J-S77023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ERIC COXRY

Appellant No. 491 EDA 2014

Appeal from the Judgment of Sentence July 22, 2013

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0001939-2009

BEFORE: GANTMAN, J., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.: FILED DECEMBER 22, 2014

Eric Coxry appeals from the judgment of sentence1imposed following 

his conviction for first degree murder2, conspiracy3and burglary4. We quash 

this appeal as untimely for the reasons provided below.

Eric Coxry was charged with first degree murder for the shooting death 

of Jonas Suber. On July 19, 2013, a jury found Coxry guilty of first degree 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Although Coxry’s brief states that he is appealing from the order denying 

his post-sentence motions, his appeal actually is from his judgment of 

sentence. Commonwealth v. Chamberlain, 658 A.2d 395, 397 

(Pa.Super.1995) (“[an] order denying post-sentence motions acts to finalize 

the judgment of sentence for purposes of appeal. Thus, the appeal is taken 

from the judgment of sentence, not the order denying post-sentence 

motions”). We have amended the appeal paragraph of the above caption to 

reflect this fact.

2 18 Pa.C.S. § 2502.

3 18 Pa.C.S. § 903.

4 18 Pa.C.S. § 3502.
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murder. The Commonwealth offered to waive its right to seek the death 

penalty if Coxry agreed to waive all rights of appeal and thus spend the rest 

of his life in prison. Coxry accepted the Commonwealth’s offer. Coxry, the 

Commonwealth and the trial court all signed the following waiver form:

In consideration of the Commonwealth of 

Pennsylvania foregoing pursuing the death penalty 

following my being found guilty by a jury on July 19 

2013 of 1st Degree Murder in the murder on October 

21, 2006 of Mr. Jonas ‘Sonny’ Suber in the City of 

Coatesville, Chester County, Pennsylvania, a crime I 

do acknowledge having committed, I hereby agree 

as follows:

1. I agree to the imposition of the sentence on the 

charge of 1st Degree Murder to life imprisonment 

without the possibility of parole. I agree to the 

imposition of the sentence of 20 to 40 years on the 

charge of Criminal Conspiracy to commit 1st Degree 

Murder, concurrent with the life sentence, and the 

imposition of the sentence of 10 to 20 years on the 

charge of Burglary, concurrent with the conspiracy 

sentence.

2. I agree that I will not seek pardon or commutation 

at any time in the future and, in that respect, agree 

that I will spend the rest of my life in prison for 

having murdered Mr. Suber. 

3. I agree to waive, and I do, knowingly, voluntarily 

and intelligently, waive any rights, presently known 

and presently unknown, that I now have, could have, 

or might in the future have, from now until the end 

of time, to appeal directly or collaterally, to seek 

post-sentence relief, to seek post-conviction relief, to 

seek Federal or other habeas corpus relief, and/ or to 

claim that my attorneys were ineffective in any 

respect for reasons presently known and presently 

unknown with regard to their representation of me, 

whether in regard to any pre-trial matter, anything 
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that they did or did not do for me during trial, and/or 

their handling of my defense at trial.1

1 The sole exception to my waiver of rights is that I 

may file a motion challenging the Department of 

Corrections' authority to deduct, pursuant to 42 

Pa.C.S. §9728(b)(5) or any other act authorizing the 

Department of Corrections to deduct funds from 

inmate accounts, funds from my inmate account. I 

understand this is the sole exception to my waiver of 

rights.

4. I acknowledge that in deciding whether or not to 

accept and sign this waiver of rights I have consulted 

fully with my death penalty attorney, David P. Clark, 

Esquire, and am satisfied with his representation and 

advice. I further acknowledge that I have carefully 

considered my options, in consultation with my 

counsel, Mr. Clark, and sign this waiver of rights as 

an act of my own free will intending to be legally 

bound.

The trial court questioned Coxry on the record and determined that he 

entered into this agreement knowingly, voluntarily and intelligently. N.T., 

7/22/13, pp. 5-9. The court sentenced Coxry to life imprisonment without 

the possibility of parole for first degree murder and concurrent terms of 20-

40 years’ imprisonment for conspiracy and 10-20 years’ imprisonment for 

burglary. N.T., 7/22/13, p. 24.

On August 15, 2013, more than 10 days after sentencing, Coxry filed a 

motion entitled as a “post-sentence motion” to withdraw his waiver of his 

rights. On August 22, 2013, the court scheduled a hearing on Coxry’s 

motion. On January 21, 2014, after two days of hearings, the court denied 

Coxry’s motion. On February 7, 2014, Coxry filed a notice of appeal. Both 

Coxry and the trial court complied with Pa.R.A.P. 1925.
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In his lone issue on appeal, Coxry claims that his waiver of his 

appellate rights was not knowing, voluntary or intelligent5. He argues that 

he waived his appellate rights due to fear that the jury would vote for the 

death penalty, but that neither the trial court nor his attorney fully explained 

his appellate rights or appellate procedure to him prior to his waiver. 

Coxry failed to file timely post-sentence motions to withdraw his 

waiver of his appellate rights. As a result, his appeal is untimely, 

necessitating quashal of his appeal. 

____________________________________________

5 Coxry states the issue as follows:

The lower court erred in denying the Defendant's 

Post-Sentence Motion. The Defendant's agreement 

on July 22, 2013 to waive his appellate rights in 

exchange for a life sentence was not a knowing, 

voluntary, intelligent waiver in that:

a. the decision to waive his appellate rights was 

influenced by the threat of the death penalty; 

b. the document signed by the Defendant did not 

fully explain his appellate rights and the appellate 

procedure;

c. the colloquy conducted by the lower court did not 

fully explain the Defendant's appellate rights and the 

appellate procedure;

d. defense counsel did not fully explain the 

Defendant's appellate rights and the appellate 

procedure; and

e. defense counsel did not advise the Defendant of 

the merit of any appellate issues.

Pa.R.A.P. 1925(b) statement, ¶ 1.
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To elaborate, Coxry’s waiver of his appellate rights is equivalent to a 

guilty plea. In Commonwealth v. Barnes, 687 A.2d 1163 

(Pa.Super.1996), the jury found the defendant guilty of first degree murder. 

Before the death penalty phase, 

fearful that the Commonwealth would be successful 

in obtaining the death penalty, [the defendant] 

elected to forego his rights to file any motions for 

post-trial relief, including his right to file postsentencing motions, appeal to any higher courts, and 

to seek federal habeas corpus relief. In return, the 

Commonwealth agreed not to seek the death 

penalty. 

Id., 687 A.2d at 1164. The court sentenced the defendant to life 

imprisonment, but he moved to withdraw his waiver of rights. The trial 

court denied the defendant’s motion, and this Court affirmed. We observed 

that the defendant “entered the functional equivalent of a plea of guilt. A 

plea of guilt that is motivated by a fear that the prosecution may obtain the 

death penalty is valid as long as the guilty plea is entered knowingly and 

voluntarily.”6 Id. at 1167 (emphasis added) (citing Commonwealth v. 

Bhillips, 380 A.2d 1210 (1977)).

Accordingly, we analyze whether Coxry’s motion to withdraw his 

waiver of appellate rights is timely under the rules governing post-sentence 

____________________________________________

6 Barnes went on to hold that the record demonstrated that the defendant 

relinquished his post-trial rights knowingly, voluntarily, and intelligently, 

notwithstanding his argument that he was suffering from a migraine 

headache and diabetes at the time he waived these rights. Barnes, 687 

A.2d at 1167.
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motions to withdraw guilty pleas. The Rules of Criminal Procedure require 

the defendant to file post-sentence motions challenging the validity of a 

guilty plea no later than 10 days after imposition of sentence. Pa.R.Crim.P. 

720(A)(1) & (B)(1)(a)(i). Although timely post-sentence motions toll the 

30-day appeal period, post-sentence motions filed after the 10-day deadline 

do not toll the 30-day appeal period, even if the trial court holds a hearing 

and decides the motions on their merits. Commonwealth v. Dreves, 839 

A.2d 1122 (Pa.Super.2003) (en banc). In Dreves, the court sentenced the 

defendant on May 10, 2001, and the defendant filed an untimely postsentence motion to withdraw his guilty plea on May 30, 2001. On August 6, 

2001, following a hearing, the court denied the defendant’s motion. On 

September 4, 2001, the defendant filed an appeal to this Court. We 

quashed the appeal, reasoning: “[S]ince [the defendant] did not file a timely 

post-sentence motion, his appeal period began to run from the date 

sentence was imposed, i.e., May 10, 2001. Accordingly, [his] notice of 

appeal, which was filed on [September] 4, 2001, almost four months after 

the imposition of sentence, was clearly untimely.” Dreves, 839 A.2d at 

1127.

The outcome of this appeal is the same as Dreves. The court 

sentenced Coxry on July 22, 2013. Coxry filed an untimely motion to 

withdraw his waiver of appellate rights more than 10 days later, on August 

15, 2013. The court scheduled hearings on Coxry’s motion and denied it on 
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January 21, 2014. Coxry appealed to this Court on February 7, 2014. 

Because Coxry failed to file a timely motion to withdraw his waiver of 

appellate rights, his appeal period began running on the date of sentencing, 

July 22, 2013. Thus, his appeal on February 7, 2014 was untimely, 

requiring quashal of his appeal7. 

____________________________________________

7 Coxry’s appeal is untimely even if we regard his motion to withdraw his 

waiver of appellate rights as a motion for reconsideration under 42 Pa.C.S. § 

5505 instead of as a post-sentence motion. 

Section 5505 provides: “Except as otherwise provided or prescribed by law, 

a court upon notice to the parties may modify or rescind any order within 30 

days after its entry, notwithstanding the prior termination of any term of 

court, if no appeal from such order has been taken or allowed.” Under 

section 5505, if no appeal had been taken, within 30 days after the 

imposition of sentence, the trial court has the discretion to grant a request 

to file a post-sentence motion nunc pro tunc. Dreves, supra, 829 A.2d at 

1128. If the trial court expressly grants such a request within 30 days after 

imposition of sentence, the time for filing an appeal is tolled until after 

resolution of the post-sentence motion. Id. In addition, “the request for 

nunc pro tunc relief is separate and distinct from the merits of the 

underlying post-sentence motion. The trial court's resolution of the merits of 

the late post-sentence motion is no substitute for an order expressly 

granting nunc pro tunc relief.” Id. at 1128-29. “Also, when the trial court 

grants a request to file a post-sentence motion nunc pro tunc, the postsentence motion filed as a result must be treated as though it were filed 

within the 10-day period following the imposition of sentence.” Id.

Here, on August 22, 2013, 31 days after imposition of sentence, the court 

scheduled a hearing on Coxry’s motion. In the first place, the order was a 

nullity under section 5505, because the court issued the order more than 30 

days after sentencing. Commonwealth v. Liebensperger, 904 A.2d 40, 

44 (Pa.Super.2006) (section 5505 only permits court to modify or rescind 

order within 30 days after final order). Moreover, scheduling a hearing was 

not equivalent to granting leave nunc pro tunc to file a post-sentence 

motion. Commonwealth v. Butler, 566 A.2d 1209, 1211 (Pa.Super.1989) 

(section 5505 does not authorize court to schedule hearing during 30 day 

(Footnote Continued Next Page)
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Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/22/2014

(Footnote Continued) _______________________

period but grant relief after 30 day period; order granting relief must be 

entered during 30 day period). Thus, Coxry’s appeal is untimely when 

viewed through the prism of section 5505.