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COMMONWEALTH PENNSYLVANIA v. DENNIS E. FISHER (09/09/83)

SUPERIOR COURT OF PENNSYLVANIA


submitted: September 9, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
DENNIS E. FISHER, APPELLANT

No. 350 Philadelphia 1981, Appeal from the PCHA Order of the Court of Common Pleas of Luzerne County, Criminal at No. 1755 of 1980.

COUNSEL

Michael R. Kostelansky, Wilkes-Barre, for appellant.

Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Spaeth, President Judge, and Cavanaugh and Hoffman, JJ.

Author: Spaeth

[ 321 Pa. Super. Page 535]

This is an appeal from a judgment of sentence for criminal trespass. We quash the appeal as filed too late.

Whether an appeal has been filed in time is a jurisdictional question that may be raised by this court sua sponte. Commonwealth v. Jones, 307 Pa. Super. 558, 453 A.2d 1028 (1982). The notice of an appeal "shall be filed within 30 days after the entry of the order from which the appeal is taken." Pa.R.A.P. 903(a). The date of the entry of the order in a case such as this is the day the court imposes sentence on the defendant, informs him of his right to appeal within 30 days, and enters the judgment on the docket. Commonwealth v. Gottshalk, 276 Pa. Super. 102, 419 A.2d 115 (1980); Commonwealth v. Dorman, 272 Pa. Super. 149, 414 A.2d 713 (1979).

The record discloses that on December 16, 1980, appellant was sentenced and informed of his right to appeal "within

[ 321 Pa. Super. Page 53630]

days from today." N.T. 12/16/80 at 7. Appellant was also informed of his right to have counsel appointed to represent him in exercising this right. Id. Although, as transmitted to us, the record contains no docket entries, it does contain the original judgment of sentence, dated "12-16-80" and signed by the sentencing judge.

The notice of appeal to this court was filed on January 21, 1981.*fn1 Except in circumstances not of record here we cannot enlarge the time for taking an appeal. Pa.R.A.P. 105(b) and note thereto; Commonwealth v. Gottshalk, supra, 276 Pa. Superior Ct. at 105, 419 A.2d at 117.

The appeal is quashed.


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