J-A01014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TERESA COOPER                              :
                                               :
                       Appellant               :   No. 3140 EDA 2017

                      Appeal from the Order April 25, 2017
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0005582-2013


BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY OTT, J.:                                   FILED APRIL 29, 2019

        Teresa Cooper appeals from the order entered April 25, 2017,1 in the

Delaware County Court of Common Pleas, denying her petition for

expungement of prior criminal charges.2 On appeal, Cooper argues the trial

court erred (1) when, relying upon this Court’s decision in Commonwealth

v. Lutz, 788 A.2d 993 (Pa. Super. 2001), it failed to consider the equities of

her expungement petition, and (2) in failing to determine whether her due

process rights were violated when the Commonwealth presented no evidence

at the expungement hearing. For the reasons below, we are constrained to

quash this appeal.

____________________________________________


1   The order was not docketed until the next day.

2As we will discuss infra, Cooper filed the notice of appeal following the trial
court’s August 7, 2017, order denying her motion for reconsideration of the
April 25th order.
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       The facts underlying Cooper’s original charges are summarized by the

trial court as follows:

       Cooper[] was arraigned in the Court of Common Pleas of Delaware
       County on October 2, 2013, on charges of Bad Checks, Access
       Device is Counterfeit, Altered or Incomplete, Theft by Deception
       – False Impression, Theft by unlawful taking – moveable property,
       Receiving Stolen Property and Forgery. [See 18 Pa.C.S. §§
       4105(a)(1), 4106(a)(1), 3922(a)(1), 3921(a), 3925(a), and
       4101(a)(2), respectively.]

              The foregoing charges were the result of an investigation by
       Detective Matthew Cresta of the Delaware County Criminal
       Investigation Division Economic Crimes Unit into [Cooper’s]
       conduct in “check kiting” wherein on May 7, 2013 she deposited a
       bad check in the amount of $4,800.00 into her Franklin Mint
       Federal Credit Union checking account and made withdrawals
       totaling $4,600.00 in allotments of $3,300.00 and $1,300.00.
       However, once the deposit check was dishonored her account
       became overdrawn in the amount of $4,863.91. The financial
       institution made multiple attempts to work with [Cooper] to rectify
       the overdrawn account but apparently these were fruitless and the
       Detective was contacted.      [Cooper] did not respond to the
       Detective who filed charges based on the foregoing on August 22,
       2013.

Trial Court Opinion, 5/8/2018, at 1-2 (footnotes, emphasis and record citation

omitted).

       Cooper waived her right to a preliminary hearing, and, on January 27,

2014, entered a negotiated guilty plea to one count of bad checks, graded as

a first-degree misdemeanor.3         In exchange for the plea, the Commonwealth

recommended a sentence of three years’ probation, with restitution in the


____________________________________________


3Cooper was 19 years old when she committed the offense and entered her
guilty plea.


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amount of $4,863.91 to be paid to the Franklin Mint Credit Union, and agreed

to dismiss the remaining charges at sentencing. The court accepted the guilty

plea, proceeded immediately to sentencing, and imposed the probationary

sentence provided for in the plea.

      On July 21, 2015, Cooper filed a pro se motion for partial expungement,

which the trial court denied on September 23, 2015. Subsequently, on April

24, 2017, Cooper filed a counseled petition for expungement, seeking to

expunge only the charges that were dismissed following her guilty plea. The

next day the trial court entered the following order, denying the motion:

            AND NOW, to wit, this 25th day of April, 2017, upon
      consideration of [Cooper’s] Second Pro Se Petition for
      Expungement dated April 24, 2017 as well as [the]
      Commonwealth’s response in opposition of April 25, 2017, [the]
      same is hereby DENIED. The September 23, 2015 Order of Court
      denying [Cooper’s] First Pro Se Petition for Expungement is
      hereby incorporated into this Order by reference as though fully
      set forth herein.

Order, April 25, 2017. It merits emphasis the April 24th petition was filed by

counsel, not pro se, and no response by the Commonwealth was docketed or

included in the certified record.

      On May 24, 2017, Cooper filed a motion for reconsideration.           In

response, on May 25, 2017, the trial court filed a notice of hearing on the

reconsideration motion, which it scheduled for June 19, 2017. See Notice of

Hearing, 5/25/2017. The hearing was later continued until June 26, 2017,

and subsequently, on August 7, 2017, the trial court entered an order denying




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Cooper’s motion for reconsideration.           Cooper filed a notice of appeal on

September 5, 2107.4

       Before we proceed to an examination of the substantive issues raised

by Cooper, we must first determine if the appeal was timely filed because our

jurisdiction is dependent upon “the filing of a timely notice of appeal.”5

Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007)

(quotation omitted), appeal denied, 960 A.2d 838 (Pa. 2008).

       It is well-settled a notice of appeal must be filed within 30 days of the

entry of the order from which the appeal is taken. See Pa.R.A.P. 903(a).

However, pursuant to Section 5505 of the Judicial Code, a trial court may

“modify or rescind any order within 30 days after its entry, … if no appeal from

such order had been taken or allowed.” 42 Pa.C.S. § 5505. This Court has

explained:

       “Under section 5505, the trial court has broad discretion to modify
       or rescind an order, and this power may be exercised sua
       sponte or invoked pursuant to a party’s motion for
       reconsideration.”   Haines v. Jones, 830 A.2d 579, 584
       (Pa.Super.2003). “[T]he trial court may consider a motion for
       reconsideration only if the motion for reconsideration is filed
       within thirty days of the entry of the disputed order.” Id. “The

____________________________________________


4 On September 26, 2017, the trial court ordered Cooper to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Cooper complied with the court’s directive, and filed a concise statement on
October 17, 2017.

5On January 3, 2018, this Court issued Cooper a Rule to Show Cause why the
appeal should not be quashed as untimely. Cooper filed a response to the
rule on January 16, 2018. Thereafter, on January 30, 2018, this Court entered
an order referring the issue to the merits panel.

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      mere filing of a motion for reconsideration, however, is insufficient
      to toll the appeal period.” Valley Forge Center Associates[ v.
      Rib-It/K.P., Inc.], 693 A.2d [242,] 245 [(Pa. Super. 1997)]. “If
      the trial court fails to grant reconsideration expressly within the
      prescribed 30 days, it loses the power to act upon both the
      [motion] and the original order.” Id.

PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 226 (Pa. Super. 2007).

See Pa.R.A.P. 1701(b)(3).         Accordingly, the filing of a motion for

reconsideration of an appealable order does not toll the 30-day appeal period

unless the trial court expressly grants reconsideration during that same 30-

day period. In Commonwealth v. Moir, 766 A.3d 1253 (Pa. Super. 2000),

a panel of this Court reiterated: “[A] trial court’s action in granting a rule to

show cause and setting a hearing date is insufficient to toll the appeal period.”

Id. at 1254. Furthermore, “[w]e have consistently held that the trial court

lacks jurisdiction to modify a sentence once the 30 day period for filing an

appeal has passed.” Commonwealth v. Gordon, 477 A.2d 1342, 1345 (Pa.

Super. 1984).

      This Court’s decision in Commonwealth v. Cook, 518 A.2d 858 (Pa.

Super. 1986), is instructive.   In that case, the appellee filed a petition to

expunge criminal records regarding a burglary conviction for which he had

entered a guilty plea. Although the trial court issued the Commonwealth a

rule to show cause why the petition should not be granted, the Commonwealth

did not respond to or oppose the petition, and the court entered an order

granting the petition on October 31, 1985. See id. at 858-859. Thereafter,

on December 27, 1985, the Pennsylvania State Police filed a petition for

reconsideration, asserting it did not receive timely notice of the expungement

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order. See id. at 859, 861. The trial court conducted a hearing on the matter,

and entered an order denying the petition for reconsideration on March 4,

1986. The Pennsylvania State Police then filed an appeal to this Court.

       On appeal, the Cook panel concluded, “while … the [trial] court

improperly granted appellee’s petition to expunge, we are without jurisdiction

to consider this appeal.” Id. at 861. Indeed, the panel explained that the

appellee did not meet any of the limited exceptions set forth in 18 Pa.C.S. §

9122, which permit the expungement of criminal history record information.6

See id. at 860. Nevertheless, the panel found that because the Pennsylvania

State Police did not timely appeal from the October 31, 1985, expungement

order, the panel was without jurisdiction to consider the appeal. See id. at

861.    With regard to the motion for reconsideration, and the trial court’s

subsequent order denying that motion, the panel opined:

              The Order granting the expungement petition was handed
       down on October 31, 1985, and [the Pennsylvania State Police]
       filed a Petition for Reconsideration and Rescission of the
       Expungement Order on December 27, 1985. A reconsideration
       hearing was held on February 13, 1986, and the Order denying
       [the] petition was handed down on March 4, 1986. Because the
       trial court was without authority to reconsider the petition beyond
       a thirty-day period, we must vacate the March 4, 1986 Order.

Id.


____________________________________________


6 Section 9122 permits the expungement of conviction data when the
defendant (1) reaches 70 years old and is free from arrest or prosecution for
10 years, (2) has been dead for three years, or (3) seeks to expunge a
summary conviction, and has been from arrest or prosecution for five years.
See 18 Pa.C.S. § 9122(b).

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      Here, the order denying Cooper’s petition for expungement was entered

on April 25, 2017, and docketed on April 26, 2017. Therefore, in order to

challenge that order, one of two actions had to be taken by the end of the 30-

day period, May 26, 2017: either (1) the trial court had to expressly grant

reconsideration and/or explicitly vacate the April 25th order, or (2) Cooper had

to file a notice of appeal.   Neither of these events took place during the

requisite 30-day period.    Rather, on May 24, 2017, Cooper filed a motion

seeking reconsideration of the court’s denial of her expungement petition and,

the next day, the trial court filed a notice scheduling a hearing on the motion.

The court did not vacate or expressly grant reconsideration of its April 25 th

order. Nor did Cooper file a notice of appeal, until after the trial court entered

an untimely order denying her motion for reconsideration. Under these facts,

Cooper’s appeal was untimely filed, and we have no jurisdiction to consider

her substantive claims.

      Nevertheless, in her various appellate filings, Cooper provides three

bases to support this Court’s jurisdiction over her appeal: (1) a trial court’s

inherent power to correct obvious mistakes outside of the 30-day appeal

period; (2) the language in Pa.R.Crim.P. 790(B), which allows a trial court to

grant a hearing following the Commonwealth’s objection to an expungement

petition; and (3) this Court’s authority to excuse a late filing when there has

been a breakdown in the trial court’s processes. See Cooper’s Brief at 1-2;

Cooper’s Reply Brief at 1-3; Cooper’s Memorandum of Law in Answer to Rule




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to Show Cause, 1/16/2018, at 5-7. None of these arguments provide a basis

for relief.

       First, Cooper asserts the trial court “possesses the inherent power to

correct obvious and patent mistakes beyond the expiration of the usual thirty-

day statutory limit imposed on the filing notices of appeal.” Cooper’s Brief at

2, citing Commonwealth v. Klein, 781 A.2d 1133 (Pa. Super. 2001). She

insists her reconsideration motion addressed certain incorrect facts upon

which the trial court “premised its denial[;]” specifically, the fact she had

completed her probation and restitution, and the fact she was represented by

counsel. Id. Cooper’s reliance on Klein is misplaced.

       In that case, the Pennsylvania Supreme Court reversed an order of this

Court quashing the defendant’s appeal as untimely filed. See Klein, supra,

781 A.2d at 1136. Two days after the defendant was sentenced on June 23,

1999, to time-served to one year imprisonment, the court learned that there

was an error in the defendant’s record concerning the calculation of his credit

for time-served. See id. at 1134. Accordingly, on June 25, 1999, the court

issued an order, sua sponte, directing the defendant to reappear for

sentencing on June 30, 1999; however, the court did not vacate the prior

sentencing order. Before the resentencing hearing, on June 28, 1999, the

defendant filed a notice of appeal from the June 23rd judgment of sentence.

Nevertheless, the resentencing hearing continued as scheduled, and, on June

30, 1999, the trial court corrected the calculation of time-served in the original




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sentencing order, but directed “[a]ll other aspects of the June 23rd order were

to remain in effect.” Id. (record citation omitted).

      A panel of this Court quashed the defendant’s appeal, reasoning the

court’s June 25th order “implicitly vacated” the June 23rd sentencing order,

and, therefore, the defendant filed an appeal from the wrong order.            Id.

However, the Supreme Court disagreed, noting, “this court has never

indicated that an order may ‘implicitly vacate’ an earlier order and § 5505

does not provide for such ambiguity.” Id. at 1135. Nevertheless, while the

defendant’s notice of appeal divested the trial court of jurisdiction to modify

its sentencing order after 30 days, the Supreme Court explained it was clear

the trial court’s intent was to sentence the defendant to serve one month in

prison, and the miscalculation of the time-served undermined that intent;

accordingly, the Court held “under the limited circumstances of this case, the

[trial] court could take further action in this matter since it was merely

correcting a patent defect or mistake in the record.” Id.

      Cooper’s attempt to justify the trial court’s actions herein as the

correction of a patent mistake fails. Unlike in Klein, here, Cooper did not file

a notice of appeal from the earlier order, which, on its face, denied Cooper’s

petition for expungement on the merits. Even if we were to conclude the trial

court did not thoroughly consider the relevant facts before denying Cooper’s

petition, that error is not the type of patent defect that would justify correction

by the trial court outside the 30-day period. Moreover, instantly, the court

did not simply issue an order correcting a mistake; rather, it scheduled a

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hearing,    and    later   issued    another   order   denying   Cooper’s   petition.

Accordingly, Klein does not provide Cooper with a basis for relief.

       Second, Cooper maintains the trial court properly granted a hearing

within the time prescribed by Pa.R.Crim.P. 790(B).7 See Cooper’s Reply Brief

at 1-2.     Pursuant to the rule, when a defendant files a petition for

expungement, the Commonwealth has 60 days to either consent, object or

take no action. See Pa.R.Crim.P. 790(B)(1). Subsection 790(B)(2) provides:

       (2) Upon receipt of the attorney for the Commonwealth’s
       response, or no later than 14 days after the expiration of the 60-
       day period in paragraph (B)(1), the judge shall grant or deny the
       petition or shall schedule a hearing.

Pa. R. Crim. P. 790(B)(2). Cooper insists:

       Consistent with the terms of the rule, within 14 days of its
       assertion that it received an objection from the Commonwealth,
       the Court first denied [her] application for expungement and then
       granted a hearing on it. The statute does not place any limit on
       what the Court may do during the intervening [60]-day period
       with regard to the alternatives available. Following the plain
       language of the Rule, since the Court granted a hearing within
       [60] days, the prior dismissal was extinguished. Thus, no final
       disposition of the expungement application pending outcome of
       the hearing activated an appeal deadline.

Reply Brief at 1 (footnote and record citation omitted).

       This argument fails based upon the holding in Klein. The April 25, 2017,

order denying Cooper’s petition for expungement was a final, appealable

____________________________________________


7We note Cooper mistakenly cites to Rule 791 in her reply brief. See Reply
Brief at 1. That Rule pertains to when a defendant seeks to limit access to,
and the dissemination of, her criminal history record. See Pa.R.Crim.P. 791.



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order. See Cook, supra. The court’s May 25, 2017, notice of a hearing did

not vacate the April 25, 2017, order either explicitly or implicitly. See Klein,

supra.     Therefore, in order to preserve her appellate rights, Cooper was

obligated to file a notice of appeal within 30 days of the April 25, 2017, order.

Her failure to do so divested this Court of jurisdiction. Nothing in the language

of Rule 790 extends the appeal period, nor does it require the trial court to

hold a hearing before granting or denying an expungement petition.

Accordingly, this claim fails.

       Lastly, in response to the show cause order, Cooper argued there was a

“breakdown in the administrative process” since the trial court’s April 25 th

order (1) mistakenly stated she was unrepresented, and (2) failed to perceive

the “circumstances leading to the dismissal of her prior petition had

changed[,]”     namely,     she    had    completed   her   probation.8   Cooper’s

Memorandum of Law in Answer to Rule to Show Cause, 1/16/2018, at 6.

       This Court has declined to quash “an otherwise untimely appeal if fraud

or breakdown in the trial court’s processes resulted in an untimely appeal.”

Commonwealth v. Khalil, 806 A.2d 415, 420 (Pa. Super. 2002), appeal

denied, 818 A.2d 503 (Pa. 2003). See also Commonwealth v. Braykovich,

664 A.2d 133, 137-138 (Pa. Super. 1995); Commonwealth v. Rodriguez,

____________________________________________


8 Cooper maintains the court’s denial of her first petition for expungement
was based on its concerns that (1) she was unrepresented by counsel, and
(2) she had not completed serving her probationary period. See Cooper’s
Memorandum of Law in Answer to Rule to Show Cause, 1/16/2018, at 3-4,
citing N.T., 8/25/2015, at 3-4, 8.

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174 A.3d 1130, 1138-1139 (Pa. Super. 2017), appeal denied, 186 A.3d 941

(Pa. 2018). However, in those cases, the “breakdown” occurred when the

clerk of court’s failed to notify the defendant that his timely-filed post-

sentence motion was denied by operation of law, but the defendant filed an

appeal within 30 days of the trial court’s belated order denying his post-

sentence motions. See Braykovich, supra, 664 A.2d at 138; Khalil, supra,

806 A.2d at 421; Rodriguez, supra, 174 A.3d at 1139. The Khalil Court

emphasized an order denying post-sentence motions by operation of law is

“important in two respects[:] it informs a defendant that the 30-day time

limit for direct appeal has begun, and … it appraises the defendant of his rights

on appeal.” Khalil, supra, 806 A.2d at 421.

      The facts in the present case are not similar to those in Khalil,

Braykovich, or Rodriguez. Cooper does not dispute that she received notice

of the trial court’s April 25, 2017, order denying her petition for expungement.

That order was final and appealable. The trial court did not vacate or modify

the order within the requisite 30-day period. The court’s notice of a hearing

on Cooper’s petition for reconsideration did not toll the appeal period. See

Moir, supra. Accordingly, Cooper was obligated to file a notice of appeal

within 30 days of the court’s April 25, 2017, order to preserve her appeal




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rights. Because she failed to do so, we have no jurisdiction to consider her

claims. Therefore, we are constrained to quash this appeal.9

       Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/19




____________________________________________


9 We note that even if we were permitted to review Cooper’s substantive
issues, we would agree with the ruling of the trial court that Cooper “is not
entitled to expungement according to [Commonwealth v.] Lutz[, 788 A.2d
993 (Pa. Super. 2001),] because her remaining charges were dismissed
pursuant to a negotiated guilty plea.” Trial Court Opinion, 5/8/2018, at 16.
See Lutz, supra, 788 A.2d at 1001 (holding a defendant is not entitled to
expungement of charges dismissed as part of plea agreement when defendant
was bound over for trial on all charges, Commonwealth was prepared to
proceed on all charges, and defendant admitted facts that “could essentially
constitute culpability for the dismissed charges”).


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