J-S33020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

MELISSA LYNN SHEARER,

                          Appellant                No. 1261 WDA 2015


            Appeal from the Judgment of Sentence of June 17, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002907-2014

BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.

JUDGMENT ORDER BY OLSON, J.:                          FILED MAY 18, 2016

        Appellant, Melissa Lynn Shearer, appeals from the judgment of

sentence entered on June 17, 2015. We quash.

        As our resolution of this case is based solely upon the procedural

posture of this matter, we focus on the procedural history of this case. On

November 20, 2014, Appellant was charged via criminal information with

simple assault1 and harassment.2 At the conclusion of a bench trial held on

April 23, 2015, Appellant was found guilty of both charges.    On June 17,

2015, Appellant was sentenced in absentia to an aggregate term of two

years’ intermediate punishment, including two days’ imprisonment. On July

7, 2015, Appellant filed a post-sentence motion. On July 28, 2015, the trial


1
    18 Pa.C.S.A. § 2701(a)(1).
2
    18 Pa.C.S.A. § 2709(a)(1).


* Former Justice specially assigned to the Superior Court
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court denied that motion. On August, 11, 2015, Appellant filed the instant

notice of appeal.

      Appellant presents two issues for our review:

         1. [Was] the verdict in this case [] against the weight
         of the evidence . . .[?]

         2. [Was] the sentence in this case [] manifestly
         excessive and clearly unreasonable. . .[?]

Appellant’s Brief at 2 (complete capitalization omitted).

      Before we consider the merits of Appellant’s issues, we first consider

whether the notice of appeal was timely filed.      It is well-settled that this

Court lacks jurisdiction over untimely appeals and that we have the

obligation to raise such jurisdictional concerns sua sponte. Commonwealth

v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014). “[A] notice 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). In criminal cases, the order appealed from is the

judgment of sentence.     Commonwealth v. Borrero, 692 A.2d 158, 159

(Pa. Super. 1997) (citation omitted). However, the 30-day appeal period is

tolled by the timely filing of a post-sentence motion.            Pa.R.Crim.P.

720(A)(2).

      In this case, Appellant’s post-sentence motion was untimely. A post-

sentence motion must be filed within ten days of the judgment of sentence.

Pa.R.Crim.P. 720(A)(1). As the trial court sentenced Appellant on June 17,

2015, and June 27, 2015 fell on a Saturday, her post-sentence motion was



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due on Monday, June 29, 2015. Appellant’s post-sentence motion was not

filed until July 7, 2015.

      “If 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, as this Court stated:

      Under Commonwealth v. Dreves, 839 A.2d 1122[ ] (Pa.
      Super. 2003) (en banc), a post-sentence motion nunc pro tunc
      may toll the appeal period, but only if two conditions are met.
      First, within 30 days of imposition of sentence, a defendant must
      request the trial court to consider a post-sentence motion nunc
      pro tunc. The request for nunc pro tunc relief is separate and
      distinct from the merits of the underlying post-sentence motion.
      Second, the trial court must expressly permit the filing of a post-
      sentence motion nunc pro tunc, also within 30 days of imposition
      of sentence. If the trial court does not expressly grant nunc pro
      tunc relief, the time for filing an appeal is neither tolled nor
      extended. Moreover, 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.

Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015)

(internal alteration, quotation marks, and citations omitted).

      In this case, Appellant failed to satisfy both requirements under

Dreves. She did not seek permission to file a post-sentence motion nunc

pro tunc and the trial court did not grant her such permission.      Thus, the

filing of Appellant’s untimely post-sentence motion did not toll the 30-day

appeal period. Her notice of appeal was due on or before July 17, 2015 but

was not filed until August 11, 2015. Accordingly, her notice of appeal was

untimely and we lack jurisdiction over this appeal.

      Appeal quashed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/18/2016




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