Com. v. Rosario, C.

J-S32020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

CHRISTIE ROSARIO

Appellant No. 2985 EDA 2016

Appeal from the Judgment of Sentence Entered August 25, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No: CP-45-SA-0000096-2016

BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 18, 2017

Appellant Christine Rosario pro se appeals from the August 25, 2016

judgment of sentence entered in the Court of Common Pleas of Monroe

County (“trial court”), following her summary conviction for violating Section

13-1333(a)(1) of the Public School Code (“Code”), 24 P.S. § 13-1333(a)(1),

governing compulsory school attendance. Upon review, we dismiss the

instant appeal.

The facts and procedural history of this case are undisputed. Briefly,

on June 3, 2015, Appellant was charged under Section 13-1333(a)(1) of the

Code as a result of her daughter’s nine unexcused absences from

elementary school during the 2014-2015 school year. Section 13-

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*
Former Justice specially assigned to the Superior Court.
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1333(a)(1) provides in pertinent part that “[e]very parent . . . having control

or charge of any child or children of compulsory school age, who shall fail to

comply with the provisions of this act . . . shall on summary conviction

thereof, be sentenced to pay a fine . . . not exceeding $300.” 1 24 P.S. § 13-

1333(a)(1). On May 9, 2016, a magisterial district judge (“MDJ”) found

Appellant guilty under Section 13-1333(a)(1). On June 21, 2016, more than

30 days after her conviction, Appellant filed a summary appeal to the trial

court. Following a de novo hearing, the trial court found Appellant guilty of

violating Section 13-1333(a)(1) and sentenced her to a fine of $300.

Appellant appealed to this Court.

Upon our review of the record, we dismiss the instant appeal for want

of jurisdiction. Under Pennsylvania Rule of Criminal Procedure 460,

Appellant was required to file her summary appeal in the trial court “within

30 days after the entry of . . . conviction.” Pa.R.Crim.P. 460. The question

of timeliness of an appeal is jurisdictional. Commonwealth v. Moir, 766

A.2d 1253, 1254 (Pa. Super. 2000). Here, Appellant appealed her May 9,

2016 conviction on June 21, 2016, more than 30 days after her conviction

before the MDJ. Moreover, our review of the de novo hearing transcript

reveals that Appellant failed to explain why she filed the notice of appeal

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1
The General Assembly has amended the Code, including Section 13-1333,
effective November 3, 2016. As this case arose in June 2015, the
amendments do not apply.

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more than 30 days after her May 9, 2016 conviction. Additionally, the trial

court docket is bereft of any indication that Appellant attempted to request

any nunc pro tunc relief to cure the untimeliness of her summary appeal.

Thus, the trial court was without jurisdiction to entertain Appellant’s

summary appeal. Because the trial court lacked jurisdiction, we dismiss the

instant appeal.2

Appeal dismissed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/18/2017

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2
Even if we could have addressed Appellant’s claims on appeal, we would
have rejected them because she challenges only the trial court’s weight of
the evidence and credibility determinations. It is well-settled that this Court
may not re-weigh the evidence or substitute its judgment for that of the trial
court sitting as the fact-finder. See Commonwealth v. Queen, 639 A.2d
443, 445 (Pa. 1994) (noting that an appellate court may “not substitute [its]
credibility determinations for that of the suppression court.”).

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