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COMMONWEALTH PENNSYLVANIA v. RUSSELL A. MOLYNEAUX (05/02/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 2, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
RUSSELL A. MOLYNEAUX, APPELLANT

No. 1386 October Term, 1978, Appeal from Order in the Court of Common Please of Monroe County, Criminal, No. 201 October Term, 1977.

COUNSEL

James P. Gregor, Public Defender, Stroudsburg, for appellant.

Ralph A. Matergia, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

Cercone, President Judge, and Hester and Hoffman, JJ.

Author: Per Curiam

[ 277 Pa. Super. Page 265]

On January 5, 1978, appellant Russell A. Molyneux pled guilty to one count of criminal attempt (burglary) in the Court of Common Pleas, Monroe County Branch. At the sentencing hearing on March 1, 1978, he was sentenced to 11 1/2 to 23 months imprisonment and ordered to pay a $400.00 fine. No appeal was taken, but on March 28, 1978, appellant filed a petition with the court seeking reconsideration of the sentence. The petition was denied on April 3, 1978, following a hearing. On this appeal, filed April 21, 1978, appellant urges us to remand for resentencing. Because the appeal was not timely filed, we quash.

A notice of appeal must be filed within thirty days after the entry of the order from which the appeal is taken. Pa.R.App.P. 903(a); 42 Pa.C.S.A. ยง 5571;*fn1 Commonwealth v. Gottshalk, 276 Pa. Super. 102, 419 A.2d 115, (1980). A motion for reargument or rehearing does not extend the time for taking an appeal from a judgment of sentence, Commonwealth v. Lord, 230 Pa. Super. 96, 326 A.2d 455 (1974); cf. Provident National Bank v. Rooklin, 250 Pa. Super. 194, 378 A.2d 893 (1977), nor is the time extended by a petition for

[ 277 Pa. Super. Page 266]

    reconsideration or modification of sentence. Commonwealth v. Dorman, 272 Pa. Super. 149, 414 A.2d 713 (1979); Commonwealth v. Wilkinson, 260 Pa. Super. 778, 393 A.2d 1020 (1978).*fn2

The judgment of sentence in the instant case was entered on the docket on March 1, 1978, thus making it appealable. Pa.R.App.P. 301; cf. Commonwealth v. Laudenslager, 260 Pa. Super. 395, 394 A.2d 985 (1978). At that time, appellant was informed that if he desired to appeal to this Court, then he must do so within thirty days. He was further advised that one of the grounds he may raise on that appeal could be "whether . . . the sentence was proper". N.T. 3/1/78, P. 4; cf. Pa.R.Crim.P. 1405(c). Yet the appeal was not filed until 51 days following the judgment of sentence.

An appellate court may not enlarge the time for filing a notice of appeal. Pa.R.App.P. 105; Rooklin, supra; In re Kemmerer, 46 Pa. Commw. 455, 405 A.2d 1108 (1979); Szura v. Zoning Hearing Bd. of Wyo. Borough, 40 Pa. Commw. 172, 397 A.2d 33 (1979). Further, timeliness of an appeal is a jurisdictional question, Dorman, supra; Strickler v. United Elevator Co., Inc., 257 Pa. Super. 542, 391 A.2d 614 (1978); Leveto v. National Fuel Gas Dist. Corp., 243 Pa. Super. 510, 366 A.2d 270 (1976), allowing this Court to consider the issue sua sponte. Commonwealth v. Gottshalk, supra; cf. Cipolla v. Cipolla, 264 Pa. Super. 53, 398 A.2d 1053 (1979); Polascik v. Baldwin, 245 Pa. Super. 1, 369 A.2d 263 (1976).

[ 277 Pa. Super. Page 267]

Since the appeal was not timely filed, we are without jurisdiction to entertain it.

Appeal quashed.


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