J-S68024-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :                 IN THE SUPERIOR COURT OF
                             :                       PENNSYLVANIA
                             :
         v.                  :
                             :
THOMAS MARTIN BALDWIN        :
                             :
              Appellant      :                No. 1975 MDA 2016


            Appeal from the Judgment of Sentence July 19, 2016
  In the Court of Common Pleas of Cumberland County Criminal Division at
                      No(s): CP-21-CR-0000752-2015

BEFORE: LAZARUS, DUBOW and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 01, 2018

      I respectfully dissent.   The record clearly shows that the trial court

granted newly appointed counsel’s request for an extension to file a post-

sentence motion following receipt of the requested trial transcripts. Order of

Court, 7/21/2016 (“Defense counsel shall have 30 days from the date of

receipt of the transcript within which to file any post-sentence motions.”). The

trial court had jurisdiction to grant that request as it was granted via an order

filed two days after Appellant was sentenced.        See Commonwealth v.

Moore, 978 A.2d 988, 991 (Pa. Super. 2009) (holding that trial court had

authority to grant July 31, 2008 motion for extension of time to file post-

sentence motion following Moore’s judgment of sentence on July 23, 2008,

and that “the trial court erred when it averred that it lacked jurisdiction to

permit [Moore] to file his post-sentence motion nunc pro tunc.”).



*Retired Senior Judge assigned to the Superior Court.
J-S68024-17

      The Majority’s analysis elevates form over substance. Although I agree

with the Majority that the trial court did not use the magic words “nunc pro

tunc” in that July 21, 2016 order, I find that nonetheless the trial court did

expressly grant Appellant the right to file a post-sentence motion nunc pro

tunc. See Commonwealth v. Batty, 169 A.3d 70, 72 n.4 (Pa. Super. 2017)

(holding that trial court properly permitted Batty to file a post-sentence

motion nunc pro tunc where “[o]n November 1, [] counsel filed on behalf of

[Batty] a motion to permit counsel to file a post-sentence motion nunc pro

tunc due to counsel’s recent appointment, and on November 3, [] the lower

court granted the petition, expressly giving [Batty] until November 23, [] to

file his post-sentence motion.”). Moreover, when ordering the post-sentence

motion hearing, the trial court here referred to the motion as a “nunc pro tunc

motion.” Order of Court, 9/26/2016.

      The Majority attempts to alter the plain meaning of the July 21, 2016

order with a statement from the post-sentence motion hearing that the trial

court implicitly granted, at the time of sentencing, an extension of 30 days

from the date of sentencing to file a post-sentence motion.          Majority’s

Memorandum at 2-3 (quoting N.T. 11/22/2016, at 2-12).            However, this

statement contradicts the explicit language of the July 21, 2016 order,

wherein the trial court granted counsel’s request to file a post-sentence motion

within “30 days from the date of receipt of the transcript[.]” Order of

Court, 7/21/2016 (emphasis added).


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J-S68024-17

      Based on the foregoing, I find that the trial court granted Appellant’s

request to file a post-sentence motion nunc pro tunc, Appellant complied with

that order in filing his post-sentence motion,1 and his appeal from the denial

of that motion is timely. Accordingly, I would not quash.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/1/18




1 It is unclear when counsel received the requested transcript. However, even
if counsel received it on July 21, 2016, the date that counsel was appointed
to represent Appellant, the post-sentence motion filed on August 19, 2016
was filed within 30 days from that date.
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