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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
REO BENJAMIN ADKINS : No. 1027 WDA 2019
Appeal from the Order Entered June 20, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000840-2019
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY McCAFFERY, J.: FILED MARCH 2, 2020
The Commonwealth appeals from the order of the Court of Common
Pleas of Erie County denying its motion to reconsider an earlier order granting
the habeas corpus motion of Reo Benjamin Adkins (Appellee).1 After review
of jurisdictional prerequisites, we quash.
Appellee was originally charged with drug offenses at CP-25-CR-
0001993-2017, but won a suppression motion based on the lack of a search
warrant. There was no Commonwealth appeal and the litigation ended upon
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1 The Commonwealth has certified in its notice of appeal that its appeal fell
under Pa.R.A.P. 311(d), which provides the Commonwealth an appeal as of
right in criminal matters where the order appealed from terminates or
substantially handicaps the prosecution. See Commonwealth’s Notice of
Appeal, 7/11/19. We note that the notice of appeal with certification refers
solely to the order of June 20, 2019, denying reconsideration. Appellee did
not file a brief.
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denial of the Commonwealth’s motion to reconsider on March 28, 2018.
On December 28, 2018, the Commonwealth filed the instant underlying
complaint at CP-25-CR-0000840-2019, bringing the same drug charges as in
the initial prosecution, based on the same underlying incident. This time, the
Commonwealth had obtained a warrant to search the bag that the police had
previously searched without a warrant. The Commonwealth presented no
other distinguishing characteristics of its renewed prosecution.
On April 9, 2019, the trial court granted Appellee’s habeas corpus
motion to suppress the contested evidence in this matter, as in the prior
prosecution. On April 18th, the Commonwealth filed a motion for
reconsideration. On June 20th, the trial court denied reconsideration, and on
July 11th, over three months after entry of the suppression order, the
Commonwealth filed a notice of appeal from the order denying
reconsideration. On July 16th, the trial court entered an order for a concise
statement pursuant to Pa.R.A.P. 1925(b), and on July 26th, the
Commonwealth filed a timely statement. 2
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2 The trial court determined that the Commonwealth’s Pa.R.A.P. 1925(b)
statement was too vague. Trial Ct. Op., 8/14/19, at 2. Indeed, the
Commonwealth’s statement is minimal at best, stating in substantial sum:
“The Court erred as a matter of law and/or abused its discretion by granting
[Appellee’s] Pre-trial Motion.” Commonwealth’s Concise Statement of Matters
Complained of on Appeal, 7/26/19. We remind the Commonwealth that “[t]he
Statement shall concisely identify each error that the appellant intends to
assert with sufficient detail to identify the issue to be raised for the judge.”
See Pa.R.A.P. 1925(b)(4)(ii).
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We may raise issues concerning jurisdiction sua sponte.
Commonwealth v. Gentry, 101 A.3d 813, 816 (Pa. Super. 2014). This Court
may not issue advisory opinions. Application of Milton S. Hershey Med.
Ctr. of Pennsylvania State Univ., 595 A.2d 1290, 1293 (Pa. Super. 1991).
To preserve the right to appeal a final order, a notice of appeal must be
filed within thirty days after the date of entry of that order. Pa.R.A.P. 903(a).
“Our court has repeatedly held that appeals filed from orders denying
reconsideration are improper[.]” Valentine v. Wroten, 580 A.2d 757, 758
(Pa. Super. 1990). The Valentine Court continues: “The appeal in this case
should have been filed within thirty days from the [final] order or,
reconsideration should have expressly been granted within thirty days of that
order. Since the untimely filing of the appeal goes to the jurisdiction of this
court, we have no choice but to quash the appeal.” Id.
Pennsylvania Rule of Appellate Procedure 1701, governing effects of
appeals, provides that after appeal is taken, trial courts may, inter alia, grant
reconsideration of the order subject of the appeal, if:
(i) an application for reconsideration of the order is filed in
the trial court or other government unit within the time provided
or prescribed by law; and
(ii) an order expressly granting reconsideration of such prior
order is filed in the trial court or other government unit within the
time prescribed by these rules for the filing of a notice of appeal
or petition for review of a quasijudicial order with respect to such
order, or within any shorter time provided or prescribed by law for
the granting of reconsideration.
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Pa.R.A.P. 1701(b)(3)(i)-(ii) (emphasis added);3 see also Commonwealth v.
Moir, 766 A.2d 1253 (Pa. Super. 2000) (filing of motion for reconsideration
did not toll 30-day period for appealing from trial court order, and thus appeal
was untimely).
The trial court granted Appellee’s habeas corpus motion on April 9,
2019. Although the Commonwealth filed for reconsideration on April 18th,
the trial court did not expressly grant reconsideration, and thus the period for
filing an appeal was not tolled. See Pa.R.A.P. 1701(b)(3) & note; Valentine,
580 A.2d at 578. Thus, the Commonwealth had to file a notice of appeal on
or before May 9th, per Pa.R.A.P. 903. Because the untimely filing of a notice
of appeal precludes jurisdiction of this Court, we must quash this appeal.
Appeal quashed.
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3 The note to Pa.R.A.P. 1701 explains:
The better procedure under this rule will be for a party seeking
reconsideration to file an application for reconsideration below and
a notice of appeal, etc. If the application lacks merit the trial court
or other government unit may deny the application by the entry
of an order to that effect or by inaction. The prior appeal paper
will remain in effect, and appeal will have been taken without the
necessity to watch the calendar for the running of the appeal
period. If the trial court or other government unit fails to enter
an order “expressly granting reconsideration” (an order that “all
proceedings shall stay” will not suffice) within the time prescribed
by these rules for seeking review, Subdivision (a) becomes
applicable and the power of the trial court or other government
unit to act on the application for reconsideration is lost.
Pa.R.A.P. 1701, note.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2020
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