J-S65025-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANTHONY MICHAEL FLOWERS,

Appellant No. 165 WDA 2016

Appeal from the Judgment of Sentence of December 22, 2015

In the Court of Common Pleas of Westmoreland County

Criminal Division at No(s): CP-65-CR-0002589-2012

BEFORE: LAZARUS, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 02, 2016

Appellant, Anthony Michael Flowers, appeals from the judgment of 

sentence entered on December 22, 2015. We are constrained to quash this 

appeal. 

The trial court has ably explained the underlying facts and procedural 

posture of this appeal:

On November 21, 2013, [Appellant] entered a general guilty 

plea . . . to the following counts: 1) criminal attempt – rape 

forcible compulsion, in violation of 18 Pa.C.S.A. § 901(a); 2) 

unlawful restraint/serious bodily injury, in violation of 18 

Pa.C.S.A. § 2902(a)(1); 3) simple assault, in violation of 18 

Pa.C.S.A. § 2701(a)(1); and[,] 4) simple assault, in 

violation of 18 Pa.C.S.A. § 2701(a)(3).

[Appellant] was sentenced on February 18, 2014. At count 

one [(criminal attempt at rape)], he was sentenced to two 

[years’] intermediate punishment with two [years’] home 

electronic monitoring. Further, [Appellant] was found to be 

a Tier III violator of Megan’s Law and was ordered to 

participate in sex offender’s treatment. At count two, 
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[Appellant] was sentenced to serve two [years’] probation 

consecutive to count one. At counts three and four, no 

further penalty was ordered.

On April 29, 2014, [Appellant] was discharged from sex 

offender’s treatment because “his mental health and low IQ 

prohibit [him] from learning abstract concepts.” [N.T. 

Detainer Hearing, 6/24/14, at 9]. [On June 10, 2014, the 

trial court issued an “order for warrant of arrest and to 

detain” because: “on [April 29 2014, Appellant] was 

unsuccessfully discharged from [the] sex offender program” 

and “on [May 16, 2014, Appellant] had a violent episode 

while on EHM that resulted in a 302 commitment[, 

Appellant] was not taking his prescribed meds.” Detainer 

Warrant, 6/10/14, at 1]. . . . 

A revocation hearing was [held] on June 24, 2014. . . . At 

the conclusion of the hearing, [the trial court] vacated the 

requirement that [Appellant] attend sex offender’s 

treatment and continued the detainer hearing so that 

[Appellant’s] counsel could attempt to find an appropriate 

treatment placement for [Appellant].

On November 13, 2015, an intermediate punishment 

revocation hearing was held before th[e trial] court. Nancy 

Packe of Westmoreland Case Management testified that, 

despite extensive efforts, she was unable to locate a 

residential placement for [Appellant] either due to the 

charges for which he was convicted or the lack of 

state/county funding for such a placement. Ms. Packe 

further testified that [Appellant’s] mother was fearful of 

having [Appellant] return to her home. Th[e trial] court 

found [Appellant] in violation of the terms and conditions of 

[his] intermediate punishment and probation. [The trial 

court then resentenced Appellant to two-and-a-half to five 

years in prison at count one, and to serve a consecutive 

term of two years’ probation at count two. Appellant] was 

also ordered to participate in sex offender’s treatment and 

be evaluated for high intensity mental health treatment 

while in state prison.

On November 23, 2015, [Appellant] filed a motion to modify 

sentence[,] arguing that the sentence requiring [him] to 

complete sex offender’s treatment violated the [Eighth] 
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Amendment in that it imposed a condition that [Appellant] 

was not capable of satisfying. . . .

On November 25, 2015, [the trial court] granted 

[Appellant’s] motion to modify and vacated the November 

13, 2015 sentence.

On December 22, 2015, [Appellant] appeared before th[e 

trial] court for [resentencing]. After argument and hearing, 

[Appellant was resentenced to serve a term of two-and-ahalf to five years in prison at count one, and to serve a 

consecutive term of two years’ probation at count two. 

Further, at the conclusion of the sentencing hearing, the 

trial court informed Appellant: 

You [] have a right of a direct appeal to the Superior 

Court. If you wish to appeal the sentence that I’ve 

imposed upon you today, you have 30 days from today’s 

date to file a direct appeal to the Superior Court of 

Pennsylvania. And if you have any further questions, 

your attorney can explain that to you.

N.T. Resentencing Hearing, 12/22/15, at 10]. . . .

On December 31, 2015, [Appellant] filed a motion to 

reconsider and modify sentence, which [the trial court 

denied] on January 5, 2016.

Trial Court Opinion, 3/24/16, at 1-3 (some internal capitalization and 

formatting omitted).

On Friday, January 22, 2016 – or, 31 days after the trial court 

resentenced Appellant following the revocation of his intermediate 

punishment sentence – Appellant filed a notice of appeal to this Court. We 

must now quash this appeal.

Before we are able to consider the merits of Appellant’s claims, we 

must first determine whether the appeal is timely. Indeed, even though 

neither party has claimed that the appeal is untimely, “we are required to 
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consider the [timeliness of this appeal] sua sponte because the issue 

[implicates] our subject matter jurisdiction.” Commonwealth v. Cooper, 

710 A.2d 76, 78 (Pa. Super. 1998).

Pennsylvania Rule of Criminal Procedure 708 establishes the required 

procedure for revocation of probation, intermediate punishment, or parole 

proceedings. With respect to post-sentence proceedings in revocation cases, 

Rule 708 declares:

(E) Motion to Modify Sentence

A motion to modify a sentence imposed after a revocation 

shall be filed within 10 days of the date of imposition. The 

filing of a motion to modify sentence will not toll the 

30-day appeal period.

Pa.R.Crim.P. 708(E) (emphasis added).

Thus, pursuant to the plain terms of the above rule, “the mere filing of 

a motion to modify sentence does not affect the running of the 30-day 

period for filing a timely notice of appeal. Any appeal must be filed within 

the 30-day appeal period unless the sentencing judge within 30 days of the 

imposition of sentence expressly grants reconsideration or vacates the 

sentence.” Pa.R.Crim.P. 708 cmt. 

In the case at bar, the trial court revoked Appellant’s intermediate 

punishment and, on December 22, 2015, the trial court resentenced 

Appellant to serve a term of two-and-a-half to five years in prison, followed 

by a term of two years of probation. Appellant then filed a timely motion to 

modify his sentence. Yet, since the trial court denied Appellant’s motion to 
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modify, Appellant’s motion did not toll the 30-day appeal period. 

Pa.R.Crim.P. 708(E). As such, Appellant was required to file his notice of 

appeal on or before January 21, 2016. Appellant did not file his notice of 

appeal until January 22, 2016. Therefore, the current appeal is untimely. 

We do not have subject matter jurisdiction over this appeal.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/2/2016