J-S68021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JANET WEARY

                         Appellant                   No. 3489 EDA 2013


            Appeal from the Judgment of Sentence May 25, 2012
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0008915-2008


BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                      FILED DECEMBER 05, 2014

      Appellant Janet Weary contends in this direct appeal that her

aggregate sentence of 23-46 years’ imprisonment for third degree murder

and conspiracy to commit murder is excessive.

      We remand for further proceedings.        The record is unclear as to

whether Appellant filed timely post-sentence motions.           A remand is

necessary for the trial court to resolve this question, because the answer will

determine whether we have jurisdiction to decide this appeal. If Appellant

filed timely post-sentence motions, then we must quash this appeal as

premature due to the lack of any order deciding the motions. If Appellant

did not file post-sentence motions, her appeal is timely, and we will have

jurisdiction to decide this appeal.
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       Appellant and her brother, Rufus Weary, were charged as co-

defendants with murder1, attempted murder2, conspiracy3, and reckless

endangerment4 in connection with the shooting death of David McCoy on

November 1, 2007. While working as a drug dealer in the area of Harrison

and Tackawana Streets in Philadelphia, Appellant told Rufus, also a drug

dealer, that another drug dealer, Alan Reeder, was selling drugs at the same

location.    Appellant pointed out Reeder to Rufus Weary and McCoy.               A

gunfight ensued during which Rufus Weary shot and killed McCoy.                 The

Commonwealth prosecuted Appellant and Rufus Weary for murder on a

theory of transferred intent. N.T., 5/25/12, p. 12 (sentencing transcript).

       Appellant and Rufus Weary were tried together in July 2009, but the

court declared a mistrial in the middle of trial5. Prior to retrial, on May 5,

2010, Appellant pled guilty to third degree murder and conspiracy and

agreed to testify at retrial against Rufus Weary.             N.T., 5/25/12, p. 4 6.

During jury selection in Rufus Weary's May 2012 retrial, Appellant filed a pro

se motion for permission to withdraw her guilty plea. Id., p. 12. The court

denied the motion.         Id., p. 13.         Appellant was called to testify as a

Commonwealth witness at Rufus Weary's trial, but she did not testify
____________________________________________


1
  18 Pa. C.S. §    2502.
2
  18 Pa. C.S. §    903.
3
  18 Pa. C.S. §    907.
4
  18 Pa. C.S. §    2705.
5
   The certified   record does not include the July 2009 trial transcript.
6
   The certified   record does not include the May 5, 2010 guilty plea transcript.



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consistent with the Commonwealth's expectations. Id., pp. 12-15. Instead,

she proclaimed her innocence and insisted that Rufus Weary did not shoot

McCoy. Id., pp. 13-14.

       On May 25, 2012, the court sentenced Appellant to consecutive

sentences of 15-30 years’ imprisonment for third degree murder and 8-16

years’   imprisonment       for   conspiracy,    an   aggregate   of   23-46   years’

imprisonment. Id., pp. 17-18.

       It is unclear whether Appellant filed post-sentence motions. The trial

court states in its Pa.R.A.P. 1925(a) opinion that trial counsel filed timely

post-sentence motions on May 29, 2012. Trial Court opinion, p. 3 n. 8. No

post-sentence motions, however, are in the certified record.            Nor is there

any order in the record granting or denying post-sentence motions.               Nor

does the trial court docket state that Appellant filed post-sentence motions

or that the court decided the motions.

       On June 22, 2012, Appellant filed a notice of appeal to this Court. She

subsequently filed a Pa.R.A.P. 1925(b) statement in which she raised two

issues: an objection to the trial court’s refusal to permit her to withdraw her

guilty plea prior to Rufus Weary’s retrial7, and an objection to the length of

her sentence. Appellant articulated the latter issue as follows:


____________________________________________


7
  Appellant did not present any argument on this issue in her brief on
appeal.



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              The trial court abused its discretion by imposing an
              aggregate sentence of 23 to 46 years on the charges
              of third degree murder and conspiracy to commit
              third degree murder in that the sentence was
              excessive and therefore unreasonable under the
              totality of the circumstances even though the
              sentences were within the guidelines range for each
              offense.

Brief For Appellant, p. 14.

       At this juncture, we will not address this appeal on the merits.

Because we are not sure that Appellant filed timely post-sentence motions,

we are uncertain as to whether this appeal is timely.        We explain briefly

below.

       When a criminal defendant files timely post-sentence motions8, as the

trial court says Appellant did here, the Rules of Criminal Procedure provide

120 days for the trial court to review the motions (“review period”).

Pa.R.Crim.P. 720(B)(3)(a)9.         If the court decides the motions during the

review period, the defendant’s appeal period begins running when the Clerk

of Court enters the order deciding the motion. If the court fails to decide the

motion within the review period, the motion is deemed denied, and the

appeal period begins running when the Clerk of Court enters an order


____________________________________________


8
  See Pa.R.Crim.P. 720(A)(1) (except in circumstances not relevant here,
defendant must file written post-sentence motions no later than 10 days
after imposition of sentence).
9
  During the review period, the court may, for good cause shown, grant one
30-day extension for additional review. Pa.R.Crim.P. 720(B)(3)(b).



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denying the motion by operation of law.              Pa.R.Crim.P. 720(A)(2)(b) &

(B)(3)(b).

       An appeal filed during the review period, but before disposition of

timely    post-sentence       motions,     should   be   quashed   as   premature.

Commonwealth v. Claffey, 80 A.3d 780, 783 (Pa.Super.2013)10. On the

other hand, when the defendant does not file post-sentence motions, or if

she files untimely post-sentence motions, the judgment of sentence is final

and appealable as of the date of sentencing, and she must appeal within

thirty days after sentencing. Id. at 783 n. 1.

       As we observed above, we are uncertain as to whether Appellant filed

timely post-sentence motions. If she filed timely post-sentence motions, her

appeal on June 22, 2012 -- long before expiration of the review period –

must be quashed as premature. Claffey, supra. If she did not file timely

post-sentence motions, her June 22, 2012 appeal is timely, and we may

exercise jurisdiction over it.

       To resolve whether Appellant’s appeal is premature or timely, we

remand this case to the trial court, and we instruct as follows:


____________________________________________


10
   One exception to this rule occurs when (1) within 120 days after filing
timely post-sentence motions, the defendant files an appeal, (2) she
withdraws her post-sentence motions, and (3) the trial court enters an order
memorializing the withdrawal of post-sentence motions. In these limited
circumstances, we will entertain the appeal as having been filed on the date
of entry of the memorialization order. Claffey, supra.



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       (1) If the trial court determines that Appellant filed timely post-

sentence motions, the trial court shall enter an order (“Order”)

              (a) identifying the date Appellant filed the post-sentence

              motions;

              (b) explaining the disposition of said motions or denying the

              motions by operation of law11; and

              (c) in accordance with Pa.R.A.P. 1926(b), directing the Clerk of

              Court to

                     (i) create a supplemental record containing the post-

                     sentence motions and the Order,

                     (ii) certify the supplemental record, and

                     (iii) transmit it to this Court.

              (d) The Clerk of Court shall also enter the Order on the trial

              court’s docket and forward the corrected docket to this Court.

       (2) If the trial court determines that Appellant did not file timely post-

sentence motions, the trial court shall enter a finding of fact (“Finding”) that

Appellant did not file timely post-sentence motions and file the Finding with

____________________________________________


11
   If Appellant filed timely post-sentence motions, her premature appeal
during the 120 day post-sentence motion review period did not toll this
review period. See Pa.R.A.P. 1701(b)(6) (trial court may proceed further in
any matter in which a non-appealable interlocutory order has been entered,
notwithstanding filing of notice of appeal). Under these circumstances, the
review period expired in late September 2012, and the post-sentence
motions must be denied by operation of law.



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the Clerk of Court. The Clerk of Court shall enter the Finding on the docket

and forward the Finding to this Court.

       (3) All proceedings in the above paragraphs shall be completed within

30 days after the filing of this memorandum.

       (4)   Upon the completion of these steps, this Court will determine

whether to quash this appeal or exercise jurisdiction over it12.

       Case remanded for further proceedings in accordance with this

memorandum. Jurisdiction retained13.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2014




____________________________________________


12
   If the trial court enters the Order defined above, we will likely quash the
June 22, 2012 appeal. Thus, Appellant should consider filing a new notice of
appeal within 30 days after the docketing of the Order.
13
    We do not use the term “jurisdiction retained” to suggest that we
ultimately will decide that we have jurisdiction over this appeal. We merely
use this term to signify that we continue to retain this appeal on our docket
pending our decision as to whether we actually have jurisdiction.



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