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09/17/97 COMMONWEALTH PENNSYLVANIA v. DAVID JONES

September 17, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
DAVID JONES, APPELLANT



Appeal from the Order of the Superior Court entered March 26, 1996 at No. 0376PGH96 quashing the appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division, entered January 19, 1996 at No. CC 93-05321.

Composition OF The Court: Mr. Chief Justice John P. Flaherty. Zappala, Cappy, Castille, Nigro, Newman, JJ.

The opinion of the court was delivered by: Newman

MADAME JUSTICE NEWMAN

DECIDED: SEPTEMBER 17, 1997

David Jones (Appellant) appeals from the Order of the Superior Court quashing his appeal from the Court of Common Pleas of Allegheny County (trial court) as untimely. Based on our recent decision in Smith v. Pennsylvania Board of Probation and Parole, 546 Pa. 115, 683 A.2d 278 (1996), we reverse the Order of the Superior Court and remand for further proceedings.

Facts and Procedural History

On March 7, 1994, a jury found Appellant guilty of receiving stolen property *fn1 in connection with his possession of a stolen cellular phone. The trial court sentenced Appellant to a term of incarceration of not less than one and one-half years nor more than five years. He did not file a direct appeal.

Appellant filed a pro se petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. and received appointed counsel. Counsel filed a "no merit" letter, concluding that there were no cognizable issues for appeal, and requested permission to withdraw as counsel. The trial court permitted counsel to withdraw and notified Appellant that he had the option of either retaining private counsel or proceeding pro se. He chose to proceed pro se. Without a hearing, the trial court dismissed Appellant's PCRA petition by Order dated January 19, 1996. He had thirty days, or until February 20, 1996, to file an appeal of this Order. *fn2 Pa.R.A.P. 903.

On February 17, 1996, acting pro se, Appellant delivered his notice of appeal to the prison postal clerk at the State Correctional Institution at Greensburg, where he was incarcerated. He used a Postal Service Form 3800, Certified Mail, and Postal Service Form 3811, Return Receipt Requested, to mail his appeal. The certified mail form indicates Appellant mailed this appeal on February 17, 1996. The Allegheny County Prothonotary received the appeal on February 22, 1996.

The Superior Court dismissed the appeal sua sponte as untimely because the prothonotary did not receive it within thirty days of the date of the trial court Order. Appellant filed a pro se Motion to Reconsider, which the Superior Court denied. We granted allocatur to consider whether our decision in Smith concerning timely filing pursuant to Pa.R.A.P. 1514 extends to appeals from court orders pursuant to Pa.R.A.P. 903.

Discussion

Rule 903 of the Pennsylvania Rules of Appellate Procedure governs appeals from court orders and provides, in pertinent part, as follows:

RULE 903. TIME FOR APPEAL

(a) General Rule. Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the ...


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