Com. v. Stokes, J.

• Court: Superior Court of Pennsylvania
• Decided: September 7, 2016
• Docket: 33 EDA 2016
• Status: Unpublished

Opinion

J-S64039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOSHUA J. STOKES

Appellant No. 33 EDA 2016

Appeal from the Judgment of Sentence December 11, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000720-2011

BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 07, 2016

Appellant appeals from the judgment of sentence entered in the Court

of Common Pleas of Philadelphia County following his conviction by a jury on

the crimes of first-degree murder and possession of an instrument of crime.1

After a careful review, we quash this appeal and remand for further

proceedings.

Appellant, who was represented by court-appointed counsel,

proceeded to a jury trial on various charges, including homicide, in

connection with the stabbing death of the victim. On December 11, 2015,

the jury convicted Appellant of the offenses indicated supra, and on that

same day, the trial court sentenced Appellant to life in prison. ____________________________________________

1 18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.

*Former Justice specially assigned to the Superior Court. J-S64039-16

On or about December 17, 2015, Appellant filed a timely pro se post-

sentence motion,2 see Pa.R.Crim.P. 720(A)(1) (indicating a post-sentence

motion must be filed within ten days of the judgment of sentence), and on

December 28, 2015, newly court-appointed counsel filed a notice of appeal.3

As a general rule, this Court has jurisdiction only over 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). Generally, where a

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

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

denied by operation of law. See Pa.R.Crim.P. 720(B)(3)(a). When an

appellant files a notice of appeal before the 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 ____________________________________________

2 There is no indication that Appellant served his pro se post-sentence motion upon his court-appointed attorney. Moreover, there is no indication that the clerk of courts complied with Pa.R.Crim.P. 576(A)(4), which requires a copy of a pro se filing, made by a counseled defendant, to be forwarded to the counsel of record. 3 On or about December 28, 2015, Appellant filed a separate pro se document, which purported to be a notice of appeal; however, the clerk of courts did not identify the filing as a pro se notice of appeal. Rather, the clerk of courts listed Appellant’s pro se appeal on the certified docket sheet as a “Receipt of Filing from Represented Defendant Not signed by Attorney[.]” In any event, to the extent Appellant’s pro se document constitutes a pro se notice of appeal, for the reasons discussed infra, it is premature.

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v. Borrero, 692 A.2d 158, 160 (Pa.Super. 1997). In those circumstances,

the proper remedy is to quash the appeal, relinquish jurisdiction, and

remand for the trial court to consider the post-sentence motion nunc pro

tunc.4 Id. at 161.

Instantly, Appellant’s notice of appeal was filed well before the

expiration of the 120-day period and while Appellant’s timely post-sentence

motion was still pending. Further, the trial court has not issued an order

disposing of the post-sentence motion nor has the clerk of courts entered an

order denying the post-sentence motion by operation of law. Thus, absent

an order disposing of the post-sentence motion, or any indication the post-

sentence motion has been withdrawn, we conclude the instant notice of

appeal is premature. Id. (explaining that the judgment of sentence does not

become final until the entry of an order disposing of timely post-sentence

motions, even if the 120–day period for deciding post-sentence motions has

expired). Accordingly, we quash this appeal and remand for the trial court

to forward the pro se post-sentence motion to counsel, allow counsel the

opportunity to amend the post-sentence motion, and rule on the post-

sentence motion.

____________________________________________

4 In such circumstances, the post-sentence motion is deemed filed nunc pro tunc on the date on which the certified record is remanded to the trial court, and thus, the 120-day period for disposing of the post-sentence motion begins to run anew as of that date.

-3- J-S64039-16

Appeal Quashed; Case remanded for further proceedings; Jurisdiction

is relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/7/2016

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