J-S08023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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