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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL HOLLEY
Appellant No. 190 EDA 2015
Appeal from the Judgment of Sentence November 21, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004651-2013
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
JUDGMENT ORDER BY LAZARUS, J.: FILED APRIL 06, 2017
Michael Holley appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following his conviction for
arson after the trial court denied his motion to suppress the evidence of his
identification at a show -up. Upon review, we quash the appeal.
The salient facts of this matter are as follows. A fire and shooting
occurred in the early morning at 1534 Foulkrod Street, Philadelphia on
December 27, 2012. An eyewitness observed a man at the scene and gave
physical and clothing descriptions, including that the man was wearing a
pink shirt and black pants. A police officer stopped Holley because he
matched the descriptions provided by the eyewitness. The officer detained
* Former Justice specially assigned to the Superior Court.
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Holley and conducted a "show -up" for identification purposes. Holley also
admitted to being at the scene.
The trial court noted that
[Holley] was arrested and charged with multiple counts of
[a]ttempted [m]urder, [a]ggravated [a]ssault, [p]ossession of
[i]nstrument of [c]rime (PIC), [a]rson and other related
offenses. At his hearing on November 4, 2014, [Holley] brought
a motion to suppress his stop, his identification, and all evidence
recovered[.] . . After hearing the evidence presented, Judge
.
[Robert P.] Coleman denied the motion. [Holley] then
proceeded to a jury trial which began on [April 3, 2014]. [T]he
jury found [Holley] guilty of the [aforementioned] offenses. On
November 21, 2014, [Holley] proceeded to sentencing before
this [court,] where he was sentenced to nine[ -]and[ -]a[ -]half to
nineteen years['] incarceration [for a]ttempted [m]urder, two[ -
]and[ -]a[ -]half to five years['] incarceration [for] PIC, and
eight[ -]and[ -]a[ -]half to seventeen years['] [for a]rson, all other
related offenses merged. The sentences were all to run
consecutive[ly] for a total sentence of twenty[ -]and[ -]a[ -]half to
forty-one years['] incarceration. [Holley's] [m]otion for
[r]econsideration of his sentence was denied by the [c]ourt on
December 3, 2014.
[Holley] filed this [] appeal of the [c]ourt's decision on January
5, 2015. On January 20, 2015, this [c]ourt ordered [Holley] to
file a concise statement of the matters complained of on appeal
pursuant to [Pa.R.A.P.] 1925(b). After several motions
requesting an extension of time, [Holley] finally filed his 1925(b)
[s]tatement with the [c]ourt on May 26, 2015. [Holley] argues
that his [m]otion to [s]uppress should not have been denied by
Judge Coleman and that this [c]ourt gave him an excessive
sentence on the charges of PIC and [a]rson.
Trial Court Opinion, 8/3/15, at 1-2.
On appeal, Holley limits the issue presented for our review to whether
"the lower court err[ed] by holding that the police had lawfully seized
[Holley] prior to the show -up identification from the alleged eyewitness?"
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Appellant's Brief, at 4. Before we reach the merits of the issue Holley
presents, however, we first must address whether we have jurisdiction to
consider his appeal. Instantly, Holley filed an untimely notice of appeal,
which raises a jurisdictional issue that we may consider sua sponte.
Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001).
Holley's judgment of sentence was entered on November 21, 2014,
giving him until December 21, 2014, to file a timely notice of appeal. See
Pa.R.A.P. 903 (appellant has 30 -day period to file notice of appeal in this
Court from final order). Holley did not file his notice of appeal until January
5, 2015. We note that the filing of a motion for reconsideration does not toll
the 30 -day period unless the trial court expressly grants reconsideration,
which it did not do in this matter. See Coolbaugh, supra at 791. It is
inconsequential whether the trial court believed that the 30 -day period to file
the notice of appeal began to run from the entry of the order denying the
motion for reconsideration. See Trial Court Opinion, 8/3/15, at 2 (stating
that "[Holley] filed this timely appeal") (emphasis added)). Moreover,
Holley's notice of appeal nevertheless would have been untimely, since 30
days from December 3, 2014, fell on January 2, 2015. Thus, for the
foregoing reasons, Holley's notice of appeal was untimely filed and we are
without jurisdiction to consider his appeal. Coolbaugh, supra; Pa.R.A.P.
903.
Appeal quashed. Application for Remand denied.
FITZGERALD, J., Did not participate.
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Judgment Entered.
,etJ./CP
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2017
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