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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CAROLYN LEE MELLOTT,
Appellant No. 1961 WDA 2014
Appeal from the Judgment of Sentence of September 2, 2014
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-SA-0000047-2013
BEFORE: SHOGAN, OLSON and WECHT, JJ.
JUDGMENT ORDER BY OLSON, J.: FILED NOVEMBER 25, 2015
Appellant, Carolyn Lee Mellot, appeals from the judgment of sentence
entered on September 2, 2014 in the Criminal Division of the Court of
Common Pleas of Blair County. We quash for lack of jurisdiction.
Following a Special Olympics bowling event on February 17, 2013, the
Altoona Police Department filed a criminal complaint charging Appellant with
defiant trespass, in violation of 18 Pa.C.S.A. § 3503(b)(1)(i), and disorderly
conduct, in violation of 18 Pa.C.S.A. § 5503(a)(2). Both offenses were
graded as third degree misdemeanors. At a preliminary hearing, the
Commonwealth agreed to reduce the two misdemeanor charges to non-
traffic summary citations. At the conclusion of a summary trial held before
the magistrate judge on April 17, 2013, Appellant was found guilty of both
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offenses. Appellant appealed her convictions to the trial court on April 24,
2013.
Appellant proceeded to a trial de novo on July 26, 2013. At the
conclusion of a bifurcated trial on September 2, 2014, the court found
Appellant guilty and directed her to pay a $150.00 fine for her disorderly
conduct conviction, together with a fine of $25.00 for her defiant trespass
conviction. Appellant filed a motion for post-sentence relief that was denied
on October 30, 2014. Thereafter, Appellant filed a notice of appeal on
November 26, 2014.
On appeal, Appellant challenges both the sufficiency and the weight of
the evidence introduced in support of her disorderly conduct and defiant
trespass convictions. Before we examine these claims, however, we address
whether Appellant has properly invoked our jurisdiction. See Com., Dept.
of Environmental Protection v. Cromwell Tp., Huntingdon County, 32
A.3d 639, 646 (Pa. 2011) (question of whether a court has jurisdiction may
be raised at any time in the course of the proceedings, including by a
reviewing court sua sponte); Commonwealth v. Burks, 102 A.3d 497, 500
(Pa. Super. 2014) (“[Superior] Court can raise the [timeliness of an appeal]
sua sponte, as the issue is one of jurisdiction to entertain the appeal.”).
Pursuant to Pa.R.Crim.P. 720(D), “[t]here shall be no post-sentence
motion in summary case appeals following a trial de novo in the court of
common pleas. Pa.R.Crim.P. 720(D). The imposition of sentence
immediately following a determination of guilty at the conclusion of the trial
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de novo shall constitute a final order for purposes of appeal.” The comment
to Rule 720 confirms that, “[t]he time for appeal in summary cases following
a trial de novo runs from the imposition of sentence.” Pa.R.Crim.P. 720,
note. Consequently, Appellant was not permitted by rule to file her
post-sentence motion, which was a nullity. More importantly, Rule 720
makes clear that the notice of appeal is due within 30 days of the judgment
of sentence, and that the filing of an impermissible post-sentence motion
does not toll that time period. See Pa.R.Crim.P. 720(A)(3) (“If the
defendant does not file a timely post-sentence motion, the defendant's
notice of appeal shall be filed within 30 days of imposition of sentence[.]”).
As such, Appellant’s notice of appeal was due on or about October 2, 2014,
30 days after the judgment of sentence. Because it was not filed until
November 26, 2014, the notice of appeal was untimely, and our jurisdiction
was never properly invoked. See Pa.R.A.P. 903(c)(3) (“In a criminal case in
which no post-sentence motion has been filed, the notice of appeal shall be
filed within 30 days of the imposition of the judgment of sentence in open
court.”). In the absence of a timely notice of appeal, we must quash. See
Burks, 102 A.3d at 500 (“[Superior] Court has no jurisdiction to entertain
an untimely appeal”).
Appeal quashed for lack of jurisdiction.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2015
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