J   -S13019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                    1   IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                              Appellee

                         v.

MICHAEL HOLLEY

                              Appellant                    No. 190 EDA 2015


          Appeal from the Judgment of Sentence November 21, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004651-2013

BEFORE:     BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

JUDGMENT ORDER BY LAZARUS, J.:                            FILED APRIL 06, 2017

        Michael Holley appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, following his conviction for

arson after the trial court denied his motion to suppress the evidence of his

identification at   a   show -up. Upon review, we quash the appeal.

        The salient facts of this matter are as follows.       A fire and shooting

occurred in the early morning at 1534 Foulkrod Street, Philadelphia on

December 27, 2012. An eyewitness observed           a   man at the scene and gave

physical and clothing descriptions, including that the man was wearing           a

pink shirt and black pants.          A police officer stopped Holley because he

matched the descriptions provided by the eyewitness. The officer detained



*   Former Justice specially assigned to the Superior Court.
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Holley and conducted              a   "show -up" for identification purposes.   Holley also

admitted to being at the scene.

        The trial court noted that

        [Holley] was arrested and charged with multiple counts of
        [a]ttempted [m]urder, [a]ggravated [a]ssault, [p]ossession of
        [i]nstrument of [c]rime (PIC), [a]rson and other related
        offenses. At his hearing on November 4, 2014, [Holley] brought
        a motion to suppress his stop, his identification, and all evidence
        recovered[.]  .   .   After hearing the evidence presented, Judge
                              .


        [Robert P.] Coleman denied the motion.                 [Holley] then
        proceeded to a jury trial which began on [April 3, 2014]. [T]he
        jury found [Holley] guilty of the [aforementioned] offenses. On
        November 21, 2014, [Holley] proceeded to sentencing before
        this [court,] where he was sentenced to nine[ -]and[ -]a[ -]half to
        nineteen years['] incarceration [for a]ttempted [m]urder, two[ -
        ]and[ -]a[ -]half to five years['] incarceration [for] PIC, and
        eight[ -]and[ -]a[ -]half to seventeen years['] [for a]rson, all other
        related offenses merged.          The sentences were all to run
        consecutive[ly] for a total sentence of twenty[ -]and[ -]a[ -]half to
        forty-one years['] incarceration.         [Holley's] [m]otion for
        [r]econsideration of his sentence was denied by the [c]ourt on
        December 3, 2014.
        [Holley] filed this [] appeal of the [c]ourt's decision on January
        5, 2015. On January 20, 2015, this [c]ourt ordered [Holley] to
        file a concise statement of the matters complained of on appeal
        pursuant to [Pa.R.A.P.] 1925(b).          After several motions
        requesting an extension of time, [Holley] finally filed his 1925(b)
        [s]tatement with the [c]ourt on May 26, 2015. [Holley] argues
        that his [m]otion to [s]uppress should not have been denied by
        Judge Coleman and that this [c]ourt gave him an excessive
        sentence on the charges of PIC and [a]rson.
Trial Court Opinion, 8/3/15, at 1-2.

        On appeal, Holley limits the issue presented            for our review to whether

"the lower court err[ed] by holding that the police had lawfully seized
[Holley] prior to the show -up identification from the alleged eyewitness?"


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Appellant's Brief, at 4.      Before we reach the merits of the issue Holley

presents, however, we first must address whether we have jurisdiction to

consider his appeal.      Instantly, Holley filed an untimely notice of appeal,
which raises     a   jurisdictional issue that we may consider sua sponte.

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

        Holley's judgment of sentence was entered on November 21, 2014,

giving him until December 21, 2014, to file           a    timely notice of appeal. See

Pa.R.A.P. 903 (appellant has 30 -day period to file notice of appeal in this

Court from final order). Holley did not file his notice of appeal until January

5, 2015. We note      that the filing of   a   motion for reconsideration does not toll

the 30 -day period unless the trial court expressly grants reconsideration,

which it did not do in this matter.            See Coolbaugh, supra at 791.          It   is

inconsequential whether the trial court believed that the 30 -day period to file

the notice of appeal began to run from the entry of the order denying the

motion for reconsideration.       See Trial Court Opinion, 8/3/15, at        2   (stating

that "[Holley] filed this timely appeal") (emphasis added)).                 Moreover,

Holley's notice of appeal nevertheless would have been untimely, since 30

days from December 3, 2014, fell on January 2, 2015.                     Thus, for the

foregoing reasons, Holley's notice of appeal was untimely filed and we are

without jurisdiction to consider his appeal.              Coolbaugh, supra; Pa.R.A.P.
903.

        Appeal quashed. Application for Remand denied.

        FITZGERALD, J., Did not participate.

                                           - 3 -
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        Judgment Entered.

       ,etJ./CP
Joseph D. Seletyn, Esq.
Prothonotary


Date: 4/6/2017




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