J.A22017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                          Appellee          :
                                            :
              v.                            :
                                            :
SAMUEL STEINBERG,                           :
                                            :
                          Appellant         :      No. 148 MDA 2014

       Appeal from the Judgment of Sentence Entered December 11, 2013
               In the Court of Common Pleas of Lancaster County,
               Criminal Division, at No. CP-36-SA-0000249-2013.

BEFORE: PANELLA, SHOGAN and FITZGERALD,* JJ.

DISSENTING STATEMENT BY FITZGERALD, J.: FILED NOVEMBER 24, 2014

        I respectfully dissent from the order quashing this appeal because, in

my view, a breakdown in the trial court occurred when apprising Appellant of

his appeal rights.

        Instantly, the trial court filed a written sentencing order, but that order

did not advise Appellant of his appeal rights as required by Pa.R.Crim.P.

462(G)(4). Summary Appeal Court Sheet, 12/11/13. The only reference to

appeal rights occurred at the conclusion of the trial de novo, when the trial

court requested that the Commonwealth advise Appellant of his rights. See

Pa.R.Crim.P. 462(G)(2); N.T., 12/11/13, at 28.             However, before the




*
    Former Justice specially assigned to Superior Court.
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Commonwealth      responded,   the   following   exchange   occurred   between

Appellant’s counsel and the court:

          [Appellant’s Counsel]: Judge, I can colloquy him as to his
          rights: 10 days to reconsider; 30 days to the Superior
          Court. I’ll do that in detail.

          The Court: Very well. Thank you.

Id.

      As the majority noted, there is no right to file post-sentence motions

following a trial de novo.     Pa.R.Crim.P. 720(D); see also Pa.R.Crim.P.

462(G)(2) (requiring only that defendant be advised of right to appeal to

Superior Court within thirty days of imposition of sentence). Moreover, the

mere filing of a motion to reconsider does not toll the time for taking an

appeal.   See Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super.

2000). The trial court did not correct counsel’s apparent misapprehension of

Appellant’s post-sentence and appeal rights.

      In light of the foregoing, I would find that Appellant received

inadequate notice of his appeal rights, which amounted to a breakdown in

the operation of the courts. See Commonwealth v. Patterson, 940 A.2d

493, 498-99 (Pa. Super. 2007). Accordingly, I would not quash this appeal

and would address the claim raised by Appellant.




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