J-S60036-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                   Appellee                :
                                           :
                    v.                     :
                                           :
DAVID PILAWSKI,                            :
                                           :
                   Appellant               :    No. 3606 EDA 2015

         Appeal from the Judgment of Sentence November 2, 2015,
              in the Court of Common Pleas of Bucks County,
           Criminal Division, at No(s): CP-09-CR-0000276-2012
                         CP-09-CR-0001181-2014
                         CP-09-CR-0004986-2013

BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED OCTOBER 19, 2016

      David Pilawski (Appellant) appeals from the judgment of sentence

imposed on November 2, 2015, following revocation of his parole at CP-09-

CR-0000276-2012 (276-2012) and CP-09-CR-0001181-2014 (1181-2014),

and the revocation of his probation at CP-09-CR-0004986-2013 (4986-

2013). We quash this appeal and remand for further proceedings.

      The revocation court aptly set forth the relevant factual and procedural

history of this matter as follows.

      [276-2012]

             On March 9, 2012, [Appellant] pled guilty [at 276-2012] to
      retail theft and receiving stolen property after his arrest on
      November 11, 2011 for stealing baby formula from the


* Retired Senior Judge assigned to the Superior Court.
J-S60036-16


     Genuardi’s Supermarket in Middletown Township, Bucks County,
     Pennsylvania. He was sentenced to 18 months of probation, to
     be served consecutively to a prior sentence of probation he had
     received.

           On September 10, 2012, [Appellant] was found to have
     violated his probation, which was thereafter revoked. He was
     resentenced to another 18 months of probation, to be again
     served consecutively to a prior sentence of probation he had
     received under Bill No. 3489 of 2011.

          On October 30, 2013, pursuant to a stipulated violation of
     probation, [Appellant’s] probation previously granted on
     September 10, 2012 was revoked, and he was resentenced to
     one year of probation. This probation was again to be served
     consecutively to the previous sentence he received under Bill No.
     3489 of 2011.

           On May 15, 2014, [Appellant] was again found to have
     violated his probation, which was again revoked, and he was
     sentenced to undergo incarceration in the Bucks County
     Correctional facility (“BCCF”) for not less than 1 year minus one
     day nor more than 2 years minus one day.

            On November 2, 2015, pursuant to an agreement
     [Appellant] entered into with the Commonwealth prior to the
     bench warrant proceeding, [Appellant] was found to be in
     violation of his parole granted under the sentence issued on May
     15, 2014, and he was sentenced to serve his backtime of 9
     months 13 days, concurrent to the sentences he was serving
     under Bill Nos. 4986 of 2013 and 1181 of 2014.

     [4986-2013]

            On October 3, 2013, [Appellant] pled guilty to retail theft,
     after he and an accomplice were arrested on June 28, 2013 for
     stealing Similac baby formula from the Toys R Us store in
     Langhorne, Bucks County. [Appellant] received a sentence of
     two (2) years of probation for that conviction.

           On May 15, 2015, [Appellant] was found to be in violation
     of that probation. His probation was revoked, and he was
     resentenced to four (4) years of probation, to be served


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     concurrently with his sentences of probation under Bill Nos.
     [276-2012] and 1181 of 2011.

            On November 2, 2015, pursuant to another agreement
     [Appellant] entered into with the Commonwealth prior to the
     bench warrant proceeding, [Appellant] was found to be in
     violation of that probation, which was thereafter revoked, and he
     was resentenced to undergo incarceration in a state correctional
     institution in a therapeutic community for not less than two (2)
     nor more than four (4) years.

     [1181 -2014]

           On May 2, 2014, [Appellant] pled guilty to simple assault
     and harassment after his arrest for assaulting another inmate in
     a holding cell at the BCCF on January 7, 2014. On May 15, 2014,
     [Appellant] was sentenced to undergo imprisonment at the BCCF
     for not less than 1 year minus one day nor more than 2 years
     minus one day. On August 1, 2015, he was granted parole from
     that sentence.

            On November 2, 2015, pursuant to a third agreement
     [Appellant] entered into with the Commonwealth prior to the
     bench warrant proceeding, this court found [Appellant] in
     violation of his parole, which was thereafter revoked, and he was
     sentenced to serve the remaining backtime of nine (9) months
     and thirteen (13) days.

           On November 10, 2015, the Bucks County Public
     Defender’s Office filed on behalf of [Appellant] a Motion
     for Appointment of Private Counsel and a Motion to
     Withdraw Admission of Violation of Parole and/or
     Probation and for Reconsideration of Sentence. In the
     latter motion, [Appellant] “asked to withdraw his
     admission that he was in violation of his probation and
     parole and asked for reconsideration of his sentences
     because he claims he did not knowingly, intelligently, and
     voluntarily waive his rights, did not fully understand the
     proceeding, and did not have counsel.” Motion, 11/10/15.

          On November 19, 2015, an order was issued by the
     Honorable Wallace H. Bateman, Jr., granting the motion for
     appointment of private counsel.


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           On December 1, 2015, an order was issued which
      scheduled a hearing on [Appellant’s] motions for
      December 15, 2015.

           On December 2, 2015, [Appellant’s] court-appointed
      private counsel filed a notice of appeal from the judgment
      of sentences issued on November 2, 2015, and the
      hearing scheduled for December 15, 2015 was cancelled.

Revocation Court Opinion, 3/31/2016, at 1-3 (emphasis added, footnotes

and unnecessary capitalization omitted).

      Both Appellant and the trial court complied with the mandates of

Pa.R.A.P. 1925.    On appeal, Appellant raises two issues for our review.

      1. Did the [revocation court] err in finding that [Appellant’s]
      waiver of his right to revocation hearings and/or his admission to
      the violations alleged in support of the request to violate his
      probation and parole was knowingly, intelligently and voluntarily
      made?

      2. Did the [revocation court] err in finding that [Appellant’s]
      waiver of his right to revocation hearings before the judge who
      received [Appellant’s] pleas of guilty at the time of the initial
      disposition of the underlying cases and his right to have
      sentence imposed after such revocation by the judge who
      received [Appellant’s] pleas of guilty was knowingly, intelligently
      and voluntarily made?

Appellant’s Brief at 3.

      Before we may address Appellant’s substantive issues, we must first

determine whether we have jurisdiction over this appeal. Neither party has

raised this issue; however, it is well-settled that this Court may raise the

issue of our jurisdiction sua sponte. See e.g., Commonwealth v.

Morganthaler, 466 A.2d 1091, 1092 (Pa. Super. 1983).



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      As a general rule, this Court has jurisdiction over only final orders.

Commonwealth v. Rojas, 874 A.2d 638 (Pa. Super. 2005). In criminal

cases, a direct appeal lies from the judgment of sentence. Commonwealth

v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007). Where a defendant

timely files a post-sentence motion, the lower court shall decide the motion

within 120 days of the filing; otherwise, the motion shall be deemed denied

by operation of law. Pa.R.Crim.P. 720(B)(3)(a). However, where, as here, an

appellant files a notice of appeal before the lower court has ruled on his

post-sentence motion, the judgment of sentence has not become “final,” and

any   purported    appeal    will   be    interlocutory   and   unreviewable.

Commonwealth v. Borrero, 692 A.2d 158 (Pa. Super. 1997) (evaluating

the appealability of a judgment of sentence where notice of appeal was filed

before appellant’s timely post-sentence motions were affirmatively ruled on

or denied by operation of law).

      Instantly, Appellant’s post-sentence motion was filed on November 10,

2015. The revocation court never ruled on this motion. New counsel filed a

notice of appeal on December 2, 2015, well before the expiration of the 120-

day period and while Appellant’s motion was pending. The revocation court

cancelled the scheduled post-sentence motion hearing without ruling on the

motion. Further, the clerk of courts has not entered on the docket an order

denying the post-sentence motion by operation of law. Under such

circumstances, we conclude that the instant notice of appeal is premature.


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Accordingly, we quash this appeal and remand for the revocation court to

consider the post-sentence motion nunc pro tunc. Borrero, 692 A.2d at

161.

       Appeal quashed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/19/2016




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