Com. v. Walker
| Decision Date | 29 June 2005 |
| Court | Pennsylvania Superior Court |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Robert WALKER, Appellant. |
Gary S. Server, Philadelphia, for appellant.
Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Before: ORIE MELVIN, J., BENDER, J., and BECK, J.
OPINION BY BENDER, J.:
¶ 1 This is a direct appeal from a judgment of sentence imposed against Robert Walker ("Appellant") after he was convicted in a jury trial of rape, indecent assault, and corrupting the morals of a minor. On appeal, Appellant raises a single issue, asserting that the jury's verdict was against the weight of the evidence. Appellant's brief at 6. Because we find the present appeal untimely, we quash.
¶ 2 On October 24, 2003, at the conclusion of a jury trial, Appellant was found guilty of the aforementioned crimes. On January 28, 2004, Appellant was sentenced to seven-and-one-half to fifteen years' imprisonment, to be followed by five years of probation. Trial Court Opinion, 10/28/04, at 1. The docket reflects that Appellant filed a notice of appeal from the judgment of sentence on July 6, 2004. The docket reflects no other activity between imposition of sentence and the filing of a notice of appeal.
¶ 3 In contrast to the entries on the docket, the trial court opinion asserts that the Appellant "filed" a pro se petition for reconsideration on February 2, 2004, and that two days later Appellant's pro se motion was supplemented by the filing of a counseled petition for reconsideration of sentence. Trial Court Opinion at 1. Additionally, both the trial court opinion and the Appellant's brief state that Appellant's post-sentence motion was denied by operation of law on June 8, 2004, pursuant to Pa.R.Crim.P. 720(B)(3)(a). Appellant's brief at 5; Trial Court Opinion at 1. The certified record forwarded to this Court contains neither of the two above stated post-sentence motions or the subsequent order denying Appellant's post-sentence motion by operation of law.
¶ 4 Before we evaluate the merits of the issue that Appellant has raised, we must first determine whether Appellant's appeal had been timely filed. Pa.R.Crim.P. 720(A)(1) states that a "written post-sentence motion shall be filed no later than 10 days after imposition of sentence." If the post-sentence motion is timely filed "then the notice of appeal shall be filed within 30 days of the entry of the order deciding the motion" or "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." Pa.R.Crim.P. 720(A)(2)(a,b). On the other hand, if the post-sentence motion is not timely filed, then the defendant has 30 days after the imposition of sentence to file his notice of appeal. Pa.R.Crim.P. 720(A)(3); Commonwealth v. Bilger, 803 A.2d 199, 202 (Pa.Super.2002). According to the case history supplied by the trial court, Appellant filed a timely post-sentence motion, which was denied by operation of law when the court failed to either grant or deny the motion within the 120 day time limit of Pa.R.Crim.P. 720. Moreover, giving effect to the case history set forth by the trial court, Appellant's appeal was filed within 30 days of the denial of his post-sentence motion.
¶ 5 Despite the case history supplied by the trial court, as an appellate court, our review is limited by the contents of the certified record. Pa. R.A.P.1921; Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258, 264 (1974) (). See also Ritter v. Ritter, 359 Pa.Super. 12, 518 A.2d 319, 323 (1986)
(). All documents in a criminal matter must be filed with the clerk of courts in order to become part of the certified record. 42 Pa.C.S. § 2756(a)(1). Additionally, Appellant has the duty to ensure that all documents essential to his case are included in the certified record. Fiore v. Oakwood Plaza Shopping Ctr., 401 Pa.Super. 446, 585 A.2d 1012, 1019 (1991) (...
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