J-S59043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

SHALANA COLEEN SMITH 

Appellant No. 493 EDA 2017

Appeal from the Order January 9, 2017

In the Court of Common Pleas of Pike County Criminal Division at No(s): 

CP-52-SA-0000033-2016

BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 25, 2017

Appellant, Shalana Coleen Smith, appeals from an order denying her 

petition to appeal nunc pro tunc from her summary conviction in magisterial 

district justice court for disorderly conduct.1 The sole issue in this appeal is 

whether the Pike County Court of Common Pleas (“trial court”) abused its 

discretion in denying Appellant leave to appeal nunc pro tunc. Pursuant to 

Commonwealth v. Stock, 679 A.2d 760 (Pa. 1996), we conclude that the 

trial court abused its discretion, and we reverse and remand to the trial 

court for reinstatement of Appellant’s appeal from her summary conviction.

On September 12, 2016, a magisterial district justice found Appellant 

guilty of disorderly conduct, graded as a summary offense. Pet. For Appeal 

 

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 5503(a)(1). 
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From Summary Conviction Nunc Pro Tunc, 11/23/16, at ¶ 2. On September 

28, 2016, Appellant hired counsel for the purpose of appealing her summary 

conviction. Id. at ¶ 3. Appellant’s thirty-day deadline for appealing her 

summary conviction to the trial court was Wednesday, October 12, 2016. 

Id. at ¶ 4. At some point after October 12, 2016, counsel contacted the trial 

court to inquire when Appellant’s case was scheduled for trial. Id. at ¶ 7. 

Counsel learned at that point that no appeal was on the docket. Id. at ¶ 6.

On November 23, 2016, Appellant filed a petition in the trial court for 

leave to file an appeal from her summary conviction nunc pro tunc. During a 

hearing on this petition, without offering any evidence, counsel for Appellant 

argued that (1) his office mailed a notice of appeal and a check for the filing 

fee to the Clerk of Court on September 28, 2016, the date Appellant 

retained him, (2) the check was never returned, leading counsel to believe 

that the Clerk had docketed the appeal, and (3) the failure to docket the 

appeal constituted a breakdown in the operations of the court. N.T., 

12/7/16, at 3-4, 6-7.

On January 9, 2017, the trial court entered an order denying Appellant 

leave to appeal nunc pro tunc. Appellant filed a timely notice of appeal, and 

both Appellant and the trial court complied with Pa.R.A.P. 1925.2 The trial 

 

2 On February 28, 2017, the deadline for Appellant’s Pa.R.A.P. 1925(b) 

statement, Appellant filed her statement electronically with this Court 

instead of in the trial court (the proper forum). Pennsylvania law treats 

documents filed in the wrong court as having been filed in the correct court 
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court concluded that it “did not receive [Appellant’s] [n]otice of [a]ppeal” 

within the thirty-day appeal period. Trial Ct. Op., 3/31/17, at 3. The court 

continued:

[Appellant]’s counsel failed to present evidence that nonnegligent circumstances led to the failure to file and docket 

the notice of appeal in a timely manner. Counsel avers 

that he mailed the notice of appeal to the [Clerk of Court] 

thirteen (13) days before the deadline yet he failed to 

establish proof of mailing of the notice or receipt of the 

same by the [Clerk]. [Appellant] failed to present any 

evidence of receipt of the notice of appeal by the [Clerk,] 

such as a certified mail receipt or other indicia of receipt 

by that office. Counsel learned of the filing deficiency 

through his client, [Appellant,] after the filing deadline had 

passed . . . .

The [c]ourt afforded the parties an opportunity to present 

any testimony and evidence at the December 7, 2016 

hearing. [Appellant] presented no testimony or evidence in 

support of her Petition. Although defense counsel 

presented oral argument based on [Appellant]’s Petition, 

such argument does not constitute evidence and, as such, 

there is no evidentiary record to support [Appellant]’s 

claims for relief.

Id. at 4.

Appellant raises one issue in this appeal:

Did the lower court err in denying [Appellant] nunc pro 

tunc relief to file her summary appeal as [Appellant’s] 

appeal was not filed due to a breakdown in the court’s 

operations?

 

on the date of filing in the wrong court. See 42 Pa.C.S. § 5103(a). 

Consequently, we deem Appellant to have filed her Pa.R.A.P. 1925(b) 

statement in the trial court on February 28, 2017.
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Appellant’s Brief at 4. “An abuse of discretion standard governs our review 

of the propriety of a grant or denial of an appeal nunc pro tunc.” Stock, 

679 A.2d at 762 (citation omitted). 

An appeal from a summary conviction “shall be perfected by filing a 

notice of appeal within 30 days after the entry of . . . the conviction[.]” 

Pa.R.Crim.P. 460(A). We agree with the trial court that Appellant failed to 

present any evidence that her attorney mailed the notice of appeal to the 

trial court prior to the thirty-day deadline on October 12, 2016. 

Nevertheless, in view of Stock, we hold that the trial court abused its 

discretion by denying Appellant leave to appeal her summary conviction

nunc pro tunc.

In Stock, a district justice found defendant Stock guilty of three 

summary traffic offenses and sentenced him to pay three separate fines. 

Stock directed his attorney to appeal the summary conviction to the court of 

common pleas, but the attorney failed to do so in a timely manner, resulting 

in quashal of the appeal. The trial court denied Stock’s motion to appeal 

nunc pro tunc, and this Court affirmed. 

Our Supreme Court reversed and reinstated Stock’s appeal. The Court 

observed that defendants enjoy an “absolute right to appeal” under Article 

V, section 9 of the Pennsylvania Constitution, and “an appeal nunc pro tunc

is intended as a remedy to vindicate the right to an appeal where that right 

has been lost due to certain extraordinary circumstances.” Id. at 764 
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(citations omitted). The Court reasoned that Stock would lose his absolute 

right of appeal unless he received leave to appeal nunc pro tunc:

Were we to decide that [a]ppellant could not appeal nunc 

pro tunc despite the fact that his state constitutional right 

to appeal was denied him, [a]ppellant would have no other 

recourse. His conviction would stand and he would be 

without remedy. Appellant is not able to vindicate his right 

to appeal via the Post Conviction Relief Act[3] since he is 

not eligible to seek relief thereunder because he is not 

“incarcerated in this Commonwealth under a sentence of 

death or imprisonment or on parole or probation.” 42 

Pa.C.S.A. § 9543(2) (listing requirements to be eligible for 

relief under the PCRA) (emphasis added). In this regard, 

we find the reasoning of In the Interest of A.P., [617 

A.2d 764 (Pa. Super. 1992) (en banc)] persuasive and 

applicable herein. In A.P., a juvenile was adjudicated 

delinquent and he alleged that he was denied his right to 

appeal due to counsel failing to timely file an appeal. In 

A.P., the Superior Court reasoned

A.P. has no other means of redress; a nunc pro tunc

appeal is the only means by which a juvenile can 

challenge the stewardship of his trial counsel because 

the [PCRA] . . . which would be the remedy for an adult 

is not available to a juvenile. See In the Interest of 

DelSignore, [] 375 A.2d 803 ([Pa. Super.] 1977) . . . . 

If the constitutional right to appellate review is to mean 

anything under these circumstances, it must be 

protected through a nunc pro tunc appeal.

A.P., [617 A.2d at 768]. Likewise here, if [a]ppellant’s 

state constitutional right to an appeal is to have any 

meaning and is to be vindicated, it can only be vindicated 

by granting him an appeal nunc pro tunc. Furthermore, it 

would be entirely unfair in the criminal context to permit 

[a]ppellant’s state constitutional right of an appeal to be 

extinguished solely on the basis of his counsel’s failure to 

timely file the appeal where [a]ppellant had requested an 

appeal to be filed. Commonwealth v. Ciotto, [] 555 

 

3 42 Pa.C.S. §§ 9541-46 (referred to below as the “PCRA”).
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A.2d 930, 931 n.1 ([Pa. Super.] 1989)(“dismissal of postverdict motions on the basis of a procedural default in a 

criminal case, like a similar dismissal of a criminal appeal, 

improperly places the entire burden of counsel’s errors on 

the powerless” criminal defendant.) . . .

Id., 679 A.2d at 764-65.4

Stock controls the outcome of this case. As in Stock, (1) the 

magisterial district justice herein found Appellant guilty of a summary 

offense and sentenced her to pay a fine; (2) Appellant hired counsel to 

appeal her summary conviction; but (3) counsel failed to appeal to the trial 

court within the thirty-day appeal period. Appellant cannot seek relief under 

the PCRA, because she is not serving a sentence of imprisonment or death 

and is not on parole or probation. Thus, as in Stock, the only way to 

vindicate Appellant’s constitutional right of appeal is to grant her leave to 

appeal her summary conviction nunc pro tunc. The trial court abused its 

discretion in denying such leave to Appellant.

Order reversed. Case remanded for further proceedings in accordance 

with this memorandum. Jurisdiction relinquished.

 

4 For the sake of completeness, we note that Stock is limited in application. 

See Commonwealth v. Hall, 771 A.2d 1232, 1235-36 (Pa. 2001) (where 

defendant was serving sentence of imprisonment at time counsel allegedly 

failed to file direct appeal, defendant’s sole remedy was through PCRA, not 

motion for leave to appeal nunc pro tunc; Stock is distinguishable because 

“the defendant [in Stock] was never eligible for relief under the PCRA” 

because he served sentence of imprisonment or was on parole or probation). 

Nevertheless, our Supreme Court continues to recognize that Stock controls 

when, as here, the defendant is “never eligible” for relief under the PCRA. 

Commonwealth v. Descardes, 136 A.3d 493, 502 (Pa. 2016). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/25/2017