Opinion
J-S32020-17 No. 2985 EDA 2016
07-18-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. CHRISTIE ROSARIO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered August 25, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No: CP-45-SA-0000096-2016 BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD, JJ. MEMORANDUM BY STABILE, J.:
Former Justice specially assigned to the Superior Court.
Appellant Christine Rosario pro se appeals from the August 25, 2016 judgment of sentence entered in the Court of Common Pleas of Monroe County ("trial court"), following her summary conviction for violating Section 13-1333(a)(1) of the Public School Code ("Code"), 24 P.S. § 13-1333(a)(1), governing compulsory school attendance. Upon review, we dismiss the instant appeal.
The facts and procedural history of this case are undisputed. Briefly, on June 3, 2015, Appellant was charged under Section 13-1333(a)(1) of the Code as a result of her daughter's nine unexcused absences from elementary school during the 2014-2015 school year. Section 13- 1333(a)(1) provides in pertinent part that "[e]very parent . . . having control or charge of any child or children of compulsory school age, who shall fail to comply with the provisions of this act . . . shall on summary conviction thereof, be sentenced to pay a fine . . . not exceeding $300." 24 P.S. § 13-1333(a)(1). On May 9, 2016, a magisterial district judge ("MDJ") found Appellant guilty under Section 13-1333(a)(1). On June 21, 2016, more than 30 days after her conviction, Appellant filed a summary appeal to the trial court. Following a de novo hearing, the trial court found Appellant guilty of violating Section 13-1333(a)(1) and sentenced her to a fine of $300. Appellant appealed to this Court.
The General Assembly has amended the Code, including Section 13-1333, effective November 3, 2016. As this case arose in June 2015, the amendments do not apply.
Upon our review of the record, we dismiss the instant appeal for want of jurisdiction. Under Pennsylvania Rule of Criminal Procedure 460, Appellant was required to file her summary appeal in the trial court "within 30 days after the entry of . . . conviction." Pa.R.Crim.P. 460. The question of timeliness of an appeal is jurisdictional. Commonwealth v. Moir , 766 A.2d 1253, 1254 (Pa. Super. 2000). Here, Appellant appealed her May 9, 2016 conviction on June 21, 2016, more than 30 days after her conviction before the MDJ. Moreover, our review of the de novo hearing transcript reveals that Appellant failed to explain why she filed the notice of appeal more than 30 days after her May 9, 2016 conviction. Additionally, the trial court docket is bereft of any indication that Appellant attempted to request any nunc pro tunc relief to cure the untimeliness of her summary appeal. Thus, the trial court was without jurisdiction to entertain Appellant's summary appeal. Because the trial court lacked jurisdiction, we dismiss the instant appeal.
Even if we could have addressed Appellant's claims on appeal, we would have rejected them because she challenges only the trial court's weight of the evidence and credibility determinations. It is well-settled that this Court may not re-weigh the evidence or substitute its judgment for that of the trial court sitting as the fact-finder. See Commonwealth v. Queen , 639 A.2d 443, 445 (Pa. 1994) (noting that an appellate court may "not substitute [its] credibility determinations for that of the suppression court."). --------
Appeal dismissed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/18/2017