J-S73019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAMIR H. HUNTER                           :
                                               :
                       Appellant               :     No. 408 MDA 2019

           Appeal from the Judgment of Sentence Entered June 1, 2017
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0004664-2016


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                         FILED: FEBRUARY 4, 2020

        Shamir H. Hunter appeals from his judgment of sentence, entered in the

Court of Common Pleas of Dauphin County, after a jury convicted him of

robbery1 and second-degree murder.2 Counsel also seeks to withdraw from

her representation on appeal pursuant to Anders v. California, 386 U.S. 738

(1967) and its progeny. We quash.

        Between 12:30 am and 1:00 am on June 19, 2016, the morning after

his brother’s wedding, the victim, Stephen Esworthy, left Tom Sawyer’s bar to

head to his brother’s house for the evening. Lamar Porter, an eyewitness,

testified that upon arriving at his home at around 1:00 am, he witnessed

Esworthy walking up Green Street, visibly intoxicated, and he observed Hunter
____________________________________________


1   18 Pa.C.S.A. § 3701(a)(1).

2   18 Pa.C.S.A. § 2502(b).
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walking up Green Street “wearing his shirt around his neck and [] walking with

a stick in his hand.” Trial Court Opinion, 5/28/19, at 1-2. After two to three

minutes, Porter observed Hunter standing over the victim and going through

his pockets before running down Charles Street. The victim was lying face

down and was surrounded by pieces of a broken stick. Porter called 911 and

provided police with a description of the person he saw flee the scene.

Esworthy died as a result of his injuries in the ambulance on the way to the

hospital. Several days later, Porter identified Hunter in a photo lineup as the

person he had seen on the night of the murder. Id. at 2-3.

        Surveillance footage from Al’s Bar and Midtown Scholar bookstore on

the night in question showed Hunter with a shirt wrapped around his neck

attempting to break into several vehicles—one of which belonged to a man

whose credit cards were found near the scene of Esworthy’s murder. Police

also viewed Hunter’s Facebook page, where he posted on June 19, 2016 at

3:14 am that he had just “caught a stain,” a slang phrase for robbery. Id. at

4.

        Additionally, after being arrested and receiving Miranda3 warnings,

Hunter admitted to police that he was breaking into vehicles to steal money

for synthetic marijuana.        Hunter further explained that when he saw an

opportunity to rob Esworthy, he approached Esworthy from behind and hit

him in the head with the stick.          Doctor Wayne Ross, forensic pathologist,

____________________________________________


3   Miranda v. Arizona, 384 U.S. 436 (1966).

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performed Esworthy’s autopsy. He testified that Esworthy’s injures were the

result of being struck in the back of the head, which rendered him

unconscious, causing him to fall to the ground face first. Id. at 4-6. Sara

Harner, laboratory technician, also tested various items collected from the

crime scene for DNA evidence and compared them with samples from Hunter

and the victim.   Harner was able to identify a partial DNA match between

Hunter’s DNA and DNA found on the wooden stick; she indicated that the

probability of randomly matching an unrelated individual to that strand of DNA

is “1 in 32 billion from the Caucasian population, 1 in 870 million from the

African American population, and 1 in 10 billion from the Hispanic population.”

Id. at 7.

      Following a three-day jury trial, Hunter was found guilty of the above-

mentioned crimes on April 26, 2017. On June 1, 2017, Hunter was sentenced

to life in prison without the possibility of parole. On June 29, 2017, he filed a

timely notice of appeal.     However, this Court dismissed the appeal on

December 21, 2017, due to counsel’s failure to file a brief. By order dated

January 29, 2019, the trial court reinstated Hunter’s appeal rights nunc pro

tunc, granted him 10 days to file a post-sentence motion, and directed Hunter

to file a notice of appeal within 30 days from the date the court ruled on his

post-sentence motion. On February 7, 2019, within the 10-day period to file

a post-sentence motion, Hunter filed a motion for extension of time to file his

post-sentence motion. The trial courted granted a 30-day extension by order

dated February 11, 2019. Without ever filing a post-sentence motion, Hunter

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filed the instant appeal on March 7, 2019, more than 30 days after the entry

of the January 29, 2019 order reinstating his appellate rights. Hunter also

submitted a court-ordered concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).       On appeal, Hunter challenges the

sufficiency of the evidence to establish his guilt beyond a reasonable doubt.

      Before we may consider any substantive claims on appeal, however, we

must first determine whether Hunter’s notice of appeal was properly filed.

Specifically, we must consider the timeliness of Hunter’s appeal, as it

implicates our jurisdiction. See Commonwealth v. Burks, 102 A.3d 497,

500 (Pa. Super. 2014) (untimely appeal divests this Court of jurisdiction);

Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa. 1999) (appellate courts

may consider the issue of jurisdiction sua sponte). The Pennsylvania Rules of

Appellate Procedure provide, in relevant part, that “[i]n a criminal case in

which no post-sentence motion has been filed, the notice of appeal shall be

filed within 30 days of the imposition of the judgment of sentence in open

court.” Pa.R.A.P. 903(a); see also Pa.R.Crim.P. 720(A)(3) (“If the defendant

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

filed within 30 days of imposition of sentence.”).     Furthermore, the Rules

provide that this Court “may not enlarge the time for filing a notice of appeal.”

Pa.R.A.P. 105(b).

      Hunter had 30 days from the order dated February 11, 2019, to file a

post-sentence motion challenging his judgment of sentence. Had counsel filed

this motion, Hunter would have had 30 days from the entry of an order

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disposing of that motion to file a notice of appeal. As Hunter did not file any

post-sentence motion, he had 30 days from the January 29, 2019 order

imposing his judgment of sentence to file a timely notice of appeal pursuant

to Rule 903(a). Hunter filed the instant appeal on March 7, 2019, over 30

days after the order reinstating his right to appeal nunc pro tunc. Accordingly,

his notice of appeal is untimely under Pa.R.A.P. 903(a). This Court therefore

lacks jurisdiction over this appeal, and we are constrained to quash.      See

Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super. 2004) (appellate

court must quash appeal for lack of jurisdiction where post-sentence motion

and notice of appeal were untimely).

       Appeal quashed. Petition to withdraw as counsel denied as moot.4



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/04/2020




____________________________________________


4Because we are without jurisdiction to consider the substantive claims in this
appeal pursuant to Burks, supra, we are similarly unable to determine if
Hunter’s appeal is wholly frivolous. Accordingly, we deny counsel’s petition to
withdraw as moot.

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