J-S57007-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
ANTHONY BRACY,                             :
                                           :
                   Appellant               : No. 2052 EDA 2013

            Appeal from the Judgment of Sentence May 23, 2013,
                Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0002885-2012

BEFORE: DONOHUE, MUNDY and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED OCTOBER 10, 2014

       Anthony Bracy (“Bracy”) appeals from the judgment of sentence

entered on May 23, 2013 by the Court of Common Pleas of Philadelphia

County, Criminal Division, following his convictions for aggravated assault,1

simple assault,2 and recklessly endangering another person.3 After careful

review, we quash this appeal as untimely.

       The trial court summarized the facts of this case as follows:

             On February 12, 2012, at approximately 5:30 p.m.,
             Ms. Anna Hann was in her home at 1109 Philmore
             Street in the City and County of Philadelphia. Ms.
             Hann and her then boyfriend, [Bracy], were arguing
             because she was supposed to take him somewhere,
             but [Bracy] felt she was taking too long to get ready.


1
    18 Pa.C.S.A. § 2702(a).
2
    18 Pa.C.S.A. § 2701(a)(1).
3
    18 Pa.C.S.A. § 2705.
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            While Ms. Hann was sitting on her bed, [Bracy] was
            pacing and getting angry with her. [Bracy] then put
            both hands around Ms. Hann’s throat, pushed her
            back onto the bed and, while on top of her, began
            strangling her. Ms. Hann could not breathe and
            unsuccessfully attempted to push [Bracy] off of her
            to get him to stop. She could not speak and was
            mouthing for him to stop. [Bracy] continued
            strangling Ms. Hann until she lost consciousness.
            When she woke up, Ms. Hann’s ears were ringing
            and she could not see well. Ms. Hann had hand
            prints on both sides of her neck and was bleeding on
            the right side of her neck. Following the incident, Ms.
            Hann drove [Bracy] to a different location and
            proceeded to the Philadelphia Police 15th District to
            file a report. Officer Pawlowski took down her
            information and noticed that Ms. Hann was visibly
            upset, was complaining of pain around her entire
            neck, and had visible injuries on the right side of her
            neck. Ms. Hann informed Officer Pawlowski that
            [Bracy] had choked her. Following her discussion
            with Officer Pawlowski, Ms. Hann obtained an
            emergency protection from abuse order against
            [Bracy].

            After spending the night of February 12 at a friend’s
            home, Ms. Hann returned to her apartment to gather
            some belongings on February 13. Ms. Hann was
            accompanied to her apartment by Philadelphia Police
            Officers Crosson and Putro. [T]he Officers entered
            the home first and found [Bracy] sitting on the couch
            inside. [Bracy] was then placed under arrest. Later
            that day, Detective Murray took Ms. Hann’s
            statement and took pictures of her visible injuries.

Trial Court Opinion, 12/19/13, at 2-3 (record citations omitted).

      On January 7, 2013, following trial, the trial court found Bracy guilty of

the above-referenced crimes.     On May 23, 2013, the trial court sentenced

Bracy to a total of seven to 14 years of incarceration. On June 24, 2013,




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Bracy filed a motion to modify sentence in which he asserted that his seven-

to 14-year sentence was excessive.      The trial court denied his motion to

modify sentence that same day. On July 22, 2013, Bracy filed a notice of

appeal. On August 20, 2013, the trial court ordered Bracy to file a concise

statement of errors complained of on appeal pursuant to Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure. On September 18, 2013, Bracy

timely filed his Rule 1925(b) statement.4

     On appeal, Bracy raises the following issue for our review: “Did not

the lower court err and abuse its discretion by imposing a sentence that was

manifestly excessive and relied on impermissible aggravating factors?”

Bracy’s Brief at 3. Before we address the merits of the issue Bracy purports

to raise, we must first contemplate whether he timely filed the present

appeal.   “It is well settled that the timeliness of an appeal implicates our

jurisdiction and may be considered sua sponte.”         Commonwealth v.

Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011).

     Rule 720(A)(1) of the Pennsylvania Rules of Criminal Procedure

provides: “(1) Except as provided in paragraphs (C) and (D), a written post-

sentence motion shall be filed no later than 10 days after imposition of

sentence.”    Pa.R.Crim.P. 720(A)(1).   The trial court sentenced Bracy to

seven to 14 years of incarceration on May 23, 2013. Under Rule 720(A)(1),



4
  The trial court ordered Bracy to file his 1925(b) statement on or before
September 19, 2013. Trial Court Order, 8/20/13.


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Bracy had 10 days from that date to file a post-sentence motion. Bracy filed

a motion to modify sentence on June 24, 2013, which the trial court denied

without a hearing that same day. Accordingly, Bracy’s post-sentence motion

was untimely. Bracy filed his notice of appeal on July 22, 2013, well more

than 30 days following the imposition of his sentence on May 23, 2013.

      In general, “[i]f the defendant does not file a timely post-sentence

motion, the defendant’s notice of appeal shall be filed within 30 days of

imposition of sentence[.]”   Pa.R.Crim.P. 720(A)(3).   However, pursuant to

Rule 720(A)(2), where a defendant does file a timely post-sentence motion,

he or she must file a notice of appeal:

            (a) within 30 days of the entry of the order deciding
            the motion;

            (b) within 30 days of the entry of the order denying
            the motion by operation of law in cases in which the
            judge fails to decide the motion; or

            (c) within 30 days of the entry of the order
            memorializing the withdrawal in cases in which the
            defendant withdraws the motion.

Pa.R.Crim.P. 720(A)(2). Based on subsections (2) and (3) of Rule 720(A),

this Court has held the following:

            [T]he time for filing an appeal can be extended
            beyond 30 days after the imposition of sentence
            only if the defendant files a timely post-sentence
            motion. The Comment to Rule 720 emphasizes this
            point as follows: ‘If no timely post-sentence motion
            is filed, the defendant’s appeal period begins to run
            from the date sentence is imposed.’ Thus, where the
            defendant does not file a timely post-sentence



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            motion, there is no basis to permit the filing of an
            appeal beyond 30 days after the imposition of
            sentence.

Commonwealth v. Dreves, 839 A.2d 1122, 1127 (Pa. Super. 2003) (en

banc).

      In this case, because Bracy did not file a timely post-sentence motion,

his appeal period began to run from the date the trial court imposed his

sentence, May 23, 2013. Therefore, Bracy’s notice of appeal, which he filed

on July 22, 2013, nearly two months after the imposition of his sentence,

was untimely.   See Pa.R.A.P. 903(a) (“Except as otherwise prescribed by

this rule, the notice of appeal required by Rule 902 (manner of taking

appeal) shall be filed within 30 days after the entry of the order from which

the appeal is taken.”).    Accordingly, we must quash Bracy’s appeal as

untimely.

      Bracy claims in his notice of appeal that the trial court endorsed his

post-sentence motion “approved for filing nunc pro tunc.” Notice of Appeal,

7/22/13. Our Court has recognized that “if no appeal had been taken, within

30 days after the imposition of sentence, the trial court has the discretion to

grant a request to file a post-sentence motion nunc pro tunc.” Dreves, 839

A.2d at 1128. This Court explained,

            To be entitled to file a post-sentence motion nunc
            pro tunc, a defendant must, within 30 days after the
            imposition of sentence, demonstrate sufficient cause,
            i.e., reasons that excuse the late filing. Merely
            designating a motion as ‘post-sentence motion nunc



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           pro tunc’ is not enough. When the defendant has
           met this burden and has shown sufficient cause, the
           trial court must then exercise its discretion in
           deciding whether to permit the defendant to file the
           post-sentence motion nunc pro tunc. If the trial court
           chooses to permit a defendant to file a post-sentence
           motion nunc pro tunc, the court must do so
           expressly. … Similarly, in order for a petition to file a
           post-sentence motion nunc pro tunc to be granted, a
           defendant must, within 30 days after the imposition
           of    sentence,   demonstrate      an    extraordinary
           circumstance which excuses the tardiness.

           If the trial court does not expressly grant nunc pro
           tunc relief, the time for filing an appeal is neither
           tolled nor extended. The request for nunc pro tunc
           relief is separate and distinct from the merits of the
           underlying post-sentence motion. The trial court’s
           resolution of the merits of the late post-sentence
           motion is no substitute for an order expressly
           granting nunc pro tunc relief. Also, when the trial
           court grants a request to file a post-sentence motion
           nunc pro tunc, the post-sentence motion filed as a
           result must be treated as though it were filed within
           the 10-day period following the imposition of
           sentence.

Id. at 1128-29 (internal citation and footnote omitted).

     We conclude that the instant case does not present a situation in

which Bracy filed a document seeking permission to file a post-sentence

motion nunc pro tunc wherein he provided the trial court with the reasons

why it should grant such permission.        Bracy entitled his post-sentence

motion “Motion to Modify Sentence.” Motion to Modify Sentence, 6/24/13.

In the motion, he did not seek permission to file an untimely post-sentence

motion nunc pro tunc and he did not provide the trial court with any reasons




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for why his post-sentence motion was untimely and why the trial court

should overlook that untimeliness. See Motion to Modify Sentence, 6/24/13.

Thus, the record does not reflect that Bracy presented the trial court with

any   reasons   for   the   untimeliness   of   his   post-sentence   motion   and

consequently, that the trial court considered whether those reasons were

sufficient for it to excuse the untimeliness of the motion. See Dreves, 839

A.2d at 1128-29.

      We further conclude that the trial court did not expressly grant Bracy

nunc pro tunc relief. Although Bracy asserts in his notice of appeal that the

trial court endorsed his post-sentence motion as “approved for filing nunc

pro tunc,” the certified record on appeal does not support this claim. See

Notice of Appeal, 7/22/13. The trial court, in its order denying Bracy’s post-

sentence motion, signed the order as “approved for filing.” See Trial Court

Order, 6/24/13. The trial court did not, as Bracy claims, endorse his post-

sentence motion as “approved for filing nunc pro tunc.”           See Notice of

Appeal, 7/22/13; Motion to Modify Sentence, 6/24/13. In fact, there is no

indication, on either Bracy’s post-sentence motion or the order denying that

post-sentence motion, that he was seeking or receiving nunc pro tunc relief.

See Trial Court Order, 6/24/13; Motion to Modify Sentence, 6/24/13. The

trial court did not even acknowledge that the post-sentence motion was

untimely. See Trial Court Order, 6/24/13. Therefore, the record does not

reflect that the trial court expressly granted Bracy permission to file a post-



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sentence motion nunc pro tunc.            See Dreves, 839 A.2d at 1128-29.

Because the trial court did not expressly grant Bracy nunc pro tunc relief, we

cannot treat his post-sentence motion as though it were filed within the 10-

day period following the imposition of sentence.           See Commonwealth v.

Wright, 846 A.2d 730, 733-34 (Pa. Super. 2004) (holding the appellant’s

post-sentence motion to be untimely where the appellant filed an untimely

post-sentence motion, the trial court ruled on the motion, and there was no

order expressly restoring his right to file a post-sentence motion nunc pro

tunc).

         Finally, we note that this is not a case in which the trial court failed to

inform or incorrectly informed Bracy of his appeal rights, where such a

failure    functioned   as   a   breakdown     in   the   court’s   operation.   See

Commonwealth v. Wright, 846 A.2d 730, 735 (Pa. Super. 2004) (holding

that the trial court must inform defendant of his appellate rights, including

the 30-day appeal period, and failure to do so makes quashal inappropriate).

The transcript of Bracy’s sentencing hearing reflects that his attorney

informed him, on the record, of his post-sentence and direct appeal rights,

as well as the time in which he had to file a post-sentence motion or direct

appeal. N.T., 5/23/13, at 12-13.

         Appeal quashed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2014




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