Com. v. Thompson, J.

Opinion

J-A06014-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES SIMON THOMPSON : : Appellant : No. 1413 WDA 2022

Appeal from the Judgment of Sentence Entered September 1, 2022 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0002939-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES S. THOMPSON : : Appellant : No. 1414 WDA 2022

Appeal from the Judgment of Sentence Entered September 1, 2022 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0001027-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES SIMON THOMPSON : : Appellant : No. 1415 WDA 2022

Appeal from the Judgment of Sentence Entered September 1, 2022 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000413-2019

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J. J-A06014-24

MEMORANDUM BY LAZARUS, P.J.: FILED: May 30, 2024

James Simon Thompson appeals from the judgments of sentence,1

entered in the Court of Common Pleas of Fayette County, following his

convictions at the above-captioned dockets.2 After review, we quash the

appeals as prematurely filed.

Thompson was charged with various drug offenses in relation to his sale

of a heroin and fentanyl mixture called “Puma” to Jeffrey Schambach.

Schambach died from an overdose of Puma. As the police investigated, they

executed search warrants on Thompson’s home and vehicle, where they

discovered, inter alia, large amounts of Puma, scales, and drug paraphernalia.

Thompson was not at the residence during the execution of the warrant;

however, police subsequently located Thompson driving on Route 119,

whereupon Thompson attempted to elude police in a high-speed chase.

Thompson was ultimately arrested, charged, and, on August 19, 2022,

convicted. On August 29, 2022, Thompson filed timely Post-Trial Motions.

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1 Thompson’s notices of appeal improperly state that he is appealing from the

order denying of his Post-Trial Motions. See Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (in criminal action, appeal properly lies from judgment of sentence “made final by the denial of post-sentence motions.”) (emphasis added). Additionally, on May 22, 2023, this Court sua sponte consolidated Thompson’s appeal. See Pa.R.A.P. 513.

2 In light of our disposition, we decline to recite all of Thompson’s convictions

and sentences. In sum, Thompson was convicted of 17 misdemeanor and felony offenses, plus a host of summary traffic violations. See Trial Court Opinion, 2/21/23, at 11.

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On September 1, 2022, the trial court sentenced Thompson to an

aggregate period of 50 to 101 years’ incarceration. On September 12, 2022,

Thompson filed timely Post-Sentence Motions.3

On November 8, 2022, the trial court entered an order denying

Thompson’s Post-Trial Motions. In this order, the trial court only refers to the

Post-Trial Motions and does not address any claims contained in the Post-

Sentence Motions. The trial court did not enter an order granting or denying

Thompson’s Post-Sentence Motions. On December 5, 2022, Thompson filed

the above-captioned notices of appeal.

On March 21, 2023, this Court issued a Rule to Show Cause directing

Thompson to explain why his appeals should not be quashed as prematurely

filed. See Rule to Show Cause, 3/31/23, at 1-2; see also Commonwealth

v. Claffey, 80 A.3d 780, 783 (Pa. Super. 2013) (an appeal filed during post-

sentence motion review period, set forth in Pa.R.Crim.P. 720(B)(3)(a), but

before disposition of timely post-sentence motions, should be quashed as

premature). Thompson filed a Response, in which he indicated that he had

filed a Praecipe in the trial court requesting that his Post-Sentence Motions be

denied by operation of law. See Response, 3/28/23, at 1-2. ____________________________________________

3 The 10th day to file a timely post-sentence motion was September 11, 2022,

a Sunday and, accordingly, Thompson had until September 12, 2022, to file a timely post-sentence motion. See 1 Pa.C.S.A. § 1908 (“Whenever the last day of any such time period shall fall on a Saturday or Sunday . . . such day shall be omitted from the computation.”); see also Pa.R.Crim.P. 720(A)(1) (“a written post-sentence motion shall be filed no later than 10 days after imposition of sentence”). Therefore, Thompson’s Post-Sentence Motions, filed on September 12, 2022, were timely filed.

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As a preliminary matter, we must sua sponte address whether we have

jurisdiction to address Thompson’s appeals. See Commonwealth v.

Kennedy, 876 A.2d 939, 943 (Pa. 2005) (appellate courts lack jurisdiction

over non-appealable orders); Commonwealth v. Wrecks, 934 A.2d 1287,

1289 (Pa. Super. 2007) (this Court has no jurisdiction over untimely appeals);

see also Claffey, supra.

Further, when a timely post-sentence motion is filed, the judgment of

sentence is not final for purposes of appeal until the trial court disposes of the

motion or the motion is denied by operation of law. See Commonwealth v.

Borrero, 692 A.2d 158, 159 (Pa. Super. 1997). When an appellant files a

premature notice of appeal before the trial court has ruled on a timely post-

sentence motion, the judgment of sentence is not final, and the appeal is

interlocutory. See id. at 160. Therefore, the proper remedy is for this Court

to quash the appeal, relinquish jurisdiction, and remand for the trial court to

consider the post-sentence motion nunc pro tunc. See id. at 161.

It is clear from the record, as we noted supra, that Thompson’s Post-

Sentence Motions were timely filed. See Pa.R.Crim.P. 720(A)(1); 1 Pa.C.S.A.

§ 1908. Therefore, the trial court had 120 days to file an order either granting

or denying Thompson’s Post-Sentence Motions. See Pa.R.Crim.P.

720(B)(3)(a). The 120th day for the trial court to decide Thompson’s Post-

Sentence Motions was Tuesday, January 10, 2023. However, Thompson filed

the above-captioned notices of appeal on December 5, 2022. Then, on

January 10, 2023, Thompson filed identical corresponding Criminal Docketing

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Statements in which he indicated that he was “[a]waiting the [trial c]ourt’s

response to Post-Sentence Motions.” Criminal Docketing Statement,

12/28/22, at 1.

The record reveals that the trial court did not enter an order denying

Thompson’s Post-Sentence Motions prior to him filing the notices of appeal.

Furthermore, the clerk of courts did not enter an order denying Thompson’s

Post-Sentence Motions by operation of law. See Pa.R.Crim.P. 720(B)(3)(a)

(where trial court fails to deny post-sentence motion within 120 days, or grant

an extension, the motion “shall be deemed denied by operation of law”)

(emphasis added).

Moreover, despite Thompson’s assertions in his Response to the Rule to

Show Cause, this Court has not received a copy of the purportedly filed

Praecipe, and a search of the above-captioned dockets reveals that no such

Praecipe has ever been filed. Additionally, the dockets reveal that no order

denying Thompson’s Post-Sentence Motions has been filed. See Pa.R.Crim.P.

720(b)(3).

The foregoing leads to the inevitable conclusion that Thompson’s notices

of appeal were prematurely filed in violation of our appellate rules and case

law. See Claffey, supra; see also Borrero, supra. Accordingly, we quash

Thompson’s appeals, relinquish jurisdiction, and remand for the trial court to

consider his Post-Sentence Motions nunc pro tunc. See Borrero, supra.

Appeals quashed.

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5/30/2024

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