J-A04040-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIK LONDON                                :
                                               :
                       Appellant               :   No. 523 EDA 2019

        Appeal from the Judgment of Sentence Entered October 12, 2017
      In the Court of Common Pleas of Monroe County Criminal Division at
                       No(s): CP-45-CR-0002141-2017,
              CP-45-CR-0002142-2017, CP-45-CR-0002143-2017


BEFORE:      PANELLA, P.J., STRASSBURGER, J.*, and COLINS, J.*

MEMORANDUM BY COLINS, J.:                               FILED MARCH 19, 2020

        Appellant, Erik London, appeals from judgments of sentence imposed

by the Court of Common Pleas of Monroe County (trial court) in three

consolidated criminal cases. Because Appellant did not timely file any appeals

from the judgments of sentence, we lack jurisdiction and therefore quash the

appeals.

        The three cases arose out of altercations that Appellant had with his

mother (Victim) in the summer of 2017. In CP-45-CR-0002141-2017 (CR-

2141-2017), the Commonwealth charged Appellant with simple assault and



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*   Retired Senior Judge assigned to the Superior Court.
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harassment of Victim and with resisting arrest1 in an incident at Victim’s house

on June 22, 2017.            In CP-45-CR-0002142-2017 (CR-2142-2017), the

Commonwealth charged Appellant with strangulation, simple assault, and

harassment of Victim2 in an incident at Victim’s house on August 27, 2017. In

CP-45-CR-0002143-2017           (CR-2143-2017),       the   Commonwealth   charged

Appellant with burglary and criminal trespass for breaking into Victim’s house

and simple assault and harassment of Victim,3 based on a second incident on

August 27, 2017.

        The three cases were consolidated and tried together before a jury on

July 12 and 13, 2018, with the summary offense harassment charge in each

case tried to the court.       In CR-2141-2017, the jury acquitted Appellant of

simple assault and convicted Appellant of resisting arrest, and the trial court

convicted Appellant of harassment.             CR-2141-2017 Verdict; CR-2141-2017

Trial Court Order, 7/13/18. In CR-2142-2017, the jury acquitted Appellant of

strangulation and convicted him of simple assault, and the trial court convicted

Appellant of harassment. CR-2142-2017 Verdict; CR-2142-2017 Trial Court

Order, 7/13/18. In CR-2143-2017, the jury acquitted Appellant of burglary

and simple assault and convicted him of criminal trespass, and the trial court

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1   18 Pa.C.S. §§ 2701(a)(1), 2709(a)(1), and 5104, respectively.
2   18 Pa.C.S. §§ 2718(a)(1), 2701(a)(1), and 2709(a)(1), respectively.
3 18 Pa.C.S. §§ 3502(a)(1)(i), 3503(a)(1)(ii), 2701(a)(1), and 2709(a)(1),
respectively.


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convicted Appellant of harassment.             CR-2143-2017 Verdict; CR-2143-2017

Trial Court Order, 7/13/18.

       On October 12, 2018, the trial court sentenced Appellant to the following

periods of incarceration: concurrent sentences of 60 days to 6 months for

resisting arrest and 30 days for harassment in CR-2141-2017, 90 days to 6

months for simple assault in CR-2142-2017,4 and concurrent sentences of 90

days to 6 months for criminal trespass and 30 days for harassment in CR-

2143-2017. CR-2141-2017, CR-2142-2017, and CR-2143-2017 Sentencing

Orders; N.T. Sentencing at 10-12. The trial court ordered that the sentences

in the three cases were to run consecutively, resulting in an aggregate

sentence of 8 months to 18 months. CR-2141-2017 Sentencing Order; N.T.

Sentencing at 10-12.

       Appellant did not file any post-sentence motion or appeal within 30

days. On January 11, 2019, 91 days after the imposition of these sentences,

Appellant’s counsel filed a document in each of the three cases entitled “Nunc

Pro Tunc Motions for Reconsideration” in which he asserted only the following

as grounds for nunc pro tunc relief:

       4. During the time since sentencing, including up to and including
       the present time, London has been housed in the intensive unit at
       the Monroe County Correctional facility.
       5. This has made communication with London very difficult and
       sporadic at best.


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4The trial court imposed no sentence for the harassment conviction in CR-
2142-2017 because it merged with the simple assault conviction in that case.

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      6. As a result, counsel did not receive notice from London that he
      wanted to seek reconsideration, in preparation for Appeal of the
      several underlying trial issues, until well after the necessary time
      period for such Motion to be filed.

Nunc Pro Tunc Motions for Reconsideration at 1-2.

      On January 15, 2019, the trial court issued orders in all three cases

granting Appellant leave to file his post-sentence motions nunc pro tunc, but

denying the motions on the merits. CR-2141-2017, CR-2142-2017, and CR-

2143-2017 Trial Court Orders, 1/15/19. In these orders, the trial court further

stated:

      Pursuant to Pennsylvania Rule of Criminal Procedure 720(8)(4),
      Defendant is notified that he is entitled to the following:
      (a) the right to appeal to the Superior Court of Pennsylvania within
      thirty (30) days of the date of this Order;
      (b) the right to assistance of counsel in the preparation of the
      appeal;
      (c) the rights, if indigent, to appeal in forma pauperis and to
      proceed with assigned counsel as provided in Rule 122; and
      (d) the qualified right to bail under Rule 521 (B).

Id.

      On February 13, 2019, Appellant filed a notice of appeal bearing the

docket numbers of all three cases. On October 4, 2019, Appellant filed his

brief in this appeal, raising three claims of error: 1) the exclusion, pursuant

to the Wiretapping and Electronic Surveillance Control Act, of an audio

recording that Appellant sought to introduce of a telephone call with Victim’s

friend, which Victim’s friend testified was recorded without her knowledge or

consent; 2) the admission of testimony that Appellant was found in possession

of cocaine in February 2018 and was charged with drug possession; and 3)

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statements in the Commonwealth’s closing argument concerning the

credibility of witnesses. The Commonwealth did not file a brief.

      On November 13, 2019, this Court issued a rule to show cause directing

Appellant to 1) show why the appeal should not be quashed under

Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) because he filed only

a single notice of appeal that appealed judgments of sentence in three cases;

and 2) also show why the appeal should not be quashed as untimely under

Commonwealth v. Capaldi, 112 A.3d 1242 (Pa. Super. 2015) because it

was filed more than 30 days after judgment of sentence and permission to file

a post-sentence motion nunc pro tunc was not granted by the trial court within

30 days after judgment of sentence. Appellant filed a timely response to the

rule to show cause, and on December 4, 2019, the Court referred the Walker

and untimely appeal issues to the merits panel for consideration.

      Before we may consider any of the issues raised by Appellant, we must

determine whether we have jurisdiction over the appeal. We conclude that

we do not because Appellant’s appeals are untimely and Appellant has shown

no basis for nunc pro tunc relief.

      If no post-sentence motion or motion by the Commonwealth to modify

sentence is filed, a defendant must file an appeal within 30 days of the

imposition of sentence in open court. Pa.R.Crim.P. 720(A)(3); Pa.R.A.P.

903(c)(3); Capaldi, 112 A.3d at 1244. If the defendant files a timely post-

sentence motion, the appeal period does not begin to run until the motion is


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decided, denied by operation of law, or withdrawn. Pa.R.Crim.P. 720(A)(2);

Capaldi, 112 A.3d at 1244.

     Appellant was required to file his post-sentence motions within 10 days

of imposition of sentence. Pa.R.Crim.P. 720(A)(1). Appellant’s post-sentence

motions, filed over 90 days after imposition of sentence, were patently

untimely.   An untimely post-sentence motion does not extend the 30-day

appeal period. Capaldi, 112 A.3d at 1244; Commonwealth v. Green, 862

A.2d 613, 618-19 (Pa. Super. 2004) (en banc).

     Appellant did seek leave to file his post-sentence motions nunc pro tunc

and the trial court granted that request. However, a post-sentence motion

nunc pro tunc tolls the appeal period only if the defendant requests leave to

file nunc pro tunc within 30 days of the imposition of sentence and the trial

court expressly grants permission to file nunc pro tunc within 30 days of the

imposition of sentence.   Capaldi, 112 A.3d at 1244; Commonwealth v.

Dreves, 839 A.2d 1122, 1128-29 & n.6 (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.

Capaldi, 112 A.3d at 1244 (quoting Dreves, citations omitted, emphasis

omitted).




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      Appellant’s appeals were filed 124 days after the imposition of sentence

in all three cases. While the appeals were filed 29 days after the trial court

ruled on the post-sentence motions and granted Appellant’s request to file his

post-sentence motions nunc pro tunc, the post-sentence motions did not

extend the 30-day appeal period because they were untimely and permission

to file nunc pro tunc was neither sought nor granted within the 30-day appeal

period. Capaldi, 112 A.3d at 1244-45; Dreves, 839 A.2d at 1128 & n. 6.

      Appellant has not set forth any basis on which this Court could find his

appeals timely. In his response to the rule to show cause, Appellant argued

only that the trial court’s order granted him the right to appeal until February

14, 2019 and that the appeal was filed within that period. Response to Rule

to Show Cause ¶2. That argument fails because Appellant’s January 2019

request for nunc pro tunc relief and the trial court’s grant of that relief were

too late to affect the appeal deadline and make this appeal timely under

Capaldi and Dreves.

      Moreover, neither Appellant’s request for nunc pro tunc relief with

respect to his post-sentence motions nor his response to the rule to show

cause sets forth any basis for allowing a nunc pro tunc appeal. Appellant did

not allege that anything prevented him from filing an appeal within 30 days

of his sentencing in his request for nunc pro tunc relief. Rather, he alleged

only that as a result of prison-related communication problems, “counsel did

not receive notice from [Appellant] that he wanted to seek reconsideration, in


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preparation for Appeal of the several underlying trial issues, until well after

the necessary time period for such Motion to be filed.” Nunc Pro Tunc Motions

for Reconsideration ¶¶4-6.        This alleges only that counsel did not learn of

Appellant’s desire to file a post-sentence motion within 10 days, not that he

did not learn that Appellant wished to appeal until after the 30-day appeal

period. The request for nunc pro tunc relief did not plead a date when counsel

learned of Appellant’s wishes that would show that the appeal could not have

been filed within 30 days, let alone show a reason for the failure to act for

over 90 days.

       The trial court’s statement in its January 15, 2019 orders that Appellant

had 30 days from that date to appeal likewise cannot be grounds for allowing

nunc pro tunc relief. While erroneous, this statement by the trial court could

not have caused Appellant’s failure to timely appeal because the appeal period

had already expired in November 2018, long before the trial court’s orders

containing that statement were issued in January 2019.

       Because Appellant did not file any timely notice of appeal and has not

alleged any ground that would support allowing a nunc pro tunc appeal here,

we are compelled to quash these appeals.5

       Appeals quashed.



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5In light of our conclusion that the appeals must be quashed on untimeliness
grounds, we need not and do not address whether the appeals must be
quashed under Walker for failure to file a separate appeal in each case.

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     Judge Strassburger joins the Memorandum.

     President Judge Panella files a Concurring Memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2020




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