J-S66019-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                        Appellee         :
                                         :
            v.                           :
                                         :
KARL BREEDEN,                            :
                                         :
                        Appellant        :      No. 11 MDA 2014


     Appeal from the Judgment of Sentence Entered December 5, 2012,
               In the Court of Common Pleas of York County,
             Criminal Division, at No. CP-67-CR-0001269-2011.


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

MEMORANDUM BY SHOGAN, J.:                       FILED DECEMBER 17, 2014

      Appellant, Karl Breeden, purports to appeal from the judgment of

sentence entered following his convictions of multiple theft offenses.1 After

careful review, we quash this appeal as untimely filed.

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

            The Commonwealth presented numerous witnesses to
      prove [Appellant’s] guilt beyond a reasonable doubt to the Jury.
      This Court will address what it feels to be the most relevant facts
      and evidence revealed throughout the trial.

           Michael Yergo, the president and a majority shareholder of
      [Advance Industrial Services], testified that he hired [Appellant],
      along with the approval of Kris Mailey, the second majority
      shareholder and corporate vice president.             Contrary to


1
 We note that the caption in this matter, and the notice of appeal filed by
Appellant, indicate that this appeal is from the order of the trial court
entered on November 25, 2013. However, as will be discussed in detail
below, this appeal was not properly brought from that order.
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     [Appellant], Mr. Yergo testified that when he hired [Appellant] he
     never promised [Appellant] an ownership in the company, and
     he never gave [Appellant] a specific timeline in which that would
     occur. In the early 1990s, [Appellant] in fact became an owner
     of the company, along with Jim Heinrichs, when he received a
     2% share in the company. [Appellant] began as the company’s
     controller and then advanced to CFO, and he took charge of all
     the company’s financial responsibilities.     Mr. Yergo trusted
     [Appellant] with the finances of the company until [Appellant]
     was let go on June 8, 2010. Mr. Yergo explained that the
     company gave bonuses at year’s end based on profitability, and
     he never gave [Appellant] permission to give himself bonuses in
     addition to his normal salary or calculated year-end bonus. Mr.
     Yergo approved two personal loans for [Appellant] -- $60,000
     and $100,000 -- and he placed [Appellant] in charge of
     organizing a repayment schedule, as [Appellant] did with all
     company loans. [Appellant] never made a payment on these
     loans, even after signing a promissory note . . . . Despite being
     advised he was no longer allowed to take out company loans,
     [Appellant] took an additional $75,000 loan without permission
     of Mr. Yergo.

           [Appellant] also signed the company’s policy manual,
     which explained the vacation policy. Mr. Yergo never gave
     [Appellant] special permission to cash in vacation time beyond
     that to which he was entitled under company policy. [Mr.] Yergo
     further testified that [Appellant] did not have the authority to
     use his signature stamp for personalized checks. [Mr.] Yergo
     claimed he had no knowledge that [Appellant] was writing
     himself checks and using [Mr. Yergo’s] signature stamp. Mr.
     Yergo only authorized his signature stamp to be used for
     company expenses and reimbursing any out-of-pocket expenses.
     Furthermore, [Mr.] Yergo testified that he approved all company
     bonuses, and no minority shareholder (like [Appellant]) would be
     authorized to take one without approval.

           The Commonwealth also presented the testimony of Elaine
     Druck, who handled payroll for the company since 1993. Ms.
     Druck was aware of the vacation policy specifics and the
     possibility of payment to employees for unused vacation days.
     Ms. Druck testified that [Appellant] began sending her emails
     demanding cash for his vacation time. She explained that she


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     began [forwarding] these emails to her home address because
     they contradicted company policy, and she wanted to protect
     herself. Ms. Druck reviewed all these emails during trial and
     each payout made at the request of [Appellant]. She explained
     that [Appellant] received all these checks in addition to his
     normal salary. Ms. Druck further testified about the number and
     amount of bonus payments [Appellant] received, which
     exceeded the bonus payments to any other employee. From her
     experience with the company, Ms. Druck explained that she
     never processed bonus payments of this nature for any other
     A.I.S. employee.      Ms. Druck also revealed the number of
     vacation hours [Appellant] cashed in from 2006 through 2010.
     Finally, Ms. Druck explained that [Appellant] directed her to stop
     tracking shareholder vacation, which [Ms. Druck] said she had
     been doing since she began her employment. [Ms.] Druck
     further stated she did not question [Appellant] because he was
     her boss at the time.

            Barbara Lamer also testified for the Commonwealth during
     the trial. Ms. Lamer was hired as accounting manager, and at
     the time of trial, held the position of controller – [Appellant’s]
     prior position. Ms. Lamer first testified about the company’s
     general ledger account, which showed the company loan
     amounts specific to [Appellant]. Ms. Lamer next explained the
     payroll check history report, which shows every payroll check
     issued for each employee every week. This report documented
     every payment that [Appellant] received from 2006 through
     2010, and provided the specific amount of additional bonus and
     vacation payments that [Appellant] received. After reviewing
     this report, Ms. Lamer testified that the total amount of vacation
     payments came to about $131,000, which she explained was not
     even close to a normal occurrence. Ms. Lamer then compared
     [Appellant’s] salary with Jim Heinrich’s salary, who received a
     similar salary as [Appellant]. Ms. Lamer then reviewed the W-2
     information on both [Appellant] and Mr. Heinrich, and her
     testimony showed that [Appellant] reported a significantly higher
     gross income than his or Mr. Heinrich’s salaried amount for any
     year from 2006 – 2010. [Appellant’s] gross income was even
     higher than the owners’ salaries.       [Appellant] provided Ms.
     Lamer with the explanation that he had worked out a deal with
     the company to repay him for ownership that he was promised
     but never received.


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            Finally, [Appellant] testified during the defense’s case in
      chief. [Appellant’s] testimony offered an explanation as to why
      he was entitled to the money he received from the company.
      When first hired, [Appellant claimed] that he would need three
      things to leave his then-current position, which included: a
      salary at least equal to his current salary; 4 weeks vacation
      minimum; and ownership interest to increase by 1% per year
      beginning in 1994. [Appellant] had no written documentation of
      this proposed agreement with [either] Mr. Yergo or Mr. Mailey.
      [Appellant] received 2% ownership in the company by 1995, and
      [Appellant] was not issued any more stock until 2006, when he
      received an additional 1% ownership. [Appellant] testified that
      he did not leave the company because he trusted Mr. Yergo
      would follow through with his promises and make the situation
      right. Because of his discontent, [Appellant] emailed Mr. Yergo
      and requested a meeting to discuss a bonus, which was not to
      exceed $300,000. [Appellant] further testified that Mr. Yergo
      and Mr. Mailey were “very receptive” to the idea of this bonus.
      [Appellant] testified that he was entitled to the money he took
      pursuant to the undocumented, pre-employment agreement and
      the bonus agreement with the majority shareholders.

Trial Court Opinion, 3/26/14, at 3-6 (citations omitted).

      In addition, the trial court summarized the procedural history of this

case as follows:

            [Appellant] was found guilty by a jury of numerous theft
      offenses on August 13, 2012; those charges were Forgery under
      18 Pa.C.S.A. § 4101(a)(1), Theft by Deception under 18
      Pa.C.S.A. § 3922(a)(1), Theft by Unlawful Taking under 18
      Pa.C.S.A. § 3921(a)(1), and Theft by Receiving Stolen Property
      under 18 Pa.C.S.A. § 3925(a). The jury further found that the
      loss to the victim, Advance Industrial Services, was $2,000 or
      more.    On August 23, 2012, [Appellant] filed Post-Verdict
      Motions that [the trial court] denied generally on September 17,
      2012. [The trial court] sentenced [Appellant] on November 30,
      2012, and during sentencing, the Court heard additional
      testimony and argument regarding restitution. On December 4,
      2012, [the trial court] set restitution in the amount of


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      $377,701.00.      [Appellant] then filed a Post Sentence
      Motion/Motion to Set Restitution/Motion to Set Court Costs on
      December 20, 2012. As a result of this motion, a hearing was
      scheduled for February 19, 2013, on the matter of restitution.

           On December 11, 2012, [Appellant] filed a Notice of
      Appeal with the Superior Court. However, the appeal in this
      matter was discontinued on December 31, 2012, after
      [Appellant] filed a Praecipe to Discontinue the Appeal due to the
      Motion for Restitution that was still pending with this Court.

             On February 19, 2013, this Court held a restitution hearing
      during which additional testimony and evidence was presented.
      As a result, this Court ordered that the trial transcripts be made
      available to counsel. Counsel was ordered to file memoranda
      regarding their positions as to restitution within 60 days of
      receiving the transcripts. [Appellant], who was joined by the
      Commonwealth, filed a Motion to Extend Time to file the
      restitution memorandum due to the extensive record and the
      complexity of the issues. [The trial court] then extended the
      filing deadline to July 30, 2013.      The Commonwealth then
      requested a further extension of time, and [the trial court] again
      extended the filing deadline to August 9, 2013.                The
      Commonwealth in fact filed its memorandum by August 9, 2013.

Trial Court Opinion, 3/26/14, at 1-3 (citations omitted).

      On November 25, 2013, the trial court entered an order adjusting the

amount of Appellant’s restitution to $362,609.28. This appeal followed.

      Appellant presents the following issues for our review:

      1. Whether the trial court erred when it denied the Motion to
      Dismiss the conviction for forgery pursuant to Section
      4101(a)(1)?

      2.a. Whether the trial court erred when it denied the Motion
      Challenging the Weight of the Evidence as to Theft By Deception
      – False Impression pursuant to Section 3922(a)(1)?




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      2.b. Whether the trial court erred when it denied the Motion
      Challenging the Weight of the Evidence as to the Charge of Theft
      By Unlawful Taking – Removable Property pursuant to Section
      3921(a)?

      2.c. Whether the trial court erred when it denied the Motion
      Challenging the Weight of the Evidence as to the Charge of
      Receiving Stolen Property pursuant to Section 3925?

      3. Whether the trial court erred when it denied counsel’s
      objection to the Commonwealth presenting rebuttal witnesses?

      4. Whether the evidence presented at trial was insufficient as to
      the charges of Forgery; Theft by Deception; Receiving Stolen
      Property; and Theft by Unlawful Taking?

      5. Whether the trial court erred when it partially denied the
      Motion to Set Restitution, specifically, when the court included
      $47,200.00 as part of the restitution from the alleged, forged
      checks which was already part of the “unauthorized vacation
      payments” and was also a part of the settlement agreement
      reached by the parties prior to the criminal charges being filed?

Appellant’s Brief at 4.

      As a prefatory matter, we note that the Commonwealth, in its brief,

presents an argument that this appeal is untimely because the notice of

appeal has been filed late. Commonwealth’s Brief at 3-5. Thus, before we

review the issues presented by Appellant, we must address the timeliness of

this appeal because it appears that Appellant filed the instant 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


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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 forth 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.

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


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      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).

      In addition, we are mindful that Pa.R.Crim.P. 720 addresses post-

sentence procedures.      Specifically, Pa.R.Crim.P. 720(A) provides that “a

written post-sentence motion shall be filed no later than 10 days after

imposition of sentence.” Pa.R.Crim.P. 720(A)(1). Rule 720 further provides

as follows:

      (2) If the defendant files a timely post-sentence motion, the
      notice of appeal shall be filed:

              (a) within 30 days of the entry of the order deciding
              the motion;

              (b) within 30 days of the entry of the order denying
              the motion by operation of law in cases in which the
              judge fails to decide the motion; or

              (c) within 30 days of the entry of the order
              memorializing the withdrawal in cases in which the
              defendant withdraws the motion.

Pa.R.Crim.P. 720(A)(2) (emphasis added).        However, “[i]f the defendant

does not file a timely post-sentence motion, the defendant’s notice of appeal




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shall be filed within 30 days of imposition of sentence, ...”    Pa.R.Crim.P.

720(A)(3).

     In Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003) (en

banc), this Court offered the following additional explanation, which we find

pertinent:

     From the above, it can be seen that the time for filing an appeal
     can be extended beyond 30 days after the imposition of
     sentence only if the defendant files a timely post-sentence
     motion. The Comment to Rule 720 emphasizes this point as
     follows: “If no timely post-sentence motion is filed, the
     defendant’s appeal period begins to run from the date sentence
     is imposed.” Thus, where the defendant does not file a timely
     post-sentence motion, there is no basis to permit the filing of an
     appeal beyond 30 days after the imposition of sentence. This
     interpretation of Rule 720 is amply supported by this Court’s
     recent decision in Commonwealth v. Bilger, 803 A.2d 199 (Pa.
     Super. 2002), appeal denied, 572 Pa. 695, 813 A.2d 835 (Pa.
     2002) in which we stated:

             As can be readily observed by reading the text of
             Rule of Criminal Procedure 720, ordinarily, when a
             post-sentence motion is filed an appellant has thirty
             (30) days from the denial of the post-sentence
             motion within which to file a notice of appeal.
             However, by the explicit terms of Pa.R.Crim.P.
             720(A)(2), the provision allowing thirty days from
             the denial of post-trial motions is contingent upon
             the timely filing of a post-trial motion.

     Bilger, 803 A.2d at 201. We further opined that “in order for
     the denial of post-sentence motions to become the triggering
     event, it is necessary that the post-sentence motions be
     timely filed.   Second, absent a timely filed post-sentence
     motion, the triggering event remains the date sentence is
     imposed.” Id. at 202 (emphasis added).




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Dreves, 839 A.2d at 1127.      Therefore, “[f]or purposes of triggering the

appeal period, [the] filing of an untimely post-sentence motion is equivalent

to a complete failure to file a post-sentence motion.” Bilger, 803 A.2d at

202.

       Here, our review of the record reflects the following. On August 13,

2012, a jury convicted Appellant of the crimes stated above. On November

30, 2012, the trial court sentenced Appellant to a term of incarceration of

one year less one day to two years less one day for the conviction of theft by

deception and a concurrent term of probation of ten years for the conviction

of forgery.   In an order dated December 4, 2012, the trial court directed

Appellant to make restitution in the amount of $377,701.00.       The record

further reflects that the restitution order was docketed on December 5,

2012, and notice of the order was sent to the parties on December 6, 2012.

Thus, assuming for the sake of argument that the ten-day time period for

the filing of a post-sentence motion began when notice of the restitution

order was sent on December 6, 2012, Appellant’s post-sentence motion was

due on or before December 17, 2012.2




2
  Appellant needed to file his post sentence motion by Monday, December
17, 2012, because December 16, 2012, was a Sunday. See 1 Pa.C.S. §
1908 (stating that, for computations of time, whenever the last day of any
such period shall fall on Saturday or Sunday, or a legal holiday, such day
shall be omitted from the computation).

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      However, the record further reflects that Appellant did not file his post-

sentence motions until December 20, 2012.          Because Appellant’s post-

sentence motion was untimely filed, it is the equivalent of a complete failure

to file a post-sentence motion. Bilger, 803 A.2d at 202. Thus, Appellant’s

untimely post-sentence motion did not toll the time period for filing a direct

appeal.    Accordingly, in the best case scenario for Appellant, his appeal

period began to run on the date that notice of the restitution order was

mailed, i.e., December 6, 2012, and the instant notice of appeal had to be

filed within thirty days, or on January 7, 2013.3 However, the instant notice

of appeal was not filed until December 23, 2013, over eleven months late.

Hence, this appeal must be quashed.

      Moreover, we are cognizant that the trial court overlooked the

untimely filing of Appellant’s post-sentence motion and addressed that

motion, which initiated the instant appeal. However, such action by the trial

court does not alter our decision that this appeal is untimely and must be

quashed.

      Where a trial court considers an untimely post-sentence motion, we

have observed the following:

      [A]bsent the additional step by the trial court of vacating the
      sentence within the thirty-day period and prior to the taking of


3
  Appellant was required to file the instant notice of appeal by Monday,
January 7, 2013, because January 5, 2013, was a Saturday. 1 Pa.C.S. §
1908.

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      an appeal, the court’s decision to do so should not affect the
      running of the appeal period and a potential appellant will still be
      obligated to file an appeal within thirty days of imposition of
      sentence. See Commonwealth v. Quinlan, 639 A.2d 1235
      (Pa. Super. 1994). To invoke a rule that ties the start of the
      appeal period to the trial court’s subsequent decision to either
      consider the merits of an untimely filed post-sentence motion, or
      the trial court’s decision to equate an untimely petition as no
      petition, would add uncertainty to an otherwise certain rule and
      add confusion where there need be none.

Bilger, 803 A.2d at 202 n.5.

      Likewise, in Dreves, we held that an untimely post-sentence motion

did not extend the time period for filing an appeal from the judgment of

sentence.   We acknowledged in Dreves that the trial court did have the

power to grant the filing of a post-sentence motion nunc pro tunc within

thirty days of the judgment of sentence, but specifically ruled that the fact

that the trial court entertained and denied the untimely motion did not toll

the appeal period. We explained that unless a defendant specifically files a

motion seeking permission to file a post-sentence motion nunc pro tunc and

unless the trial court expressly grants the request within thirty days of the

imposition of the sentence, the appeal period continues to run.              See

Dreves, 839 A.2d at 1128-1129 (stating that “[t]he trial court’s resolution

of the merits of a late post-sentence motion is no substitute for an order

expressly granting nunc pro tunc relief”).

      In this case, even though the trial court considered the merits of the

untimely post-sentence motion, the trial court failed to acknowledge that the


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post-sentence motion was untimely.      Moreover, the trial court did not

expressly grant Appellant permission to file a post-sentence motion nunc pro

tunc. Therefore, we are constrained to conclude that the instant notice of

appeal was untimely filed and quash this appeal.

     Appeal quashed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/17/2014




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