J-S37006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

JERMAINE HENDERSON,

                          Appellant                  No. 2432 EDA 2013


           Appeal from the Judgment of Sentence June 18, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0012686-2011,
                         CP-51-CR-0012688-2011


BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

DISSENTING MEMORANDUM BY SHOGAN, J.:                   FILED JULY 24, 2015

      Although procedural irregularities attend his case, I do not believe

Appellant’s appeal was untimely. Accordingly, I would consider the merits of

this appeal.

      “Jurisdiction is vested in the Superior Court upon the filing of a timely

notice of appeal.”    Commonwealth v. Green, 862 A.2d 613, 615 (Pa.

Super. 2004) (en banc) (citation omitted).     “A direct appeal in a criminal

proceeding lies from the judgment of sentence.”          Commonwealth v.

Preacher, 827 A.2d 1235, 1236 n.1 (Pa. Super. 2003). “The time for filing

an appeal can be extended beyond [thirty] days after the imposition of

sentence only if the defendant files a timely post-sentence motion.” Green,

862 A.2d at 618.      Pursuant to Pa.R.Crim.P. 720(A)(1), a post-sentence
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motion must be filed no later than ten days after the imposition of sentence.

An untimely post-sentence motion does not toll the thirty-day appeal period.

Green, 862 A.2d at 618.

      The trial court sentenced Appellant on June 18, 2013. Appellant did

not raise any challenges at sentencing.      N.T., 6/18/13, at 51–60.      After

sentence was imposed, Appellant was informed of his post-sentence rights

and appellate rights. N.T., 6/18/13, at 59–60. Appellant had until June 28,

2013, to file a timely post-sentence motion and until July 18, 2013, to file an

appeal. Pa.R.Crim.P. 720(A)(1); Pa.R.A.P. 903(a).

      On July 8, 2013, twenty days after entry of the judgment of sentence,

Appellant filed a petition for leave to file a post-sentence motion out of time.

In his petition, Appellant asserted that counsel was filing a post-sentence

motion concurrently with the petition.     Petition, 7/8/13, at ¶ 4. However,

the certified record does not contain a post-sentence motion, a fact noted by

the Majority. Majority Memorandum at n.2. Nonetheless, on July 17, 2013,

which was still within the thirty-day appeal period, the trial court stated that

it considered a post-sentence motion and entered an order denying relief.

See ORDER-Post Sentence Motion, 7/17/13. Appellant filed a timely appeal

on July 18, 2013.

      Although the trial court did not expressly issue an order permitting the

filing of a post-sentence motion nunc pro tunc, it did state that it considered

a motion and then denied relief within the original thirty-day appeal period.


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In my opinion, the trial court’s action of denying relief within the original

thirty-day period distinguishes this case from Commonwealth v. Capaldi,

112 A.3d 1242 (Pa. Super. 2015), wherein the hearing and subsequent

denial of the post-sentence motion occurred after the thirty-day appeal

period. Accordingly, I would consider the merits of this appeal.




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