J-S18007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

IBRAHIM ALY

                            Appellant                 No. 1505 EDA 2015


              Appeal from the Judgment of Sentence April 21, 2015
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0006077-2013


BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.

JUDGMENT ORDER BY PANELLA, J.                          FILED APRIL 06, 2017

        Appellant, Ibrahim Aly, appeals from the judgment of sentence

entered by the Honorable Diana Anhalt of the Philadelphia Court of Common

Pleas following a probation violation hearing. We quash.

        The relevant factual and procedural history is as follows. On

September 12, 2013, Appellant was convicted of theft1 and receiving stolen

property.2 Following his conviction, the trial court sentenced Appellant to a

period of time served to twenty-three months’ incarceration, with a

concurrent two year probationary period. Appellant was immediately

____________________________________________



    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3921(a).
2
    18 Pa.C.S.A. § 3925(a).
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paroled, and as a condition of his probation, was required to comply with

mental health treatment and drug testing.

     After refusing to comply with mental health treatment and testing

positive for marijuana, Appellant absconded from supervision on October 12,

2014. On January 28, 2015, Appellant was notified of alleged violations of

the conditions of his probation and an absconder warrant was subsequently

issued for his arrest. Appellant was eventually arrested on March 20, 2015.

     The trial court held a probation violation hearing on April 21, 2015.

Appellant was found guilty of violating the conditions of his probation, and

the trial court sentenced Appellant to serve his back time, granted him

immediate parole and re-imposed a concurrent two-year probationary

period.

     Thereafter, Appellant filed a timely pro se post-sentence motion

contesting the judgment of sentence. This appeal follows. However, because

we find that the order Appellant purports to appeal from was not a final

order, we cannot address Appellant’s appeal on the merits.

     “As a preliminary matter, we must first ascertain whether the

judgment of sentence is properly appealable, because the question of

appealabilty implicates the jurisdiction of this court.” Commonwealth v.

Borrero, 692 A.2d 158, 159 (Pa. Super. 1997). Further, despite the fact

that neither party addressed the issue of jurisdiction, we may raise the

question of jurisdiction sua sponte. See Roman v. McGuire Mem’l, 127

A.3d 26, 31 (Pa. Super. 2015), appeal denied, 134 A.3d 57 (Pa. 2016).

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        The Judicial Code provides that the Superior Court shall have
        exclusive appellate jurisdiction of all appeals from final orders of
        the courts of common pleas, except such classes of appeals as
        are within the exclusive jurisdiction of the Supreme Court or the
        Commonwealth Court. 42 Pa.C.S.A. § 742. In the context of
        criminal proceedings where, as here, the case has proceeded
        through the sentencing phase, the appeal lies from the entry of
        the final judgment of sentence. Commonwealth v. Alvarado,
        437 Pa. Super. 518, 520, 650 A.2d 475, 476 (1994). Pursuant to
        the Pennsylvania Rules of Criminal Procedure, the question of
        whether the judgment of sentence is final and appealable
        depends upon whether a defendant files the now optional post-
        sentencing motions.

               When post-sentencing motions are not filed, the judgment
        of sentence constitutes a final and appealable order for the
        purposes of appellate review and any appeal therefrom must be
        filed within thirty (30) days of the imposition of sentence.
        Pa.R.Crim.P., Rule 1410A(3),[3] 42 Pa.C.S.A. and comments
        thereto; Commonwealth v. Alvarado, 437 Pa. Super. at 520,
        650 A.2d at 476-477. If post-sentencing motions are timely
        filed, however, the judgment of sentence does not become final
        for purposes of appeal until the trial court disposes of the
        motion, or the motion is denied by operation of law. Id., at Rule
        1410A(2) and comments thereto; Commonwealth v.
        Chamberlain, 442 Pa. Super. 12, 16, 658 A.2d 395, 397,
        appeal quashed, 543 Pa. 6, 669 A.2d 877(1995). Moreover, the
        comments to Rule 1410 explicitly provide that “no direct appeal
        may be taken by a defendant while his or her post-sentence
        motion is pending.” Comments to Pa.R.Crim.P. Rule 1410, 42
        Pa.C.S.A.

Borrero, 692 A.2d at 159-160.

        Here, the certified record reflects that Appellant was sentenced on

April 21, 2015. He filed a post-sentence motion on April 30, 2015 and then a

notice of appeal on May 21, 2015, prior to the trial court issuing an order
____________________________________________


3
    Rule 1410 was renumbered Rule 720, effective March 1, 2000.



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disposing of the post-sentence motion or the denial of the order by operation

of law. See Pa.R.Crim.P. 720(3). If an appropriate order denying the post-

sentence motion had been noted on the docket, we could have regarded this

appeal as having been filed within thirty days of the day on which the post-

sentencing motions should have been denied by operation of law. Cf.

Pa.R.A.P. 905(a). However, because an appropriate order has not been

entered on the docket denying the post-sentencing motion as an operation

of law, the judgment of sentence has not yet been finalized. See Borreo,

692 A.2d at 159-160.

     Thus, we are without jurisdiction to entertain this appeal. See 42

Pa.C.S.A. § 742.

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2017




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