J-S66026-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                        Appellee        :
                                        :
            v.                          :
                                        :
SANDY LEE PHILLIPPY,                    :
                                        :
                        Appellant       :     No. 806 MDA 2014


         Appeal from the Judgment of Sentence Entered April 2, 2014,
             In the Court of Common Pleas of Schuylkill County,
             Criminal Division, at No. CP-54-SA-0000024-2014.

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED OCTOBER 21, 2014

     Appellant, Sandy Lee Phillippy,1 appeals from the judgment of

sentence entered following her summary conviction of harassment.         We

quash.

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

           [Appellant] and her deceased husband, Jeff, were friends
     with Joanne Wenrich (“[the Victim]”) and her husband, Tim
     Wenrich. [Appellant] and her husband had a Yorkshire Terrier
     named “Jade”. Commonwealth Exhibit No. 2[,] which is a hand-
     written letter from [Appellant] to the Victim and her husband
     dated September 22, 2013, confirming that [Appellant] and her
     deceased husband had given Jade to the Wenrichs as a gift
     because [of Appellant’s] and her then living husband’s inability
     to care for the dog. Later, beginning on December 2, 2013,
     [Appellant] sent Commonwealth Exhibit No. 1 to both Wenrichs.
     The same is self-explanative, and acknowledges that the dog is
     owned by the Wenrichs. Afterwards, [Appellant] claimed she


1
  We note that throughout the certified record before this Court, Appellant’s
last name is spelled either Phillippy or Phillipy.
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     had a right to visit the Victim to see Jade.         Albeit, in
     Commonwealth Exhibit No. 1, [Appellant] concludes the letter by
     stating: “I did not shoot my late husband, Jeffrey Phillipy, like
     you both said I did.”

           In addition to submitting Commonwealth Exhibits 1 and 2,
     the Commonwealth also submitted Exhibit No. 3 which are
     photographs of some of the text messages at issue sent by the
     Victim and [Appellant]. The initial text message was sent from
     the Victim to [Appellant] stating: “Don’t try contacting me.” This
     text was sent by the Victim to [Appellant] after the Victim had
     attempted to contact [Appellant] via telephone and left a
     recorded message for [Appellant] indicating the Victim’s desire
     not to have any contact with [Appellant]. The remaining four
     photographs of Exhibit 3 are photocopies of [Appellant’s]
     response to the Victim’s aforementioned text.                 The
     Commonwealth introduced testimony of the Victim and Corporal
     Christopher Cruz (“Cruz”) of the Pine Grove Borough Police
     Department who had been with the Pine Grove Police
     Department for three (3) years while also being employed part-
     time with two other County police departments; namely, Hegins
     Township and Tamaqua Borough.

            The Victim testified that she had left a recorded message
     on [Appellant’s] cell phone and sent a text message to
     [Appellant] that the Victim desired not to have any contact with
     [Appellant], that [Appellant] then began sending twelve (12) to
     fifteen (15) text messages over seven to eight days to the Victim
     in which [Appellant] stated among other things: “Pot calling the
     kettle black. I did not shoot my husband as you two say I did.
     What’s Tim's disability for? Is it for his back? Well, I have
     evidence.”     Thereafter, the Victim reported this course of
     conduct to Cruz. The Victim texted [Appellant] to stop that she
     wanted no further contact, but [Appellant] persisted. The text
     messages were about [Appellant’s] desire to see Jade at the
     Victim’s house, but [Appellant] continued to text that [Appellant]
     didn’t kill her husband and that the Wenrichs accused
     [Appellant] of shooting her deceased husband.            The text
     messages continued until the day of the hearing before the
     Magisterial District Judge (MDJ) after Cruz had filed the instant
     charges with the MDJ. They continued for a period of seven (7)
     to eight (8) days, thereby alarming the Victim because of the


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      allegations about the Victim making statements about
      [Appellant’s] deceased husband and the personal claims of
      having evidence against the Victim’s husband for disability.
      Cruz’s testimony confirmed and substantiates the Victim’s
      testimony.

Trial Court Opinion, 6/25/14, at 3-5.

      We summarize the relevant procedural history of this case as follows.

On April 2, 2014, following a de novo trial, Appellant was convicted of the

summary offense of harassment and was sentenced to pay the fines and

costs of prosecution as had been previously set forth by the magisterial

district judge. On May 5, 2014, Appellant filed this appeal.

      On May 5, 2014, the trial court entered an order directing Appellant to

file a statement pursuant to Pennsylvania Rule of Appellate Procedure

1925(b) within twenty-five days.        Appellant filed her Pa.R.A.P. 1925(b)

statement on May 15, 2014.       On June 25, 2014, the trial court filed its

opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant presents the following issues in her appellate brief for our

review, which we reproduce verbatim:

      a. On appeal is the Final Order of the Honorable Judge Charles
      M. Miller whom on April 2, 2014, found the Appellant Guilty of
      Harassment Pa. C.S. § 2709 (a) (3), after a summary trial was
      held?

      b. Whether the Commonwealth has failed to establish beyond a
      reasonable doubt the elements necessary to sustain a conviction
      under Pa. C. S. § 2709 (a) (3)?




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       c. The appeal also challenges the sufficiency of the evidence
       proffered by the Commonwealth to sustain a conviction of
       Harassment.

Appellant’s Brief at 3.

       Before we review the issues presented by Appellant, we must address

the timeliness of this appeal because it appears that Appellant filed her

notice of appeal beyond the period permitted by law.             The question of

timeliness of an appeal is jurisdictional. Commonwealth v. Moir, 766 A.2d

1253, 1254 (Pa. Super. 2000).         Time limitations on appeal periods are

strictly   construed   and   cannot   be    extended   as   a   matter   of   grace.

Commonwealth v. Perez, 799 A.2d 848, 851 (Pa. Super. 2002) (citing

Commonwealth v. Hottinger, 537 A.2d 1, 3 (Pa. Super. 1987)). See also

Pa.R.A.P. 105(b) (stating that, although an appellate court may enlarge the

time prescribed in the rules of appellate procedure for good cause shown,

the court may not enlarge the time for filing a notice of appeal).

       The time limit for the filing of challenges to a judgment of sentence is

set out in the Judicial Code as follows:

       § 5571. Appeals generally

       (a) General rule.—The time for filing an appeal, a petition for
       allowance of appeal, a petition for permission to appeal or a
       petition for review of a quasi-judicial order, in the Supreme
       Court, the Superior Court or the Commonwealth Court shall be
       governed by general rules.         No other provision of this
       subchapter shall be applicable to matters subject to this
       subsection.



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42 Pa.C.S. § 5571(a) (emphasis added).

     The relevant Rules of Appellate Procedure promulgated by the

Pennsylvania Supreme Court provide as follows:

     Rule 902. Manner of Taking Appeal

           An appeal permitted by law as of right from a lower
     court to an appellate court shall be taken by filing a notice
     of appeal with the clerk of the lower court within the time
     allowed by Rule 903 (time for appeal).               Failure of an
     appellant to take any step other than the timely filing of a notice
     of appeal does not affect the validity of the appeal, but it is
     subject to such action as the appellate court deems appropriate,
     which may include, but is not limited to, remand of the matter to
     the lower court so that the omitted procedural step may be
     taken.

Pa.R.A.P. 902 (emphasis added).

     Rule 903. Time for Appeal

     (a) General Rule. 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.

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

     Rule 905. Filing of Notice of Appeal

           (a) Filing with clerk.

           (1) Two copies of the notice of appeal, the order for
     transcript, if any, and the proof of service required by Rule 906
     (service of notice of appeal), shall be filed with the clerk of
     the trial court. . . .

                                     ***




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           (4) If a notice of appeal is mistakenly filed in an
      appellate court, or is otherwise filed in an incorrect office
      within the unified judicial system, the clerk shall
      immediately stamp it with the date of receipt and transmit
      it to the clerk of the court which entered the order
      appealed from, and upon payment of an additional filing fee
      the notice of appeal shall be deemed filed in the trial court
      on the date originally filed.

Pa.R.A.P. 905(a)(1), (4) (emphasis added).

      In addition, we are mindful that Rule 720(D) of the Pennsylvania Rules

of Criminal Procedure addresses post-sentence procedures in summary

appeals and provides that “[t]he imposition of sentence immediately

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

constitute a final order for purposes of appeal.”      The Comment to Rule

720(D) further instructs that “[t]he time for appeal in summary cases

following a trial de novo runs from the imposition of sentence.”

      Our review of the certified record in this matter reflects the trial court

held a de novo hearing on April 2, 2014. At the conclusion of the hearing,

the trial court entered a verdict of guilty on the summary offense of

harassment and sentenced Appellant. N.T., 4/2/14, at 40. In addition, the

trial court entered judgment of sentence via an order dated and docketed on

April 2, 2014.   Certified Record Entry 5.   Therefore, pursuant to Pa.R.A.P.

903(a), in order to be timely Appellant’s notice of appeal from the judgment

of sentence should have been filed on or before Friday, May 2, 2014.

However, the docket in the certified record indicates Appellant’s notice of


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appeal was filed on May 5, 2014. Accordingly, Appellant’s notice of appeal

was filed late. Therefore, this appeal is patently untimely.

      Moreover, our further review of the record reflects that, rather than

properly filing the notice of appeal with the clerk of the lower court as

directed under Pa.R.A.P. 902, Appellant’s notice of appeal was erroneously

sent to the office of the Superior Court Prothonotary in Harrisburg and

received on May 5, 2014, which was beyond the thirty-day appeal period.

Certified Record Entry 8.      Also on May 5, 2014, the Superior Court

Prothonotary transmitted the erroneously filed notice of appeal to the

Schuylkill County Clerk of Courts, along with a letter containing the following

notation:

      PA.R.A.P. 905 Erroneous Filing (Received in Superior Court of
      Pennsylvania on 5/5/14). Counsel for appellant mailed the
      appeal directly to Superior Court, but should have mailed it to
      your office first.

Letter, 5/5/14, at 1. Certified Record Entry 8. Hence, there is no doubt that

the notice of appeal was not properly filed on or before May 2, 2014, the last

day of the appeal period.

      Because the notice of appeal filed by Appellant on May 5, 2014, was

untimely, we are without jurisdiction to entertain this matter. Thus, we are

constrained to quash this appeal.




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     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/21/2014




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