J-S08014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    RICHARD LEWIS,

                             Appellant                No. 1311 EDA 2018


          Appeal from the Judgment of Sentence Entered March 8, 2018
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0004890-2017


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 29, 2019

        Appellant, Richard Lewis, appeals from the March 8, 2018 judgment of

sentence of 2½ to 7 years’ incarceration, imposed after he was convicted by

a jury of theft by unlawful taking and receiving stolen property. Appellant

seeks to challenge the court’s denial of his pretrial motion to suppress

evidence.     However, after careful review, we are compelled to quash his

appeal.

        We need not delve into the facts underlying Appellant’s convictions. We

only note that on March 8, 2018, he was convicted of the above-stated

offenses and sentenced to the term set forth supra. That same day, Appellant

was advised of his post-sentence motion and appeal rights both orally and in


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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writing. See N.T. Sentencing, 3/8/18, at 14-15; Statement of Post-Sentence

Rights, 3/8/18. Appellant stated at the close of the sentencing hearing that

he wished to file an appeal. See N.T. Sentencing at 15.

       Thereafter, Appellant did not file any post-sentence motions. Thus, he

had until April 9, 2018, to file a timely appeal. 1 On April 23, 2018, a pro se

notice of appeal filed by Appellant – that he had hand-dated April 10, 2018 –

was time-stamped and docketed by the Clerk of Courts of Delaware County.

On June 26, 2016, this Court issued a per curiam order remanding Appellant’s

case to the trial court for it to determine if he wished to proceed pro se (and,

if so, to conduct a hearing pursuant to Commonwealth v. Grazier, 713 A.2d

81 (Pa. 1998)), or to appoint him counsel for this appeal. On remand, the

court appointed counsel, who entered her appearance on Appellant’s behalf

on July 12, 2018.

       On July 25, 2018, this Court issued another per curiam order, directing

Appellant to show cause why his appeal should not be quashed as being

untimely filed. On August 6, 2018, Appellant filed a response to our rule-to-

show-cause order. Therein, he avers that, at the March 8, 2018 sentencing

____________________________________________


1 Appellant’s notice of appeal was due 30 days after the imposition of his
sentence. See Pa.R.A.P. 903(a). Because 30 days after March 8, 2018, was
Saturday, April 7, 2018, Appellant had until Monday, April 9, 2018, to file a
timely notice of appeal. See 1 Pa.C.S. § 1908 (“Whenever the last day of any
… period [of time referred to in a statute] shall fall on a Saturday or Sunday,
or on any day made a legal holiday by the laws of this Commonwealth or of
the United States, such day shall be omitted from the computation.”).



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hearing, his attorney had requested to withdraw from representing him and

the court had granted that request. See Appellant’s Response to Rule to Show

Cause Order, 8/6/18, at 1 (unnumbered).              Appellant contends that,

consequently, he was forced to file his appeal pro se, and circumstances out

of his control impeded him from doing so. See id. at 1-2 (unnumbered). For

instance, Appellant claims that he was moved to a different prison and denied

access to paper and writing utensils for several weeks following the imposition

of his sentence. Id. at 2 (unnumbered).

      Appellant insists that, nevertheless, “[o]n or before the April 9, 2018[]

deadline to file his appeal, [he] delivered his pro se [n]otice of [a]ppeal to the

prison authorities for mailing to the Court of Common Pleas, [and the]

Delaware County Clerk of Court[s]….” Id. at 2-3 (unnumbered). According

to Appellant, that pro se notice of appeal was “received and timely filed on or

about April 6, 2018,” but it was then “returned for failure to note the docket

number on his appeal.”     Id. at 3.   In support of this argument, Appellant

attaches that ostensibly timely-filed, yet rejected, notice of appeal to his

response to our rule-to-show-cause order as “Exhibit D.” On that document,

there is a crossed-out time-stamp that appears to read April 6, 2018.

Appellant further contends that, on April 10, 2018, he re-sent the corrected

notice of appeal, which was then time-stamped and entered on the docket on

April 23, 2018.    Appellant concludes that under these circumstances, we

should excuse the untimely filing of his notice of appeal.




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       Unfortunately for Appellant, the record before us does not support his

argument. First, the transcript of the March 8, 2018 sentencing hearing does

not contain any request to withdraw by his trial counsel, and nothing in the

record indicates that the court allowed counsel to withdraw prior to Appellant’s

filing his pro se notice of appeal on April 23, 2018.

       Second, a comparison of the pro se notice of appeal at “Exhibit D,” and

the pro se notice of appeal contained in the certified record, indicates that if

the Clerk of Courts received – and improperly rejected – Appellant’s notice of

appeal, it did so on April 16, 2018, not April 6th, as Appellant claims.2 As

mentioned, supra, the photocopied notice of appeal at “Exhibit D” bears a

crossed-out time-stamp that appears to read April 6, 2018. However, the

seemingly identical, pro se notice of appeal contained in the certified record

and time-stamped April 23, 2018, also bears a crossed-out time-stamp that

clearly reads April 16, 2018. Thus, it appears, as the Commonwealth logically

argues, that “in [Appellant’s] ‘Exhibit D[,]’ the ‘1’ in ‘April 16’ is covered by

the clerk’s ‘X’ mark[,]” while the “1” is visible in the original copy contained in

the certified record. Commonwealth’s Brief at 5. This interpretation of the

time-stamp on “Exhibit D” is supported by the fact that Appellant hand-dated

that pro se notice of appeal April 10, 2018.

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2 We stress that the Clerk of Courts has no authority to reject a notice of
appeal; instead, it must time-stamp and docket such documents, and then
inform the filing party of the error(s) so that the party can file an amendment
or addendum. See Commonwealth v. Willis, 29 A.3d 393, 395-96 (Pa.
Super. 2011).

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      In any event, we can only consider the pro se notice of appeal that is

contained in the certified record. See Bennyhoff v. Pappert, 790 A.2d 313,

318 (Pa. Super. 2001) (stating “[i]t is black letter law in this jurisdiction that

an appellate court cannot consider anything which is not part of the record in

[the] case”). Again, that notice clearly bears two time-stamps - one dated

April 16, 2018, which is crossed out, and a second dated April 23, 2018. Thus,

the earliest date on which Appellant attempted to file his pro se notice of

appeal was April 16, 2018, which was untimely. Additionally, the prisoner

mailbox rule affords Appellant no relief, as he hand-dated that notice of appeal

April 10, 2018, and he provided no proof that he deposited the notice with

prison authorities on or before the due date of April 9, 2018.               See

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (explaining that,

under the prisoner mailbox rule, an appeal by a pro se, incarcerated appellant

is “deemed ‘filed’ on the date that the appellate deposits the appeal with prison

authorities and/or places it in the prison mailbox[,]” and “[t]he appellant bears

the burden of proving that he or she in fact delivered the appeal within the

appropriate time period”). Given this record, we are constrained to conclude

that Appellant’s pro se notice of appeal was untimely filed. Consequently, we

lack jurisdiction to review his case. Commonwealth v. Capaldi, 112 A.3d




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1242, 1244 (Pa. Super. 2015) (“We lack jurisdiction to consider untimely

appeals, and we may raise such jurisdictional issues sua sponte.”).3

       Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/19




____________________________________________


3Appellant’s only avenue for relief is to file a petition under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, alleging the ineffectiveness of
his trial counsel for not timely filing the appeal that Appellant clearly requested
at his sentencing hearing. See N.T. Sentencing at 14.

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