judgments of

sentence of seventy-five to 150 years of imprisonment, followed by twelve

years of probation, imposed upon his convictions of, inter alia, rape and

involuntary deviate sexual intercourse. We quash the appeals as untimely.

Given our disposition, we need not provide a detailed recitation of the

history of these matters. It is sufficient to recount that Appellant was charged

with numerous offenses in three separate cases involving multiple home

invasions, wherein he either sexually assaulted the victims or attempted to do

so. Following a consolidated trial, a jury convicted Appellant of twenty-five

crimes. At a hearing on March 15, 2023, the trial court found Appellant to be

a sexually violent predator, and then imposed the aggregate sentence

indicated hereinabove.

Appellant filed a motion for reconsideration of sentence in each case,

which the court denied on March 20, 2023. The dockets and the certified

records for each matter reflect that the orders denying the motion properly

informed Appellant of his right to file an appeal within thirty days and were

each served and docketed on that same date pursuant to Pa.R.Crim.P. 114(C)

(providing that docket entries must be promptly made and contain the date

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of receipt of the order, the date appearing on the order, and the date of

service). Accordingly, the last day for filing a timely notice of appeal was

Wednesday, April 19, 2023. See Pa.R.A.P. 903(a) (establishing that a notice

of appeal must be filed within thirty days of the date of entry of the order from

which the appeal is taken). Here, Appellant’s three counseled notices of

appeal were received and docketed by the clerk’s office on Thursday, April 20,

2023. This Court independently consolidated the appeals.

Preliminarily, we must address the timeliness of the notices of appeal.

See Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa.Super. 2015)

(“We lack jurisdiction to consider untimely appeals, and we may raise such

jurisdictional issues sua sponte.”). This Court has stated that “[b]ecause this

filing period is jurisdictional in nature, it must be strictly construed and may

not be extended as a matter of indulgence or grace.” Commonwealth v.

Gaines, 127 A.3d 15, 17 (Pa.Super. 2015) (en banc) (citation omitted).

“Thus, an appellant’s failure to appeal timely an order generally divests the

appellate court of its jurisdiction to hear the appeal.” Commonwealth v.

Williams, 106 A.3d 583, 587 (Pa. 2014) (citations omitted).

Except when an appellant is incarcerated and proceeding pro se, a notice

of appeal is filed when it is received by the clerk of courts, not when it is

deposited in the mail. See Pa.R.A.P. 905(a)(3) (“Upon receipt of the notice

of appeal, the clerk shall immediately stamp it with the date of receipt, and

that date shall constitute the date when the appeal was taken, which date

shall be shown on the docket.”). As noted above, since Appellant’s counseled

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notices of appeal were received on April 20, 2023, they are deemed to be filed

on that date. Thus, the record is clear that the appeals were filed thirty-one

days after entry of the order denying Appellant’s motions for reconsideration

of sentence, and therefore were not timely filed.

Further, Appellant does not assert, nor have we uncovered, anything

apparent from the certified records that would excuse the late filings. Cf.

Commonwealth v. Patterson, 940 A.2d 498, 499 (Pa.Super. 2007)

(concluding that the trial court’s order denying a post-sentence motion did not

comply with Pa.R.Crim.P. 720, which constituted a “court breakdown” that

permitted this Court to consider Patterson’s untimely appeal). We are

therefore constrained to quash these untimely appeals for lack of jurisdiction.

Appeals quashed.

Date: 5/30/2024

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