J-A25025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

RAUL AND TANNIA A. JAUREGUI

                            Appellants                   No. 77 EDA 2015


            Appeal from the Judgment of Sentence October 8, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-SA-0000705-2014


BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                           FILED DECEMBER 01, 2015

        Appellants, Raul Jauregui and Tannia A. Jauregui, appeal pro se1 from

the October 8, 2014 aggregate judgment of sentence, imposing a $100.00

fine after Appellants were found guilty on two summary parking citations for

leaving an unattended vehicle on private property in violation of 75

Pa.C.S.A. § 3353(b)(1).         After careful review, we quash the appeal as

untimely.

        We summarize the procedural history of this case as gleaned from the

certified record as follows.        On June 26, 2014, Appellants filed a timely

notice of summary appeal to the Delaware County Court of Common Pleas

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    Raul Jauregui and Tannia A. Jauregui are both attorneys.
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from two summary traffic convictions for violations of Section 3353(b)(1).2

The trial court held a de novo hearing on October 8, 2014, at the conclusion

of which it found Appellants guilty and imposed a $50.00 fine for each

citation. On October 15, 2014, Appellants filed a motion for reconsideration,

which included an alternative request for the trial court to certify its October

8, 2014 judgment of sentence “final and ready for appeal.”           Motion for

Reconsideration, 10/15/14, at 2. On October 17, 2014, the trial court issued

an order granting the motion for reconsideration and denying the motion to

certify the judgment of sentence appealable. The trial court scheduled the

matter for a hearing but did not vacate its judgment of sentence. Following

a hearing on the motion to reconsider, held December 2, 2014, the trial

court issued an order on December 3, 2014 denying the motion for

reconsideration. Appellants filed a notice of appeal on December 31, 2014.3

       On appeal, Appellants challenge the sufficiency of the evidence and the

trial court’s interpretation of 75 Pa.C.S.A. § 3353(b)(1). Appellants’ Brief at

7.   On February 4, 2015, this Court issued a rule to show cause upon

Appellants to show why the appeal should not be quashed as untimely. Per

Curiam Order, 2/4/15, at 1.          Appellants responded on February 18, 2015.

Thereafter, this Court discharged the rule, referring the disposition of the
____________________________________________
2
  Two other summary parking convictions were appealed to the court of
common pleas but are not the subject of this appeal.
3
  Appellants and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.


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issue to this panel.   Per Curiam Order, 2/25/15, at 1.          In its brief, the

Commonwealth challenges the timeliness of Appellants’ appeal.                    The

Commonwealth contends that the imposition of the fine on Appellants on

October 8, 2014, was a final judgment of sentence and any appeal was

required to be filed within 30 days.          Commonwealth’s Brief at 7, citing

Pa.R.A.P. 903(a).

           In order to invoke our appellate jurisdiction,
           Pennsylvania Rule of Appellate Procedure 903
           requires that all “notice[s] of appeal … shall be filed
           within 30 days after the entry of the order from
           which the appeal is taken.”           Pa.R.A.P. 903(a).
           Because this filing period is jurisdictional in nature, it
           must be strictly construed and “may not be extended
           as    a    matter     of    indulgence      or    grace.”
           Commonwealth v. Pena, 31 A.3d 704, 706 (Pa.
           Super. 2011) (citation omitted).

           In general, appeals are properly taken from final
           orders. See Pa.R.A.P. 341(b)(2) (stating an appeal
           lies from an order that “is expressly defined as a
           final order by statute[ ]”).

Commonwealth v. Gaines, --- A.3d ---, 2015 WL 6750071, at *2 (Pa.

Super. 2015) (en banc) (plurality opinion).

     The   Commonwealth       further    notes    that   Appellants’    motion   for

reconsideration did not operate to toll the appeal period because there is no

provision for post-sentence motions following a de novo summary appeal

conviction. Id. at 6, citing Pa.R.Crim.P. 720(D) (“[t]here shall be no post-

sentence motion in summary case appeals following a trial de novo in the

court of common pleas. The imposition of sentence immediately following a


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determination of guilt at the conclusion of the trial de novo shall constitute a

final order for purposes of appeal”).    Because Appellants did not file their

notice of appeal until December 31, 2014, 84 days following the judgment of

sentence, the Commonwealth asserts Appellants’ appeal is untimely and

should be quashed. Commonwealth’s Brief at 6.

      Although the filing of a post-sentence motion for reconsideration

following a summary appeal conviction does not in itself toll the appeal

period, Appellants point out that the comment to Rule 720(D) states

“nothing in this rule is intended to preclude the trial judge from acting on a

defendant’s petition for reconsideration.”     Appellants’ Answer to Rule to

Show Cause, 2/18/15 at 2, quoting Pa.R.Crim.P. 720 Comment, citing 42

Pa.C.S.A. § 5505 (providing “a court upon notice to the parties may modify

or rescind any order within 30 days after its entry … if no appeal from such

order has been taken or allowed”).      Therefore, such reconsideration would

normally not toll the appeal period unless the trial court, prior to the

expiration of 30 days, granted the petition for reconsideration and vacated

its judgment of sentence pending its consideration of the merits of the relief

sought.   See Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa.

Super. 2001) (noting “ when a trial court purports to extend the time for

appeal to thirty days after the disposition of the motion for reconsideration

without vacating its sentence, this error does not affect the running of the

time of appeal”). Instantly, the trial court responded to Appellants’ motion


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to reconsider by purporting to grant reconsideration, but declining to vacate

its judgment of sentence and thereby toll the period for appeal. Trial Court

Order, 10/17/14.

      Appellants alternatively argue that the trial court did not properly

advise them of their appeal rights by refusing their motion to certify.

Appellants’ Answer to Rule to Show Cause, 2/18/15, at 4-5. Although the

trial court denied Appellants’ contemporaneous request to certify the

appealability of the trial court’s October 8, 2014 judgment of sentence, we

note that this request was unnecessary, because, as stated above, the

judgment of sentence was a final order. We conclude that the trial court, by

refusing to grant Appellants’ motion to certify, was merely declining to take

action on a moot request and did not affect the appealability of Appellants’

judgment of sentence as a final order, which the trial court explicitly kept in

effect.   This is not a case, as argued by Appellants, where the trial court

gave Appellants erroneous advice or instructions about the time for appeal

as to be considered a breakdown of the court’s operation. Cf. Coolbaugh,

supra (declining to quash an appeal as untimely where the revocation

court’s misadvising appellant that the filing of a post-sentence motion would

extend the appeal period was a breakdown of the court’s operation).

      Instantly, the trial court’s October 17, 2014 order did not toll the 30

days Appellants had to appeal their judgments of sentence. The trial court

lost jurisdiction to modify its order after the appeal period expired. Because


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Appellants’ notice of appeal was untimely filed, we lack jurisdiction to

address it. See Gaines, supra. Accordingly, we are constrained to quash

the instant appeal as untimely.

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2015




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