HomeMy WebLinkAboutCP-21-MD-0489-2007
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
vs. : CP-21-MD-489-2007
:
:
LEE E. STRAWSER :
IN RE: OPINION PURSUANT TO RULE 1925
Following hearing on the petition of the defendant for leave to file an appeal nunc pro
tunc, we are satisfied that the following are the facts.
On April 30, 2007, defendant appeared pro se at a summary trial before Magisterial
District Judge Vivian Cohick and was found guilty of reckless driving. After finding him guilty,
Judge Cohick instructed him that he had a right to appeal her decision within thirty (30) days of
the proceedings. Defendant also received notice of his right to appeal in the summons to appear
before the magisterial district judge and the summary trial notice mailed to him. Defendant did
not file his appeal within the requisite thirty-day time period. On June 25, 2007, the defendant
filed a petition for leave to file an appeal nunc pro tunc.
Notice of an appeal of a summary proceeding to a Court of Common Pleas must be filed
with the clerk of courts within thirty (30) days of the entry of a conviction. Pa.R.Crim.P. No.
460(A). This established time for the filing of an appeal cannot be extended as a matter of grace
or mere indulgence. See Bass v. Commonwealth, 401 A.2d 1133, 1135 (Pa. 1979) (citing West
Penn Power Co. v. Goddard, 333 A.2d 909 (Pa. 1975)). It has been held that counsel’s non-
negligent failure to file an appeal, which was corrected in a very short time, justified the grant of
an appeal nunc pro tunc. See Bass, 401 A.2d at 1135 (granting of leave to file appeal nunc pro
tunc where counsel’s non-negligent failure to file a timely appeal was corrected within a very
CP-21-MD-489-2007
short time, and any prejudice to the opposing side would necessarily be minimal.) Negligence,
however, which results in the filing of an untimely appeal is not grounds for such a grant. See id.
Moreover, in cases where the court finds that an individual was properly and fully advised of his
right to appeal by the district judge, leave to grant an appeal nunc pro tunc should be denied. See
Com. v. Jarema, 590 A.2d 310, 313 (Pa.Super. 1991).
In the instant case, the defendant has failed to show that the delay in filing the appeal
resulted from anything other than the defendant’s own negligence. The only reason defendant
provides for the delay is that he was confused about the date by which he had to file an appeal.
His confusion is not a valid excuse under Pennsylvania law. Instead, defendant has the burden of
demonstrating that the delay in filing was due to extraordinary circumstances involving fraud,
ineffectiveness of counsel, or a breakdown in the court’s operations through a default of its
officers, id., or was the result of non-negligent action by his counsel. See Bass v.
Commonwealth, 401 A.2d 1133, 1135 (Pa. 1979). The defendant has wholly failed to meet this
burden.
Assuming arguendo that defendant is alleging a breakdown in the court’s operations
through some default of its officers, an examination of the record shows otherwise. Judge
Cohick testified that she instructed the defendant that he had a right to appeal her decision within
thirty days. Similarly, both the summons to appear before Judge Cohick (Cmwlth. Ex. 2) and the
summary trial notice mailed to defendant (Cmwlth. Ex. 3) notified the defendant of his right to
appeal within thirty days. It is apparent that there was no breakdown in court operations. In fact,
the defendant was notified on three separate occasions of the time period by which he must file
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CP-21-MD-489-2007
his appeal. As defendant was clearly notified of his right to appeal, his petition for leave to file
an appeal nunc pro tunc was properly denied.
October 25, 2007 _______________________________
Kevin A. Hess, J.
Michelle H. Sibert, Esquire
Chief Deputy District Attorney
Karl E. Rominger, Esquire
For the Defendant
:rlm
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