Com. v. Green

Decision Date16 November 2004
Citation862 A.2d 613
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Edna L. GREEN, Appellant.
CourtPennsylvania Superior Court

Parviz Ansari, Bellefonte, for appellant.

Nathan L. Boob, Asst. Dist. Atty., Bellefonte, for Com., appellee.

BEFORE: FORD ELLIOTT, JOYCE, STEVENS, MUSMANNO, LALLY-GREE N, TODD, KLEIN, BENDER, and BOWES, JJ.

OPINION BY JOYCE, J.:

¶ 1 Appellant, Edna L. Green, appeals from the judgment of sentence imposed by the trial court on July 22, 2002. The sentence was imposed subsequent to a jury trial in which Appellant was found guilty of terroristic threats, and a bench trial in which Appellant was found guilty of the summary offense of harassment. After careful review, we quash this appeal.

¶ 2 The record reveals the following chronology of events. On December 27, 2001, Appellant was involved in an altercation with her neighbors, Daryl Peters and his wife, Monica Peters. As a result of this incident, Appellant was charged with several offenses. On May 7, 2002, a jury trial was held at the conclusion of which the jury found Appellant guilty of terroristic threats1 and not guilty of simple assault.2 The trial court found Appellant guilty of the summary offense of harassment.3 The court then ordered a Pre-Sentence Investigation report and sentencing was scheduled. 4

¶ 3 On July 22, 2002, the trial court sentenced Appellant to four years' probation and ordered her to pay a fine in the amount of $250.00 plus costs. Appellant was also ordered to have no contact with Daryl Peters and his wife, Monica Peters. Although the sentence was imposed on July 22, 2002, the order of sentence was filed (docketed) on July 31, 2002.

¶ 4 On August 2, 2002, Appellant filed her post-sentence motion alleging that the jury verdict was against the weight of the evidence, and seeking arrest of judgment or a new trial. Appellant also sought a modification of her sentence. Without explanation, in an order dated August 13, 2002 (docketed August 15, 2002), the trial court released Appellant from probation supervision and revoked all costs and fines imposed on Appellant. On August 16, 2002, the trial court entered an order (docketed on August 19, 2002) denying Appellant's post-sentence motion. Thereafter, on September 12, 2002, Appellant appealed to this Court. The trial court ordered Appellant to file a concise statement of matters complained of on appeal (Pa.R.A.P. 1925(b)) and she complied.

¶ 5 On appeal, the single issue raised by Appellant is "whether the trial court erred in denying [Appellant's] post-sentence motions when the jury's verdict was contrary to the weight of the evidence as no reasonable jury could have found [Appellant] guilty of making terroristic threats and when such verdict should have shocked the trial court's sense of justice?" Brief for Appellant, at 6 (capitalization omitted).

¶ 6 Before addressing the merits of Appellant's claim, we must address the timeliness of this appeal as it implicates our jurisdiction. Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581, 587 (1999) (appellate courts may consider the issue of jurisdiction sua sponte). Jurisdiction is vested in the Superior Court upon the filing of a timely notice of appeal. Commonwealth v. Miller, 715 A.2d 1203, 1205 (Pa.Super.1998). In the case at bar, the focus of our inquiry is whether Appellant's post-sentence motion, which was filed on August 2, 2002, was timely even though Appellant's sentence was pronounced on July 22, 2002 but was docketed on July 31, 2002. As we will explain below, the timeliness of Appellant's post-sentence motion relates to the timeliness of Appellant's notice of appeal.

¶ 7 Rule 720(A)(1) of the Pennsylvania Rules of Criminal Procedure provides as follows: "(1) Except as provided in paragraph (D) [dealing with summary cases], a written post-sentence motion shall be filed no later than 10 days after imposition of sentence." Id. (emphasis added). Herein, Appellant was sentenced on July 22, 2002. Pursuant to Rule 720(A)(1), Appellant had ten days from July 22, 2002 or until August 1, 2002, to file her post-sentence motion. Although dated August 1, 2002, Appellant's post-sentence motion was entered on the docket on August 2, 2002. Using the date on which the sentence was entered on the docket (July 31, 2002), Appellant's post-sentence motion would appear to be timely. However, utilizing the date on which Appellant's sentence was pronounced (July 22, 2002), Appellant's post-sentence motion would be untimely.

¶ 8 Against the above background we must determine whether the beginning of the ten-day period prescribed in Pa.R.Crim.P. 720(A)(1) refers to the date the sentence was pronounced or the date the sentence was entered on the docket. In our view, the beginning of the ten-day period refers to the date the sentence was pronounced and not the date the sentence was entered on the docket.

¶ 9 First, Pa.R.Crim.P. 720(A)(1) specifically refers to the date of imposition of sentence. Similarly, the comment to Rule 720(A)(1) also specifically refers to the date of imposition of sentence. Neither the rule nor the comment thereto refers to the date on which the sentence was docketed. These are strong indicators that in promulgating and adopting Rule 720(A)(1), the Pennsylvania Supreme Court intended the date of imposition of sentence as the reference point for computing the time for filing post-sentence motions and not the date on which the sentence was docketed. Secondly, had the intent been to begin the ten-day period on the date on which the sentence was docketed, it could have used the term "the date of entry"5 of the sentence. For instance, in other provisions of Pa.R.Crim.P. 720(A), the term "date of entry" was used as shown below:

(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). Along the same lines, the word entry was used in Pa.R.Crim.P. 720(A)(4) which provides that: "If the Commonwealth files a motion to modify sentence pursuant to Rule 721, the defendant's notice of appeal shall be filed within 30 days of the entry of the order disposing of the Commonwealth's motion." Id.

¶ 10 Another strong indication that the intent behind utilizing the date of imposition of sentence as the reference point rather than the date of docketing is Pa.R.Crim.P. 720(A)(3), which provides that "[i]f 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, except as provided in paragraph (A)(4)." Id. (emphasis added). The Comments to Pa.R.Crim.P. 720(A)(3) also reaffirm that "[i]f no timely post-sentence motion is filed, the defendant's appeal period runs from the date sentence is imposed."

¶ 11 Since Pa.R.Crim.P. 720(A)(1) and Pa.R.Crim.P. 720(A)(3) refer to the date of imposition of sentence but referred to the date of entry of an order in other aspects of Pa.R.Crim.P. 720, this shows that the reference to the date of imposition of sentence in Pa.R.Crim.P. 720(A)(1) was not by inadvertence. Accordingly, we must accept and apply the specific language of Pa.R.Crim.P. 720(A)(1). Pursuant to that language, the beginning of the ten-day period refers to the date of imposition of sentence and not necessarily the date the sentence was entered on the docket.6

¶ 12 Although the specific issue of whether date of imposition of sentence and not the date of docketing of the sentence should be utilized in computing the ten-day period for filing a post-sentence motion has not been addressed by our Courts, in computing this ten-day period, our Courts have often utilized the date of imposition of sentence as the reference point. These instances constitute implicit recognition that the date of imposition of the sentence should be used in the computation.

¶ 13 In Commonwealth v. Felmlee, 828 A.2d 1105, 1106-1107 (Pa.Super.2003) (en banc), we began our discussion of the issue of the untimeliness of Appellant's post-sentence motion by noting that "our initial review of the record in this matter ... appears to indicate that Appellant's post-sentence motion was filed 13 days after the imposition of sentence, which would make it untimely. Id. (emphasis added). We also noted that: "After receipt of [the] [a]ppellant's guilty plea the trial court imposed sentence on November 30, 2000. [The] [a]ppellant had until Monday, December 11, 2000, in which to file his post-sentence motion." Id. at 1107. From the above, it can be seen that the ten-day period was computed using the date of imposition of sentence. There was no reference to the date on which the sentence was docketed.

¶ 14 In Commonwealth v. Dreves, 839 A.2d 1122 (Pa.Super.2003), while addressing the issue of post-sentence motions, we noted that Dreves' sentence was imposed on May 10, 2001. Id. at 1125. Dreves filed his post-sentence motion on May 30, 2001, twenty days after the imposition of sentence. Id. at 1126. Ultimately, we determined that pursuant to Rule 720(A)(1), Dreves had ten days from May 10, 2001 to file his post-sentence motion, and that the post-sentence motion filed on May 30, 2001 was clearly untimely. Dreves, supra, at 1126. This is yet another instance in which our Court relied on the date of imposition of sentence in computing the ten-day period within which a post-sentence motion must be filed. Again, there was no reference to the date on which the sentence was docketed.

¶ 15 In Commonwealth v. Hockenberry, 455 Pa.Super. 626, 689 A.2d 283, 288 (1997), we were faced with a situation where the appellant filed an untimely post-sentence motion in...

To continue reading

Request your trial
56 cases
  • Madden v. Pennsylvania, CIVIL NO. 1:13-CV-2775
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • December 17, 2014
    ...("the Rules of Criminal Procedure are to be construed in accordance with the rules of statutory construction"); Commonwealth v. Green, 862 A.2d 613, 617-18 (Pa. Super. 2004) (en banc). We also observe here that while the December 21 order did not impose a deadline, when the order is silent ......
  • Commonwealth v. Wenzel
    • United States
    • Superior Court of Pennsylvania
    • March 17, 2021
    ...period shall fall on Saturday, Sunday, or a on a legal holiday, such day shall be omitted from the computation); Commonwealth v. Green , 862 A.2d 613, 618 (Pa. Super. 2004).2 "[A] court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstandin......
  • Com. v. Liebensperger
    • United States
    • Superior Court of Pennsylvania
    • July 14, 2006
    ...petition as untimely, we must determine whether we have jurisdiction to hear the instant appeal. See Commonwealth v. Green, 862 A.2d 613, 615 (Pa.Super.2004) (en banc) appeal denied, 584 Pa. 692, 882 A.2d 477 (2005), citing Commonwealth v. Yarris, 557 Pa. 12, 24, 731 A.2d 581, 587 (1999) (a......
  • Com. v. Wrecks, 2293 EDA 2006.
    • United States
    • Superior Court of Pennsylvania
    • August 14, 2007
    ...to file a direct appeal. Pa.R.Crim.P. 720(A)(3).2 This Court does not have jurisdiction to hear an untimely appeal. Commonwealth v. Green, 862 A.2d 613, 615 (Pa.Super.2004). ¶ 5 Post Conviction Relief Act. Despite the ten-day time limit for post-sentence motions, there are occasions when su......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT