Com. v. Talbert, D.

• Court: Superior Court of Pennsylvania
• Decided: September 2, 2025
• Docket: 2290 EDA 2023
• Status: Unpublished

Opinion

J-A03008-25, J-A03009-25, J-A03010-25, J-A03011-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : MRWAN MOHAMED : No. 2289 EDA 2023

Appeal from the Order Entered August 22, 2023 In the Court of Common Pleas of Montgomery County Criminal Division at No: CP-46-CR-0005838-2022

___________________________________________________________

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : DARREN TALBERT : No. 2290 EDA 2023

Appeal from the Order Entered August 22, 2023 In the Court of Common Pleas of Montgomery County Criminal Division at No: CP-46-CR-0007120-2022 ___________________________________________________________

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : MRWAN MOHAMED : No. 2407 EDA 2023 J-A03008-25, J-A03009-25, J-A03010-25, J-A03011-25

Appeal from the Order Entered August 28, 2023 In the Court of Common Pleas of Montgomery County Criminal Division at No: CP-46-CR-0005838-2022 ___________________________________________________________

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : DARREN TALBERT : No. 2408 EDA 2023

Appeal from the Order Entered August 28, 2023 In the Court of Common Pleas of Montgomery County Criminal Division at No: CP-46-CR-0007120-2022

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

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 2, 2025

The Commonwealth appeals in the above-captioned cases from orders

transferring venue from Montgomery County to Philadelphia County. We

consolidate these appeals pursuant to Pa.R.A.P. 513, and we quash all appeals

as untimely.

Appellees, Mrwan Mohamed and Darren Talbert, were charged as

participants in a drug operation encompassing both Montgomery and

Philadelphia Counties. Citing Pa.R.Crim.P. 584, Appellees filed motions for a

change of venue to transfer the cases to Philadelphia on the ground that the

alleged crimes took place in Philadelphia. On August 22, 2023, following a

hearing, the trial court entered an order in each case stating that “upon

consideration of Defendant’s Motion to Change Venue . . . IT IS hereby

ORDERED and DECREED that Defendant’s Motion is GRANTED and this case is

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transferred from Montgomery County to Philadelphia County.” Order,

8/22/23.

On August 23, 2023, the Commonwealth filed a motion for

reconsideration in both cases. While most of the motion focused on why

Montgomery County was the proper venue, a single paragraph in the motion

asserted that “the record is devoid of any allegations that these defendants

could not receive a fair and impartial trial in Montgomery County as required

by [Rule 584].” Commonwealth’s Motion to Reconsider, 8/23/23, at 3. The

Commonwealth did not cite any other rule of criminal procedure in its motion

for reconsideration.

On August 28, 2023, the trial court entered an order in each case

stating:

[U]pon the court’s transfer of this matter from the Montgomery County Court of Common Pleas to the Philadelphia County Court of Common Pleas, IT IS hereby ORDERED and DECREED that the Montgomery County Clerk of Courts shall forward the case file and all case materials to the Philadelphia County Clerk of Courts so that the matter can be registered within the Philadelphia County system.

Order, 8/28/23.

On September 8, 2023, the Commonwealth filed notices of appeal in

each case from the August 22, 2023, transfer orders. Each notice of appeal

stated, “This appeal is taken pursuant to Pa.R.A.P. 311(a)(3), which permits

an appeal as of right from an order changing venue or venire in a criminal

proceeding.” This Court docketed these appeals at 2289 and 2290 EDA 2023.

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On September 11, 2023, this Court entered an order at 2289 and 2290

EDA 2023 directing the Commonwealth to show cause as to why the appeals

should not be quashed as untimely. Our order cited Pa.R.A.P. 903(c)(1)(i),

which provides that “an appeal from any of the following orders shall be taken

within ten days after the entry of the order from which the appeal is taken: [

] An order changing venue or venire in a criminal proceeding.”

On September 15, 2023, the Commonwealth filed notices of appeal from

the orders entered on August 28, 2023. This Court docketed these appeals at

2407 and 2408 EDA 2023.

On September 18, 2023, the Commonwealth filed a response to our

order to show cause at 2289 and 2290 EDA 2023 claiming it made a mistake

by invoking Pa.R.A.P. 311(a)(3) in its notices of appeal. The Commonwealth

claimed that the trial court’s order could not be classified as a venue change

order because the proceedings did not involve whether Appellees could be

tried fairly in Montgomery County but, rather, involved whether any of the

elements of the crime took place in Montgomery County. The Commonwealth

added that the trial court did not follow proper procedures under Pa.R.Crim.P.

584, because a venue change under this rule required the trial court to certify

the matter to the Supreme Court of Pennsylvania, after which only the

Supreme Court could designate the transferee county.

On September 19, 2023, the Commonwealth filed amended notices of

appeal from the August 22, 2023, orders. Unlike the original notices of appeal,

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the amended notices of appeal did not state that the Commonwealth was

appealing under Pa.R.A.P. 311(a)(3).

On May 23, 2024, without requesting the Commonwealth to file a

statement of matters complained of on appeal, the trial court filed an opinion

recommending that this Court quash all appeals. The court observed:

[T]he court issued its Orders granting [Appellees’] Motions to Change Venue on August 22, 2023. Pursuant to Pa.R.A.P. 903(c)(1)(i), the Commonwealth was required to file any notice of appeal within ten (10) days of the entry of these Orders, i.e., on or before September 1, 2023. The Commonwealth did not file its notices of appeal until September 8, 2023 . . . On September 15, 2023, the Commonwealth filed additional notices of appeal with respect to the August 28, 2023 administrative Orders transferring the case files to the Philadelphia County Court of Common Pleas. Notably, even if the August 28, 2023 administrative Orders constitute appealable orders, the September 15, 2023 notices of appeal again were not filed within the mandated ten (10) day appeal period set forth under Pa.R.A.P. 903(c)(1)(i). On September 19, 2023, the Commonwealth filed amended notices of appeal with respect to the court’s August 22, 2023 Orders which were also not filed within the mandated ten (10) day appeal period set forth under Pa.R.A.P. 903(c)(1)(i).

Opinion, 5/23/24, at 5.

The Commonwealth raises the same three issues in each of these

appeals:

1. Did the Montgomery County Court have jurisdiction to preside over these cases?

2. Did the trial court improperly transfer venue to Philadelphia?

3. Was venue was proper in Montgomery County?

See, e.g., Commonwealth’s Brief at 2289 EDA 2023, at 4.

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Before addressing these issues, however, we must first examine the

jurisdictional question of whether the Commonwealth’s four appeals are

timely. “Absent a breakdown in operations of the court, the time limitations

for taking appeals are strictly construed and cannot be extended as a matter

of grace.” Commonwealth v. Valentine, 928 A.2d 346 (Pa. Super. 2007).

“Jurisdiction is vested in the Superior Court upon the filing of a timely notice

of appeal.” Commonwealth v. Patterson, 940 A.3d 493, 497 (Pa. Super.

2007). The Superior Court “has no jurisdiction to consider untimely appeals.”

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

Contrary to the Commonwealth’s claim in its response to our order to

show cause, the August 22, 2023, orders clearly were venue change orders,

because the orders expressly stated that the “Motion to Change Venue” was

granted and that the case was “transferred from Montgomery County to

Philadelphia County.” The Commonwealth’s attempt to characterize this

language as something other than a venue transfer order is simply untenable.

Furthermore, the trial court correctly reasoned that these appeals are

untimely. Pennsylvania Rule of Appellate Procedure 903 provides:

(a) General rule. Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken.

* * *

(c) Special provisions. Notwithstanding any other provision of this rule:

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(1) An appeal from any of the following orders shall be taken within ten days after the entry of the order from which the appeal is taken:

(i) An order changing venue or venire in a criminal proceeding. See Rule 311(a)(3) (change of criminal venue or venire).

Pa.R.A.P. 903. (Emphasis added).

In the first two appeals at 2289 and 2290 EDA 2023, the Commonwealth

filed notices of appeal on September 8, 2023, seventeen days after August

22, 2023, the date of entry of the order transferring venue. Both notices of

appeal stated that these appeals are taken under Rule 311(a)(3). Both

appeals are untimely. The Commonwealth was required to appeal the Rule

311(a)(3) order within ten days, see Pa.R.A.P. 903(c)(1)(i), but the

Commonwealth failed to appeal until seventeen days after entry of the order.

The Commonwealth filed its third and fourth appeals on September 15,

2023, from orders entered on August 28, 2023. As the trial court observed,

these orders arguably were not appealable because they were mere

administrative orders designed to effectuate the August 22, 2023, venue

transfer orders. Even if these orders were appealable, the Commonwealth’s

appeals were untimely, because they were filed eighteen days after August

28, 2023, outside of the ten day appeal period mandated under Rule

903(c)(1)(i).

In its appellate brief, the Commonwealth no longer claims that it is

appealing under Rule 311(a)(3)—an unsurprising change since these appeals

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clearly are untimely under Rule 311(a)(3). The Commonwealth contends in

its brief that it is appealing under Pa.R.A.P. 313, the rule governing appeals

from collateral orders.1 Assuming arguendo that the August 22, 2023, and/or

August 28, 2023, orders constitute collateral orders, this does not make the

Commonwealth’s appeals timely. Although Rule 903 generally permits

appeals to be filed within thirty days after entry of an appealable order, this

rule includes a specific and explicit exception requiring parties to appeal an

order “changing venue or venire in a criminal proceeding” within ten days after

entry of the order. Pa.R.A.P. 903(c)(1)(i). This text controls the time period

for appeals of venue transfer orders, regardless of whether the order also

constitutes a collateral order. See 1 Pa.C.S.A. § 1933 (if conflict between two

provisions is irreconcilable, special provision shall prevail and shall be

construed as exception to general provision). We can find no case that

dictates a different result; nor does the Commonwealth point us to any. 2

For these reasons, we quash all appeals captioned above.

Appeals quashed.

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1 A collateral order “is an order separable from and collateral to the main cause

of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.” Pa.R.A.P. 313(b).

2 Since we lack jurisdiction over these appeals due to their untimeliness, we

do not reach the Commonwealth’s argument that the trial court failed to follow the procedures required under Pa.R.Crim.P. 584 in the course of granting Appellees’ motion to transfer venue.

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Date: 9/2/2025

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