J-S68008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RUBEN RICHARD CRAIG, III                   :
                                               :
                       Appellant               :   No. 203 WDA 2019

               Appeal from the Order Entered September 14, 2018
      In the Court of Common Pleas of Venango County Criminal Division at
                        No(s): CP-61-CR-0000597-2016


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                         FILED JANUARY 27, 2020

        Ruben Richard Craig, III (Craig) appeals1 from the September 14, 2018

order of the Court of Common Pleas of Venango County (trial court) denying



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 On March 5, 2019, this court issued a Rule to Show Cause why the appeal
should not be quashed as untimely as the trial court denied Craig’s petition on
September 14, 2018, and Craig’s pro se notice of appeal was not time stamped
by the Prothonotary until December 3, 2018. Craig filed a response arguing
that the prisoner mailbox rule applied because he gave his notice of appeal to
prison authorities for mailing on September 27, 2018. A review of the certified
record reveals a DC-138A cash slip from that date, signed by a prison official,
indicating that he purchased postage for the notice of appeal on that date.
The cash slip lists the trial court docket number for this case and was included
with the notice of appeal when filed. Based on this evidence, the appeal was
timely filed pursuant to the prisoner mailbox rule. Smith v. Pa. Bd. of
Probation & Parole, 683 A.2d 278, 282 (Pa. 1996).
J-S68008-19


his motion for allowance of appeal nunc pro tunc. After careful review, we

affirm.

                                               I.

        A detailed recitation of the facts underlying Craig’s conviction is

unnecessary as only the procedural history of his case is relevant to his sole

issue on appeal. In August 2017, Craig was convicted following a jury trial of,

inter alia, attempted homicide.2          Craig represented himself pro se, with

standby counsel, during his trial and sentencing proceedings and has

proceeded pro se on appeal. On October 3, 2017, the trial court sentenced

Craig to 20 to 40 years’ incarceration. On October 17, 2017, Craig filed a

post-sentence motion and the trial court denied the motion the next day. 3




____________________________________________


2   18 Pa.C.S. § 901(a), 2501.

3 This is the date on which the post-sentence motion was docketed by the trial
court. A post-sentence motion must be filed within ten days of the imposition
of the sentence, and an untimely motion will not toll the 30-day period within
which the defendant must file his notice of appeal. See Pa.R.Crim.P.
720(A)(1); Pa.R.A.P. 903(a), (c)(3). The trial court found in its opinion that
this motion was untimely. However, the certified record contains the envelope
in which Craig mailed the post-sentence motion, which bears a postmark date
of October 11, 2017. As discussed in more detail infra, the prisoner mailbox
rule deems a pro se prisoner’s legal filings as filed on the date they are
delivered to prison authorities for mailing.       See Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa. Super. 2011); Pa.R.A.P. 121(a). Because the
post-sentence motion was placed in the mail on October 11, 2017, before the
ten-day filing period had expired, the motion was timely under the prisoner
mailbox rule.


                                           -2-
J-S68008-19


Accordingly, Craig had 30 days, or until November 17, 2017, to file his notice

of appeal. See Pa.R.A.P. 903(a).

      Craig sent numerous letters to the trial court after his post-sentence

motion was denied. The first, dated November 1, 2017, requested copies of

his docket sheet, as they were “needed promptly for filing an appeal.” See

Letter, 11/1/17. The next letter, dated November 2, 2017, requested a copy

of his sentencing order. See Letter, 11/2/17. Both letters were postmarked

the day after they were dated.     The first letter was time-stamped by the

Prothonotary on November 9, 2017, and the second letter was time-stamped

on November 6, 2017.

      Next, Craig sent a letter dated November 28, 2017, and postmarked

December 1, 2017, that requested a time-stamped copy of his notice of appeal

and included a motion for transcripts. See Letter, 11/28/17. The letter states

in part:

      I realized that the mailing I sent which included my notice of
      appeal for 597 of 201[5] is marked on the docket entries as “Letter
      from Defendant” – 1 and 2. There is no entry marking receipt of
      my notice of appeal. This notice was on a double-sided piece of
      paper, out of necessity. Its failure to have a docket entry is
      concerning.

It appears that the Prothonotary’s office wrote “no appl filed” on the form

request for transcripts that was included with this letter. On December 21,

2017, the trial court issued an order denying the request for transcripts as no

appeal had been filed.    The Prothonotary sent another letter to Craig on

December 28, 2017, stating that multiple staff members had checked both

                                     -3-
J-S68008-19


sides of all filings in his pending cases and did not find a notice of appeal. The

notice of appeal that Craig purportedly mailed to the trial court in November

2017 has never been received.

       Craig then filed a notice of appeal with a certificate of service dated

January 24, 2018, which was docketed by the Prothonotary on February 1,

2018. Craig’s direct appeal proceeded from this notice of appeal. This court

subsequently dismissed the appeal as untimely but without prejudice for Craig

to seek reinstatement of his appellate rights nunc pro tunc in the trial court.

       Craig then filed the instant motion for allowance of appeal nunc pro tunc.

At a June 19, 2018 hearing, Craig represented that he timely delivered his

notice of appeal to prison authorities for mailing on November 2, 2017, and

argued that the prisoner mailbox rule applied to the filing. Notes of Testimony,

6/19/18, at 7. His sole argument then was that he did timely file the notice

of appeal, but a breakdown in the mailing system or operations of the court

prevented it from being docketed. In support, he offered a copy of a cash slip

dated November 2, 2017, that he had marked as “notice of appeal.”4 Id. at

10.   He did not have a copy of the notice of appeal at the hearing but

represented that he had a “template” notice of appeal with his belongings in

prison. Id. at 11.



____________________________________________


4 We note that the cash slip says “Legal Mail (NoA 2017/11/02)” above Craig’s
signature and bears the address of the trial court Prothonotary.


                                           -4-
J-S68008-19


      The trial court noted that the Prothonotary had received mail from Craig

dated November 2, 2017, and asked whether he had additional cash slips

proving that he had sent multiple pieces of mail on that day. Id. at 12. Craig

said that he did not bring any additional cash slips to the hearing and may

have more from that date in prison. He believed the one he had produced

was for the notice of appeal because of the notation that appeared on it.

      At the hearing, the district attorney presented a notice of appeal his

office had received from Craig on November 16, 2017. Id. at 16. The notice

had been mailed to his office directly and was undated and printed on one-

sided paper. Id. at 16-17, 23. He did not have the envelope that the notice

had been mailed in.     The district attorney argued that Craig’s letter dated

November 1, 2017, requested information that was “needed promptly for filing

an appeal,” suggesting that Craig did not have the necessary materials to file

a notice of appeal ready the very next day. See Letter, 11/1/17.

      Based on all the evidence presented at the hearing, the trial court

determined that Craig had negligently failed to file his notice of appeal. The

trial court did not find the cash slip to be credible evidence that Craig filed the

notice, as opposed to any of the letters related to the notice that he mailed

around that time. The trial court found that the evidence suggested, at best,

that Craig negligently sent his notice of appeal to the district attorney’s office

and not the Prothonotary. As a result, it denied the petition for allowance of




                                       -5-
J-S68008-19


appeal nunc pro tunc. Craig appealed the order and he and the trial court

have complied with Pa.R.A.P. 1925.

                                       II.

      Craig’s sole issue on appeal concerns the trial court’s denial of his motion

for allowance of appeal nunc pro tunc. We evaluate the trial court’s order

denying such a motion for an abuse of discretion. Commonwealth v. Stock,

679 A.2d 760, 762 (Pa. 1996).

      “Time limitations for taking appeals are strictly construed and cannot be

extended as a matter of grace.” Commonwealth v. Burks, 102 A.3d 497,

500 (Pa. Super. 2014) (citation omitted).       “[A]n appeal nunc pro tunc is

intended as a remedy to vindicate the right to an appeal where that right has

been lost due to certain extraordinary circumstances.” Stock, supra, at 764.

The time for filing an appeal may only be extended in extraordinary

circumstances such as fraud, ineffectiveness of counsel or a breakdown in the

operations of the court. Id. at 763-64. An appellant’s negligence does not

excuse the failure to file a timely notice of appeal. Thus,

      Where an appeal is not timely because of non-negligent
      circumstances . . . and the appeal is filed within a short time after
      the appellant or his counsel learns of and has an opportunity to
      address the untimeliness, and the time period which elapses is of
      very short duration, and appellee is not prejudiced by the delay,
      the court may allow an appeal nunc pro tunc.

Fischer v. UPMC Northwest, 34 A.3d 115, 122 (Pa. Super. 2011) (internal

quotations and emphasis omitted).




                                      -6-
J-S68008-19


      Craig argues that he timely filed his notice of appeal pursuant to the

prisoner mailbox rule, and that its failure to be delivered to the Prothonotary

for docketing was not a result of his own negligence. The prisoner mailbox

rule provides:

      A pro se filing submitted by a prisoner incarcerated in a
      correctional facility is deemed filed as of the date it is delivered to
      the prison authorities for purposes of mailing or placed in the
      institutional mailbox, as evidenced by a properly executed
      prisoner cash slip or other reasonably verifiable evidence of the
      date that the prisoner deposited the pro se filing with the prison
      authorities.

Pa.R.A.P. 121(a).    “Reasonably verifiable evidence” of timely mailing may

include a cash slip, certificate of mailing, certified mail form or affidavit of date

of deposit with prison authorities. Commonwealth v. Jones, 700 A.2d 423,

426 (Pa. 1997).

      In Thomas v. Elash, 781 A.2d 170 (Pa. Super. 2001), this court

addressed whether the prisoner mailbox rule applies when timely post-trial

motions were mailed from prison but not received by the court. We held that

“an incarcerated litigant must supply sufficient proof of the date of mailing,”

and noted that the proof of service in that case, which was not notarized, may

not have met the appellant’s burden. Id. at 176. We ultimately determined

that remand for an evidentiary hearing and factual determination by the trial

court was unnecessary under the circumstances of that case, but would be

the correct procedure in a case where timeliness was in dispute. Id.; see

also Jones, supra, at 426 n.3 (“Where, however, the facts concerning


                                        -7-
J-S68008-19


timeliness are in dispute, a remand for an evidentiary hearing may be

warranted.”). “Whether [an] appellant actually deposited the notice in the

prison mail system by [the deadline] is a factual question.” Commonwealth

v. Cooper, 710 A.2d 76, 79 (Pa. Super. 1998).

      Here, the trial court conducted an evidentiary hearing and made factual

findings on the timeliness of Craig’s notice of appeal. At the hearing, Craig

argued that the trial court was bound to accept his cash slip and

representations about its purpose on its face and that the Commonwealth had

the burden of disproving those representations. This does not comport with

Thomas, supra, where we held that the incarcerated litigant bears the

burden of proving timeliness. Moreover, we disagree with Craig’s assertion

that once a cash slip is presented, the trial court is obligated to treat it as

proof positive that the disputed mailing was sent.          In making factual

determinations regarding timeliness, the trial court is permitted to make

credibility determinations based on all facts of record.

      Here again, the cash slip was not the sole fact of record. The trial court

considered the other circumstances arising in November 2017 when Craig

asserts he mailed his notice of appeal. First, on November 2, 2017, the date

that appears on the cash slip, Craig sent a letter to the Prothonotary

requesting a copy of his sentencing order. On November 1, 2017, Craig sent

a letter to the Prothonotary requesting a copy of his docket sheet, as it was

“needed promptly for filing an appeal.”     See Letter, 11/1/17.     This letter


                                     -8-
J-S68008-19


suggests that as of November 1, 2017, Craig was merely preparing to file a

notice of appeal but had not yet done so.          Both of these letters were

postmarked and received by the Prothonotary shortly after Craig placed them

in the mail.

       Second, the district attorney presented an undated document titled

“notice of appeal” that his office had received from Craig on or about

November 16, 2017.5 Third, Craig’s letter of November 28, 2017, requesting

a time-stamped copy of his notice of appeal indicated that the notice had been

filed on a double-sided sheet of paper. The trial court and its Prothonotary

searched the court records for the notice or any double-sided filings and were

unable to locate any such filing. Finally, the notice of appeal did not arrive in

the mail at any later point in the history of this case, despite the fact that the

letters Craig mailed in November and December 2017 were promptly delivered

to the Prothonotary.

       A prisoner benefits from the prisoner mailbox rule only when he actually

deposits a filing for mailing with the prison authorities within the deadline for

filing and provides sufficient evidence of that fact. Based on all the facts of

record, the trial court determined that Craig’s cash slip was not credible



____________________________________________


5 In addition to filing the notice of appeal and serving it on all parties to the
underlying action, an appellant must serve a copy of the notice of appeal on
the trial court judge. See Pa.R.A.P. 906(a)(2). While the district attorney’s
office in this case received an undated notice of appeal, there is nothing in the
record indicating that the trial court was served with the notice.

                                           -9-
J-S68008-19


evidence that he had mailed a notice of appeal on November 2, 2017, but

rather confirmed only that he had mailed another letter pertaining to his

appeal on that date.     Craig did not provide any additional cash slips to

substantiate his claim that he had mailed several envelopes to the

Prothonotary on that day. All of Craig’s other mailings were delivered without

incident, including the letter he deposited on November 2, 2017, and their

postmarks and delivery dates align with the dates on the included documents

and cash slips.

      We also note that Craig first became aware that his appeal may not have

been docketed on November 28, 2017, as evidenced by his letter to the

Prothonotary on that date. He received further confirmation of this fact via a

letter from the Prothonotary informing him that no notice of appeal had been

filed on December 28, 2017. Nevertheless, he waited until January 24, 2018,

to file his next notice of appeal. As noted in Fischer, supra, an appellant

seeking to appeal nunc pro tunc must not only prove non-negligent

circumstances, but also that he remedied the delay by filing a new notice or

seeking relief after only a “very short duration” of time.

      Under these circumstances, the trial court’s determination that Craig

negligently failed to file his notice of appeal by the November 17, 2017

deadline is supported by the record and we will not disturb it on appeal. The

trial court did not abuse its discretion in denying Craig’s motion for allowance

of appeal nunc pro tunc.


                                     - 10 -
J-S68008-19


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2020




                          - 11 -
