J. S35005/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
VICTOR HOLLINGSWORTH,                    :        No. 642 EDA 2015
                                         :
                          Appellant      :


             Appeal from the Judgment of Sentence, July 18, 2014,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0013796-2012


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MAY 25, 2016

        Victor Hollingsworth appeals from the July 18, 2014 judgment of

sentence of the Court of Common Pleas of Philadelphia County following his

conviction of robbery and criminal conspiracy to commit robbery.1 We quash

the appeal as untimely.

        A jury convicted appellant on May 15, 2014.   On July 18, 2014, the

trial court sentenced appellant to an aggregate term of 69 to 180 months’

imprisonment.     Appellant filed a post-sentence motion on July 28, 2014,

which was denied by the trial court on December 29, 2014.               On

December 31, 2014, appellant filed a motion to reconsider, for which the

trial court granted a hearing.    The trial court held a hearing and denied



1
    18 Pa.C.S.A. §§ 3701 and 903, respectively.
J. S35005/16


appellant’s motion on February 5, 2015. Appellant filed a notice of appeal

on February 6, 2015.           On February 12, 2015, the trial court ordered

appellant to produce a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and appellant complied with the trial court’s

order on February 27, 2015.         On June 25, 2015, the trial court issued an

opinion pursuant to Pa.R.A.P. 1925(a).         This court, on March 30, 2015,

issued a rule to show cause instructing appellant to show cause why the

instant appeal should not be quashed as untimely. Appellant responded on

April 7, 2015. On May 5, 2015, this court issued an order discharging the

rule to show cause, deferring the issue to this panel.

      Appellant raises the following issues for our review:

            1.       Was the evidence sufficient as a matter of law
                     to convict [appellant] of taking property from
                     the complainant either by force or by threat of
                     force, or of being a member of a conspiracy to
                     take property from the complainant either by
                     force or by threat of force?

            2.       Was the verdict against the weight of the
                     evidence?

Appellant’s brief at 5.

      Before we can consider appellant’s issues on the merits, we must first

determine whether we have jurisdiction to do so. While neither party raised

a   jurisdictional    issue,   we    may   review   jurisdiction   sua   sponte.

Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa.Super. 2007), citing

Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa.Super. 2001).



                                        -2-
J. S35005/16


           It is well-settled that, upon the filing of a motion for
           reconsideration, a trial court's action in granting a
           rule to show cause and setting a hearing date is
           insufficient to toll the appeal period. Valentine v.
           Wroten, 397 Pa.Super. 526, 580 A.2d 757 (1990).
           Rather, the trial court must expressly grant
           reconsideration within thirty days of entry of its
           order. Pa.R.A.P. 1701. “Failure to ‘expressly’ grant
           reconsideration within the time set by the rules for
           filing an appeal will cause the trial court to lose its
           power to act on the application for reconsideration.”
           Schoff v. Richter, 386 Pa.Super. 289, 562 A.2d
           912, 913 (1989); Cheathem v. Temple University
           Hospital, 743 A.2d 518 (Pa.Super. 1999).
           “Therefore, as the comment to Pa.R.A.P. 1701
           explains, although a party may petition the court for
           reconsideration, the simultaneous filing of a notice of
           appeal is necessary to preserve appellate rights in
           the event that either the trial court fails to grant the
           petition expressly within 30 days, or it denies the
           petition.” [Valley Forge Center v. Rib It/K.P.,
           Inc., 693 A.2d 242, 245 (Pa.Super. 1997)].
           Moreover, we have consistently held that an appeal
           from an order denying reconsideration is improper
           and untimely. Valentine, supra.

Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa.Super. 2000).

     Here, in response to this court’s order to show cause, appellant’s

counsel   avers   that   when   denying    the   post-sentence    motions   on

December 29, 2014, the trial court told him that a hearing would be granted

upon the    filing of a “Motion for       Reconsideration of the      Denial of

Post-Sentence Motions.” The Commonwealth did not respond to our rule to

show cause, nor did it raise any objection to the timeliness of the instant

appeal.




                                    -3-
J. S35005/16


      “[I]n similar situations, we have declined to quash the appeal

recognizing that the problem arose as a result of the trial court’s

misstatement of the appeal period, which operated as a breakdown in the

court’s operation.” Coolbaugh, 770 A.2d at 791, citing Commonwealth v.

Anwyll, 482 A.2d 656, 657 (Pa.Super. 1984) (“finding that although appeal

was untimely, where defendant’s failure to appeal on time appeared to be

the result of a breakdown in operation of trial court, which gave erroneous

information as to appeal period, appeal would not be quashed as untimely

but would be regarded as though filed nunc pro tunc and considered on the

merits”).

      The record in the instant case does not indicate that the trial court

provided erroneous information to appellant’s counsel regarding the appeal

period, nor does the record indicate that a breakdown in the court’s

operation took place. As noted by the Moir court, setting a hearing date for

a motion to reconsider is not sufficient to toll the period to file a notice of

appeal. We, therefore, quash the instant appeal as untimely.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/25/2016



                                     -4-
