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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MELISSA LYNN SHEARER,
Appellant No. 1261 WDA 2015
Appeal from the Judgment of Sentence of June 17, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002907-2014
BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.
JUDGMENT ORDER BY OLSON, J.: FILED MAY 18, 2016
Appellant, Melissa Lynn Shearer, appeals from the judgment of
sentence entered on June 17, 2015. We quash.
As our resolution of this case is based solely upon the procedural
posture of this matter, we focus on the procedural history of this case. On
November 20, 2014, Appellant was charged via criminal information with
simple assault1 and harassment.2 At the conclusion of a bench trial held on
April 23, 2015, Appellant was found guilty of both charges. On June 17,
2015, Appellant was sentenced in absentia to an aggregate term of two
years’ intermediate punishment, including two days’ imprisonment. On July
7, 2015, Appellant filed a post-sentence motion. On July 28, 2015, the trial
1
18 Pa.C.S.A. § 2701(a)(1).
2
18 Pa.C.S.A. § 2709(a)(1).
* Former Justice specially assigned to the Superior Court
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court denied that motion. On August, 11, 2015, Appellant filed the instant
notice of appeal.
Appellant presents two issues for our review:
1. [Was] the verdict in this case [] against the weight
of the evidence . . .[?]
2. [Was] the sentence in this case [] manifestly
excessive and clearly unreasonable. . .[?]
Appellant’s Brief at 2 (complete capitalization omitted).
Before we consider the merits of Appellant’s issues, we first consider
whether the notice of appeal was timely filed. It is well-settled that this
Court lacks jurisdiction over untimely appeals and that we have the
obligation to raise such jurisdictional concerns sua sponte. Commonwealth
v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014). “[A] notice of appeal shall
be filed within 30 days after the entry of the order from which the appeal is
taken.” Pa.R.A.P. 903(a). In criminal cases, the order appealed from is the
judgment of sentence. Commonwealth v. Borrero, 692 A.2d 158, 159
(Pa. Super. 1997) (citation omitted). However, the 30-day appeal period is
tolled by the timely filing of a post-sentence motion. Pa.R.Crim.P.
720(A)(2).
In this case, Appellant’s post-sentence motion was untimely. A post-
sentence motion must be filed within ten days of the judgment of sentence.
Pa.R.Crim.P. 720(A)(1). As the trial court sentenced Appellant on June 17,
2015, and June 27, 2015 fell on a Saturday, her post-sentence motion was
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due on Monday, June 29, 2015. Appellant’s post-sentence motion was not
filed until July 7, 2015.
“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[.]” Pa.R.Crim.P. 720(A)(3). However, as this Court stated:
Under Commonwealth v. Dreves, 839 A.2d 1122[ ] (Pa.
Super. 2003) (en banc), a post-sentence motion nunc pro tunc
may toll the appeal period, but only if two conditions are met.
First, within 30 days of imposition of sentence, a defendant must
request the trial court to consider a post-sentence motion nunc
pro tunc. The request for nunc pro tunc relief is separate and
distinct from the merits of the underlying post-sentence motion.
Second, the trial court must expressly permit the filing of a post-
sentence motion nunc pro tunc, also within 30 days of imposition
of sentence. If the trial court does not expressly grant nunc pro
tunc relief, the time for filing an appeal is neither tolled nor
extended. Moreover, the trial court’s resolution of the merits of
the late post-sentence motion is no substitute for an order
expressly granting nunc pro tunc relief.
Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015)
(internal alteration, quotation marks, and citations omitted).
In this case, Appellant failed to satisfy both requirements under
Dreves. She did not seek permission to file a post-sentence motion nunc
pro tunc and the trial court did not grant her such permission. Thus, the
filing of Appellant’s untimely post-sentence motion did not toll the 30-day
appeal period. Her notice of appeal was due on or before July 17, 2015 but
was not filed until August 11, 2015. Accordingly, her notice of appeal was
untimely and we lack jurisdiction over this appeal.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2016
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