Com. v. Lowman, M.
Com. v. Lowman, M. No. 135 WDA 2016
| Pa. Super. Ct. | Mar 6, 2017Background
- Michael Lowman was convicted after a bench trial of simple assault, recklessly endangering another person, official oppression, and conspiracy; sentenced December 22, 2015 to an aggregate four years’ probation.
- Lowman filed timely post-sentence motions on December 30, 2015.
- On January 21, 2016, while those motions were pending, Lowman filed a premature notice of appeal (docketed at No. 135 WDA 2016).
- The trial court ordered a Pa.R.A.P. 1925(b) statement; Lowman filed it. The post-sentence motions were deemed denied by operation of law on April 29, 2016.
- Despite the pending appeal at No. 135 WDA 2016, Lowman filed a second notice of appeal (docketed at No. 791 WDA 2016) and filed another Rule 1925(b) statement.
- The Superior Court concluded the appeals were duplicative, accepted the second appeal for review, and dismissed the appeal at No. 135 WDA 2016 as duplicative.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the premature notice of appeal (filed before disposition of post-sentence motions) created a jurisdictional defect | Commonwealth argues appellate jurisdiction requires a final judgment and that a timely post-sentence motion suspends finality | Lowman implicitly argues his appeal filings were proper or should be entertained | Court held a premature notice of appeal filed before disposition of post-sentence motions is interlocutory and unreviewable (Borrero rule) |
| Whether a premature notice of appeal can be related forward after post-sentence motions are decided by operation of law | Commonwealth notes procedure allows relating a premature appeal to the date post-sentence motions are resolved | Lowman relied on having filed timely post-sentence motions and Rule 1925(b) statements | Court acknowledged a premature appeal can be related forward to the denial date, but only if no duplicative appeal exists |
| Whether having two notices of appeal requires dismissal of one as duplicative | Commonwealth maintains duplicative appeals create procedural impediments | Lowman filed both notices and briefed both appeals identically | Court dismissed the earlier appeal (No. 135 WDA 2016) as duplicative and proceeded with the later-filed appeal (No. 791 WDA 2016) |
| Proper remedy when appeal is premature while post-sentence motions remain pending | Commonwealth cites quash/remand to let trial court rule nunc pro tunc | Lowman had his motions deemed denied by operation of law | Court treated the situation consistent with precedent: could relate prematurely filed appeal forward, but here duplication made dismissal appropriate |
Key Cases Cited
- Commonwealth v. Rojas, 874 A.2d 638 (Pa. Super. 2005) (addresses appellate jurisdiction and final orders)
- Commonwealth v. Patterson, 940 A.2d 493 (Pa. Super. 2007) (direct appeal lies from judgment of sentence)
- Commonwealth v. Borrero, 692 A.2d 158 (Pa. Super. 1997) (timely post-sentence motion suspends finality; premature appeal is interlocutory)
- Commonwealth v. Ratushny, 17 A.3d 1269 (Pa. Super. 2011) (premature notices of appeal may be treated as filed after denial of post-sentence motions)