Com. v. Bilger

• Court: Superior Court of Pennsylvania
• Citation: 803 A.2d 199
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Thomas BILGER, Appellant.
• Decision Date: 27 June 2002

803 A.2d 199

COMMONWEALTH of Pennsylvania, Appellee,
v.
Thomas BILGER, Appellant

Superior Court of Pennsylvania.

Submitted February 4, 2002.

Filed June 27, 2002.

803 A.2d 200

Jeanne Trivellini, Public Defender, Reading, for appellant

James M. Smith, Asst. Dist. Atty., Reading, for Commonwealth, appellee.

Before LALLY-GREEN, BENDER and KELLY, J.

BENDER, J.

¶ 1 This is an appeal from a judgment of sentence imposed upon Appellant after he was convicted, in a bench trial, on counts of possession of marijuana and possession of drug paraphernalia. Appellant raises one question for appellate review, did not the lower court err in denying Appellant's motion to suppress the marijuana pipe and marijuana seized subsequent to an unlawful custodial detention and arrest by a non-uniformed Pennsylvania State Police Trooper? We quash.

¶ 2 On July 7, 2000, a vehicle was pulled over by Pennsylvania State Police Trooper Douglas Howell on Route 78 in Berks County. Trooper Howell effectuated the stop after observing, in his estimation, the vehicle being driven in violation of several Motor Vehicle Code sections. Upon engaging the vehicle's driver, Appellant herein, in conversation, and upon observing a pipe on Appellant's lap, Trooper Howell suspected Appellant to be at least in possession of marijuana, if not under the influence of that same controlled substance. In response to Trooper Howell's inquiry, Appellant indicated that there was marijuana under the floor mats. Appellant was then placed in handcuffs and a quantity of a green, leafy, substance, later testing positive as marijuana, was retrieved from underneath the floor mats. Appellant was subsequently taken to the Police Barracks and charged, by criminal complaint, with a variety of possession and motor vehicle violation charges, including driving under the influence. After a preliminary hearing all charges were bound over to court. On October 6, 2000, a criminal information was filed setting forth the charges against Appellant.

¶ 3 On December 7, 2000, in response to the criminal information, Appellant filed an omnibus pre-trial motion seeking suppression of the marijuana and pipe. Appellant's suppression motion was heard on February 16, 2001, immediately following a pre-trial hearing which found the Commonwealth withdrawing the various motor vehicle code violations, including the charge of driving under the influence.¹ On March 23, 2001, the court denied Appellant's motion to suppress. A bench trial commenced on May 11, 2001, and was decided upon stipulated facts. At the completion of the trial Appellant was convicted of possession of marijuana, 30 grams or less, and possession of drug paraphernalia. On the same day, Appellant was sentenced to twelve months probation. On May 22, 2001, Appellant filed a single document containing motions for new trial, arrest of judgment and judgment of acquittal (hereinafter, "post-sentence motions"). On May 24, 2001, the court denied Appellant's post-sentence motions. On June 19, 2001, Appellant filed the present appeal.

¶ 4 Before we address the merits of Appellant's appeal, we must address a

803 A.2d 201

question of our jurisdiction to entertain the appeal. As the chronological history set forth above reveals, Appellant filed post-sentence motions on May 22, 2001, eleven days after entry of his judgment of sentence on May 11, 2001. Pennsylvania Rule of Criminal Procedure 720 allows ten days for the filing of a post-trial motion. The Rule reads

RULE 720. POST-SENTENCE PROCEDURES; APPEAL

(A) TIMING.

(1) Except as provided in paragraph (D), a written post-sentence motion shall be filed no later than 10 days after imposition of sentence.

Since Appellant's post-sentence motions were not filed within ten days, they were untimely under 720(A)(1). Nevertheless, despite their untimeliness, the court "denied"² Appellant's post-trial motions on May 24, 2001 without any reference to the fact that they were untimely. Ostensibly, then, the dismissal was based upon the merits of the post-sentence motions.³ Reference to Rule 720 indicates that a defendant has thirty days in which to file an appeal to this court. Appellant filed his notice of appeal on June 19, 2001, within 30 days of the "denial" of his post-trial motions, but more than 30 days from the entry of his judgment of sentence. Thus the timeliness of Appellant's appeal depends upon when Appellant's appeal period began.

¶ 5 With respect to the filing of an appeal Rule 720 continues:

(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.

(3)...