Com. v. Propps, J. ( 2016 )

J. A25001/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JILLIAN EILEEN PROPPS, : No. 214 MDA 2016
:
Appellant :
Appeal from the Order Entered January 15, 2016,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-CR-0005888-2010
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 17, 2016
Jillian Eileen Propps appeals from the January 15, 2016 order entered
in the Court of Common Pleas of Dauphin County that denied her second
petition for expungement. We quash.
The trial court set forth the following:
. . . [O]n November 18, 2010, Trooper Shaun Pugh
of the Pennsylvania State Police filed a criminal
complaint against [a]ppellant for the charge of Theft
by Deception. The complaint alleged that
[appellant], as office manager for the victim,
Stoner Graphix, failed to deduct money out of her
paychecks for her dependent health insurance,
thereby depriving Stoner Graphix of $10,957.90. A
preliminary hearing was held on November 22, 2010,
and the charge was waived for court. The case was
scheduled before this Honorable Court on
September 19, 2011. However, on August 24, 2011,
* Former Justice specially assigned to the Superior Court.
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the Commonwealth filed a Motion for Dismissal upon
Satisfaction.
In this Motion, the Commonwealth averred
that [a]ppellant had paid the amount associated with
the charges and had paid the costs of court. Since
no use or threat of force was present in this matter,
and satisfaction had been made to the victim, the
Commonwealth requested that the matter be
dismissed upon satisfaction. The Motion was granted
by Order dated August 25, 2011, and the case was
dismissed pursuant to Pa.R.Crim.P. 586.
On December 22, 2014, [a]ppellant filed a
Petition for Expungement pursuant to Pa.R.Crim.P.
790. This Court issued an Order on January 20,
2015[1] denying [a]ppellant’s Petition, since
Pa.R.Crim.P. 586 dismissals are not eligible for
expungement under 18 Pa.C.S.[A.] § 9122.
Appellant sought reconsideration of this Order, which
was denied [on March 6, 2015].
Trial court opinion, 5/20/15 at 1-2, adopted by trial court opinion, 3/25/16.
The record reflects that on April 2, 2015, which was 71 days after the
trial court entered its order denying appellant’s petition for expungement,
appellant filed a notice of appeal to this court. On May 14, 2015, this court
ordered appellant to show cause as to why her appeal should not be
quashed as untimely pursuant to Pa.R.A.P. 903(a).2 See Commonwealth
v. Propps, No. 598 MDA 2015 (order of court, 5/14/15). On May 22, 2015,
appellant filed a timely memorandum in response to this court’s order to
1
The record reflects that the trial court dated the order January 20, 2015,
but that it was not docketed until January 21, 2015.
2
Pa.R.A.P. 903(a) requires that a notice of appeal be filed within 30 days
after the entry of the order from which the appeal is taken.
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show cause. In that memorandum, appellant’s counsel responded that he
filed appellant’s notice of appeal to this court late because he “erroneously
anticipated that upon being apprised of the applicable law regarding the
correct procedure in matters such as this, and realizing its mistake,” the trial
court would have afforded appellant a hearing. (Propps, No. 598 MDA
2015, appellant’s memorandum in response to show cause why appeal
should not be quashed, 5/22/15 at 2.) Appellant’s counsel further explained
that even though he was “well aware of the time limits enumerated in
Pa.R.A.P. 903(a),” he “determined the filing of [a] Notice of Appeal would no
longer afford the trial court the opportunity to correct its error. . . .” (Id. at
3-4.) On July 7, 2015, this court found that appellant failed to present a
legal argument to justify this court’s jurisdiction, and, as such, we quashed
appellant’s appeal as untimely. (Propps, No. 598 MDA 2015, order of court
7/7/15.)
On November 12, 2015, appellant filed another petition for
expungement. On January 15, 2016, the trial court denied and dismissed
that petition because it:
entered an Order on January 21, 2015 disposing of
[appellant’s] previously filed Petition for
Expungement. [Appellant] did not timely appeal this
Court’s January 21, 2015 Order, which has become a
final Order that cannot be reconsidered by the filing
of a new Petition.
Order of court, 1/15/16.
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On January 29, 2016, appellant filed a notice of appeal to this court
from the trial court’s January 15, 2016 order. On February 3, 2016, the trial
court ordered appellant to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. Appellant complied, and the trial court filed
a Rule 1925(a) opinion that adopted its May 20, 2015 Rule 1925(a) opinion
that it filed in the appeal docketed at 598 MDA 2015.
In her brief to this court, appellant’s counsel summarizes the
procedural history of the case and then states:
[u]nfortunately for [appellant], her prior counsel did
not grasp the interplay between a Motion for
Reconsideration and a Notice of Appeal. . . .
. . . . Instead, he filed a single notice of appeal to
this Court on April 2, 2015. Then, as one might
expect given this turn of events, this Court issued an
Order on July 7, 2015, quashing [appellant’s] prior
appeal as untimely. Sadly, this left [appellant] with
no review of [the trial court’s] order denying
expungement.
Given this state of affairs, the undersigned
filed a second Petition for Expungement . . . .
Appellant’s brief at 7-8.
This appeal amounts to nothing more than appellant’s attempt to
circumvent her failure to timely appeal the January 21, 2015 order that
denied and dismissed her petition for expungement, which was the final
appealable order in appellant’s quest for expungement. Although this court
afforded appellant the opportunity to show cause why her appeal should not
be dismissed as untimely, this court concluded that the reasons appellant set
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forth failed to present a legal argument to justify our jurisdiction.
Consequently, this court quashed the appeal as untimely. Nothing in the
Rules of Appellate Procedure or the laws of this Commonwealth entitles
appellant to yet another “bite at the apple.” Having failed to timely appeal
the trial court’s final order that denied and dismissed her petition for
expungement and having failed to justify this court’s jurisdiction in her
previous appeal at No. 598 MDA 2015, appellant’s filing of another petition
for expungement cannot and does not turn back time and breathe new life
into appellate review. Therefore, we quash this appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2016
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