J-S67020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TYLER T. HEAGY

Appellant No. 667 MDA 2015

Appeal from the Judgment of Sentence October 7, 2014

In the Court of Common Pleas of Lebanon County

Criminal Division at No(s): CP-38-CR-0000680-2014

BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J. FILED JANUARY 15, 2016

Appellant, Tyler T. Heagy, appeals from the judgment of sentence 

entered October 7, 2014, in the Court of Common Pleas of Lebanon County. 

After careful review, we quash.

On October 7, 2014, Appellant entered a guilty plea to criminal 

trespass, two counts of simple assault, reckless endangerment, criminal 

mischief, and two summary counts of harassment.1Immediately thereafter, 

the trial court sentenced Appellant to an aggregate term of time served to 

23 months’ imprisonment. Appellant’s trial counsel did not file a postsentence motion within ten days of the entry of the judgment of sentence. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3503(a)(1)(ii); 2701(a)(1); 2705; 3304(a)(2); and 

2709(a)(1), respectively. 
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However, on October 20, 2014, Appellant, who was incarcerated, filed a pro 

se post-sentence motion seeking to withdraw his guilty plea. Over the 

following months, Appellant filed several pro se petitions, including a petition 

seeking the appointment of new counsel for litigating his post-sentence 

motion, which the trial court granted on January 22, 2015. Newly appointed 

counsel thereafter filed a Memorandum Supporting Defendant’s PostSentence Motion on February 27, 2015. The trial court denied Appellant’s 

post-sentence motion on March 16, 2015, and Appellant filed the instant 

appeal on April 14, 2015. 

Prior to reaching the merits of Appellant’s arguments, we must first 

determine whether this Court has jurisdiction to hear this appeal. A notice of 

appeal must be filed within 30 days of the entry of the order being appealed. 

See Pa.R.A.P. 903(a); Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. 

Super. 2000). This Court may not extend the time for filing a notice of 

appeal. See Pa.R.A.P. 105(b). 

Rule 720 of the Pennsylvania Rules of Criminal Procedure provides that 

a party may file post-sentence motions no later than 10 days after 

imposition of sentence. A timely motion tolls the appeal period; an untimely 

motion does not. See Commonwealth v. Dreves, 839 A.2d 1122 (Pa. 

Super. 2003) (en banc); Commonwealth v. Felmlee, 828 A.2d 1105 (Pa. 

Super. 2003) (en banc). This Court has long recognized that the 30-day 

appeal period must be strictly construed, as it is jurisdictional in nature. 

See Moir, 766 A.2d at 1254. Therefore, “where the defendant does not file 
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a timely post-sentence motion, there is no basis to permit the filing of an 

appeal beyond 30 days after the imposition of sentence.” Commonwealth 

v. Green, 862 A.2d 613, 618 (Pa. Super. 2004) (en banc). 

Here, Appellant’s judgment of sentence was entered on October 7, 

2014. Therefore, the due date for the filing of a post-sentence motion with 

the clerk of courts was October 17, 2014. See 1 Pa.C.S.A. § 1908; 

Pa.R.Crim.P. 720(A)(1). Appellant’s motion was not filed with the clerk of 

courts until October 20, 2014. Thus, on its face, Appellant’s post-sentence 

motion did not toll the 30-day appeal period. See Pa.R.Crim.P. 720(A)(3) 

(“If the defendant does not file a timely post-sentence motion, the 

defendant’s notice of appeal shall be filed within 30 days of imposition of 

sentence....”).

Appellant asserts, and the trial court agreed, that his post-sentence 

motion was timely filed pursuant to the prisoner mailbox rule. See Response 

to Motion to Show Cause, 5/26/15; Trial Court Opinion, 3/16/15 at 4-5. We 

disagree. 

Under the prisoner mailbox rule, timeliness of a filing from an 

incarcerated pro se party is measured from the date the prisoner places the 

filing in the institution’s mailbox. See Smith v. Pa. Bd. Of Prob. and 

Parole, 683 A.2d 278, 281 (Pa. 1996). This rule applies to “all appeals from 

pro se prisoners[.]” Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 

1997) (citation omitted). 
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Our review of the record reveals that Elizabeth Judd, Esquire, 

represented Appellant at trial. At the time Appellant filed his pro se postsentence motion, counsel had not sought to withdraw her appearance, and 

was thus still representing Appellant. Although Appellant filed a pro se postsentence motion, our courts have made clear that a defendant who is 

represented by counsel may not engage in hybrid representation by filing 

pro se documents. See, e.g., Commonwealth v. Ali, 10 A.3d 282, 293 

(Pa. 2010) (where appellant was represented by counsel on appeal, his pro 

se Rule 1925(b) statement was a “legal nullity”); Commonwealth v. Ellis, 

626 A.2d 1137, 1139, 1141 (Pa. 1993) (“[T]here is no constitutional right to 

hybrid representation either at trial or on appeal. ... A [defendant] may not 

confuse and overburden the court by his own pro se filings of briefs at the 

same time his counsel is filing briefs on his behalf.”). Thus, the imperative 

was on Appellant’s counsel to file a timely post-sentence motion, and 

because Appellant was still represented by counsel at the time he filed his 

pro se post-sentence motion, that pro se filing constituted a legal nullity. 

Although Appellant later requested and was appointed new counsel for 

the purpose of litigating his post-sentence motion, the Memorandum of Law 

Supporting Defendant’s Post-Sentence Motion filed February 27, 2015, did 

not excuse or rectify the untimely filing of Appellant’s post-sentence 
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motion.2 The notice of appeal filed by Appellant’s new counsel was likewise 

untimely as it was filed over six months after the imposition of the judgment 

of sentence, well in excess of the 30-day requirement.

Although the trial court in this case ruled on the merits of the untimely 

post-sentence motion following the appointment of new counsel, see 

Opinion and Order, 3/16/15, the trial court’s order “is no substitute for an 

order expressly granting nunc pro tunc relief.” Dreves, 839 A.2d at 1129.

Based on the foregoing, Appellant has failed to preserve his right to 

appellate review by filing a timely post-sentence motion and/or a timely 

notice of appeal. We therefore quash the appeal. Our quashal is without 

prejudice to Appellant to seek post-conviction relief.

Appeal quashed. 

Judge Bowes joins the memorandum.

Judge Platt concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/15/2016

____________________________________________

2 Appellant’s new counsel did not request permission from the trial court to 

file a post-sentence motion nunc pro tunc. See Dreves, 839 A.2d at 1128 

(“If the trial court does not expressly grant nunc pro tunc relief, the time for 

filing an appeal is neither tolled nor extended.”).