Com. v. Braykovich

• Decision Date: 08 August 1995
• Citation: 444 Pa.Super. 397,664 A.2d 133
• Parties: COMMONWEALTH of Pennsylvania v. George R. BRAYKOVICH, Appellant.
• Court: Pennsylvania Superior Court

Page 133

664 A.2d 133

444 Pa.Super. 397

COMMONWEALTH of Pennsylvania v. George R. BRAYKOVICH, Appellant.

Superior Court of Pennsylvania.

Argued March 21, 1995.

Filed Aug. 8, 1995.

Stephen Delpero, Sharon, for appellant.

William M. Panella, District Attorney, New Castle, for Commonwealth, appellee.

Before ROWLEY, President Judge, and KELLY and HOFFMAN, JJ.

ROWLEY, President Judge.

This is an appeal from a judgment of sentence of probation in which appellant George R. Braykovich argues that the trial court erred when it denied his motion to dismiss pursuant to Pa.R.Crim.P. 1100. We affirm.

On April 6, 1989, appellant was charged with theft by unlawful taking, ¹ criminal mischief, ² criminal conspiracy, ³ and receiving stolen property. ⁴ Those charges were based on the removal of timber from the property of Trilli & Dunbar, Inc. (Trilli property). On the same date, a second complaint was filed charging the same offenses involving an adjacent property, owned by Ellwood City Rod and Gun Club (Ellwood property). At a preliminary hearing, the charges stemming from the removal of timber on the Trilli property were dismissed. Subsequently, the charges stemming from the Ellwood property were nolle prossed by the Commonwealth because appellant's co-defendant had made restitution. On February 26, 1993, only the charges relating to the Trilli property were refiled. ⁵ Appellant filed a motion to dismiss the Trilli charges, arguing that his prosecution in 1993 would constitute a violation of Rule 1100. The motion was denied. The Commonwealth withdrew the charge of conspiracy, and the case proceeded to trial. The trial court granted a demurrer on the charge of receiving stolen property. On February 15, 1994, appellant was found guilty by a jury of theft by unlawful taking, and on April 12, 1994, he was sentenced to a period of four (4) years probation and fined $20,000.00. On April 19, 1994, appellant filed a motion in arrest of judgment. On September 13, 1994, the motion in arrest of judgment was denied, and appellant filed this appeal on October 11, 1994.

Before reaching the merits of this appeal, we must address the post-sentence procedure in this case. That procedure is governed by Pa.R.Crim.P. 1410, the current version of which is effective as to cases in which the determination of guilt occurs on or after January 1, 1994. Rule 1410 provides, in pertinent part:

A. Timing.

* * * * * *

(2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed within 30 days of the entry of the order deciding the motion, or, if the judge fails to decide the motion, within 30 days of the entry of the order denying the motion by operation of law.

* * * * * *

B. Optional Post-sentence Motion.

(1) Generally.

(a) The defendant in a court case shall have the right to make a post-sentence motion....

* * * * * *

(3) Time Limits for Decision on Motion.

(a) Except as provided in subsection (3)(b), [permitting, for good cause shown, one 30-day extension] the judge shall decide the post-sentence motion, including any supplemental motion, within 120 days of the filing of the motion. If the judge fails to decide the motion within 120 days, or to grant an extension as provided in subsection (3)(b), the motion shall be denied by operation of law. (emphasis added)

In the instant case, the trial judge failed to decide the post-sentence motion within 120 days. Thus, the motion should have been denied by operation of law. Rule 1410 B(3)(a). Rule 1410 B(3)(c) sets forth the procedure which follows a denial by operation of law:

(c) When a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the court, and shall forthwith furnish a copy of the order by mail or personal delivery to the attorney for the Commonwealth, the defendant(s), and defense counsel that the post-sentence motion is deemed denied. This order is not subject to reconsideration. (emphasis added)

When a post-sentence motion is denied by the trial court or by operation of law, the clerk of courts shall enter an order, pursuant to Rule 1410 B(4), the contents of which are as follows:

(4) Contents of Order. An order denying a post-sentence motion, whether signed by the judge or entered by the clerk of courts, shall include notice to the defendant of the following:

(a) the right to appeal and the time limits within which the appeal must be filed;

(b) the right to assistance of counsel in the preparation of the appeal;

(c) the rights, if the defendant is indigent, to appeal in forma pauperis and to proceed with assigned counsel as provided in Rule 316; and

(d) the qualified right to bail under Rule 4010.B.

The comment to the aforementioned section of Rule 1410 enunciates the intent behind the notice requirement as follows:

Subsection B(4) protects the defendant's right to appeal by requiring that the judge's order denying the motion, or the clerk of courts' order denying the motion by operation of law, contain written notice of the defendant's appeal rights. This requirement insures adequate notice to the defendant, which is important given the potential time lapse between the notice provided at sentencing and the resolution of the post-sentence motion. See Rule 1405.C(3). (emphasis added)

In the instant case, the clerk of courts failed to enter the appropriate order "forthwith," denying the motion by operation of law. Thus, appellant filed his appeal after the expiration of 120 days.

It is well-settled that appellate courts cannot extend the time for filing an appeal. Pa.R.A.P. 105(b) provides as follows:

An appellate court for good cause shown may upon application enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time, but the court may not enlarge the time for filing a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for review. (emphasis added)

However, the official note to Pa.R.A.P. 105 creates an exception to this rule: "Subdivision (b) of this rule is not intended to affect the power of a court to grant relief in the case of fraud or breakdown in the processes of a court." As recognized by this Court, the official note makes it clear that the appellate courts retain the power to grant relief from the effects of a breakdown in the court system:

It is well-established that the extension of the filing period or the allowance of an appeal nunc pro tunc will be permitted only in extraordinary circumstances, namely, fraud or some breakdown in the processes of the court. Pa.R.A.P. 105(b) note; West Penn Power Co. v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975); Commonwealth v. Englert, 311 Pa.Superior 78, 81, 457 A.2d 121, 123 (1983); Maxton v. Philadelphia Housing Authority, 308 Pa.Superior 444, 448, 454 A.2d 618, 620 (1982); Conrad v. Kemmerer, 301 Pa.Superior 410, 412, 447 A.2d 1032, 1034 (1982); Marcinak v. Lavery, 286 Pa.Superior 92, 96, 428 A.2d 587, 589 (1981); International Brotherhood of Electrical Workers v. Cardo, 259 Pa.Superior 65, 67, 393 A.2d 718, 719 (1978); Provident National Bank v. Rooklin, 250 Pa.Superior 194, 199, 378 A.2d 893, 895 (1977); MacKanick v. Rubin, 244 Pa.Superior 467, 470-71, 368 A.2d 815, 817 (1976); Leveto v. National Fuel Gas Distribution Corp., 243 Pa.Superior 510, 516, 366 A.2d 270, 273 (1976); Scharfman v. Philadelphia Transportation Co., 234 Pa.Superior 563, 571 n. 7, 340 A.2d 539, 543 n. 7 (1975); Riley's Grille Liquor License Case, 213 Pa.Superior 46, 48, 245 A.2d 725, 726 (1968); Southwest Philadelphia Plumbing Supply v. Catanzaro, 181 Pa.Superior 209, 212, 124 A.2d 476, 477 (1956); Perin v. Gochnauer, 173 Pa.Superior 609, 612, 98 A.2d 755, 756-57 (1953).

Moring v. Dunne, 342 Pa.Super. 414, 417, 493 A.2d 89, 91 (1985). This Court has further stated:

[P]rior to the adoption of the Pennsylvania Rules of Appellate Procedure, (Pa.R.A.P.), 42 Pa.C.S., Pennsylvania case law was unequivocal on the effect of a failure to perfect a timely appeal. Commonwealth v. Lord, 230 Pa.Super. 96, 100, 326 A.2d 455, 458 (1974), summarized the applicable case law:

"In taking an appeal, the appellant must comply with all applicable statutory requirements. Massachusetts Bonding & Insurance Company v. Johnston & Harder, Inc., 330 Pa. 336, 199 A. 216 (1938). Pursuant to the Act of July 31, 1970, P.L. 673, No. 223, art. V, § 502 (17 P.S. § 211.502(a)) an appeal to this court 'from any order shall be filed within thirty days of its entry.' Time limitations for the taking of appeals have been strictly construed by Pennsylvania courts in the past. See, e.g., Commonwealth v. Peters, 178 Pa.Super. 82, 113 A.2d 327 (1955); Commonwealth v. Schneiderman, 162 Pa.Super. 461, 58 A.2d 196 (1948). It is also recognized that '[w]hen an Act of Assembly fixes the time within which an appeal may be taken, courts have no power to extend it or to allow an appeal nunc pro tunc, except where there is a showing of fraud or its equivalent.' Commonwealth v. Wright, 187 Pa.Super. 39, 42, 142 A.2d 336, 337 (1958). See also Ifft v Hunter, 202 Pa.Super. 487, 489, 198 A.2d 436, 437 (1964) ('we [Superior Court] must take notice of the defect [untimely appeal] and there is no room for the exercise of discretion on our part'); Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965) (cases cited therein); Commonwealth ex rel. Nicosia v. Nicosia, 184 Pa.Super. 440, 136 A.2d 135 (1957)."

Provident National Bank v. Rooklin, 250 Pa.Super. 194, 196-97, 378 A.2d 893, 894 (1977) (emphasis added). Although our courts demand strict compliance with statutorily mandated time limitations for the taking of appeals, there has long been established an exception where a "showing of fraud or its equivalent" will excuse an untimely appeal.

Decisions both prior and subsequent to the effective date of Rule 1410 have held that...