Commonwealth v. Green

862 A.2d 613, 2004 Pa. Super. 433, 2004 Pa. Super. LEXIS 4320
Superior Court of Pennsylvania·Decided November 16, 2004·Published·Cited by 172 cases

Opinions

OPINION BY

JOYCE, J.:

¶ 1 Appellant, Edna L. Green, appeals from the judgment of sentence imposed by the trial court on July 22, 2002. The sentence was imposed subsequent to a jury trial in which Appellant was found guilty of terroristic threats, and a bench trial in which Appellant was found guilty of the summary offense of harassment. After careful review, we quash this appeal.

¶2 The record reveals the following chronology of events. On December 27, 2001, Appellant was involved in an altercation with her neighbors, Daryl Peters and his wife, Monica Peters. As a result of this incident, Appellant was charged with several offenses. On May 7, 2002, a jury trial was held at the conclusion of which the jury found Appellant guilty of terroristic threats1 and not guilty of simple assault.2 The trial court found Appellant guilty of the summary offense of harassment.3 The court then ordered a Pre-Sentence Investigation report and sentencing was scheduled.4

¶ 3 On July 22, 2002, the trial court sentenced Appellant to four years’ probation and ordered her to pay a fine in the amount of $250.00 plus costs. Appellant was also ordered to have no contact with Daryl Peters and his wife, Monica Peters. Although the sentence was imposed on July 22, 2002, the order of sentence was filed (docketed) on July 31, 2002.

¶4 On August 2, 2002, Appellant filed her post-sentence motion alleging that the jury verdict was against the weight of the evidence, and seeking arrest of judgment or a new trial. Appellant also sought a modification of her sentence. Without explanation, in an order dated August 13, 2002 (docketed August 15, 2002), the trial court released Appellant from probation supervision and revoked all costs and fines imposed on Appellant. On August 16, 2002, the trial court entered an order (docketed on August 19, 2002) denying Appellant’s post-sentence motion. Thereafter, on Septémber 12, 2002, Appellant appealed to this Court. The trial court ordered Appellant to file a concise statement of matters complained of on appeal (Pa.R.A.P. 1925(b)) and she complied.

¶ 5 On appeal, the single issue raised by Appellant is “whether the trial court erred in denying [Appellant’s] post-sentence motions when the jury’s verdict was contrary to the weight of the evidence as no reasonable jury could have found [Appellant] guilty of making terroristic threats and when such verdict should have shocked the [615] trial court’s sense of justice?” Brief for Appellant, at 6 (capitalization omitted).

¶ 6 Before addressing the merits of Appellant’s claim, we must address the timeliness of this appeal as it implicates our jurisdiction. Commonwealth v. Yaris, 557 Pa. 12, 731 A.2d 581, 587 (1999) (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. Miller, 715 A.2d 1203, 1205 (Pa.Super.1998). In the case at bar, the focus of our inquiry is whether Appellant’s post-sentence motion, which was filed on August 2, 2002, was timely even though Appellant’s sentence was pronounced on July 22, 2002 but was docketed on July 31, 2002. As we will explain below, the timeliness of Appellant’s post-sentence motion relates to the timeliness of Appellant’s notice of appeal.

¶ 7 Rule 720(A)(1) of the Pennsylvania Rules of Criminal Procedure provides as follows: “(1) Except as provided in paragraph (D) [dealing with summary cases], a written post-sentence motion shall be filed no later than 10 days after imposition of sentence.” Id. (emphasis added). Herein, Appellant was sentenced on July 22, 2002. Pursuant to Rule 720(A)(1), Appellant had ten days from July 22, 2002 or until August 1, 2002, to file her post-sentence motion. Although dated August 1, 2002, Appellant’s post-sentence motion was entered on the docket on August 2, 2002. Using the date on which the sentence was entered on the docket (July 31, 2002), Appellant’s post-sentence motion would appear to be timely. However, utilizing the date on which Appellant’s sentence was pronounced (July 22, 2002), Appellant’s post-sentence motion would be untimely.

¶ 8 Against the above background we must determine whether the beginning of the ten-day period prescribed in Pa. R.Crim.P. 720(A)(1) refers to the date the sentence was pronounced or the date the sentence was entered on the docket. In our view, the beginning of the ten-day period refers to the date the sentence was pronounced and not the date the sentence was entered on the docket.

¶ 9 First, Pa.R.Crim.P. 720(A)(1) specifically refers to the date of imposition of sentence. Similarly, the comment to Rule 720(A)(1) also specifically refers to the date of imposition of sentence. Neither the rule nor the comment thereto refers to the date on which the sentence was docketed. These are strong indicators that in promulgating and adopting Rule 720(A)(1), the Pennsylvania Supreme Court intended the date of imposition of sentence as the reference point for computing the time for filing post-sentence motions and not the date on which the sentence was docketed. Secondly, had the intent been to begin the ten-day period on the date on which the sentence was docketed, it could have used the term “the date of entry”5 of the sentence. For instance, in other provisions of Pa.R.Crim.P. 720(A), the term “date of entry” was used as shown below:

(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 [616] 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)(2). Along the same lines, the word entry was used in Pa. R.Crim.P. 720(A)(4) which provides that: “If the Commonwealth files a motion to modify sentence pursuant to Rule 721, the defendant’s notice of appeal shall be filed within 30 days of the entry of the order disposing of the Commonwealth’s motion.” Id.

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Commonwealth v. Green, 862 A.2d 613, 2004 Pa. Super. 433, 2004 Pa. Super. LEXIS 4320 (Pa. Ct. App. 2004).

862 A.2d 613 (Commonwealth v. Green) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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