J-S14006-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TOBIAS WADE ALLEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 986 WDA 2022

Appeal from the Judgment of Sentence Entered July 11, 2022

In the Court of Common Pleas of Clarion County 

Criminal Division at No(s): CP-16-CR-0000348-2019

BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.: FILED: July 28, 2023

Tobias Wade Allen appeals the judgment of sentence entered following 

the revocation of his probation. He argues the trial court improperly held a 

probation-revocation hearing (“Gagnon II hearing”)1 and revoked his 

probation before it disposed of the new charges lodged against him while he 

was on probation. He also asserts the trial court violated his due process rights 

during the Gagnon II hearing. We are unable to reach the merits of either of 

these issues, however, as we are constrained to quash Allen’s appeal as 

untimely.

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* Retired Senior Judge assigned to the Superior Court.

1 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
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We focus on the procedural history of this case, as that is central to the 

resolution of this appeal. On September 22, 2021, Allen was sentenced to one 

year probation after pleading guilty to simple assault. The conditions of Allen’s 

probation required Allen to comply with all laws, and prohibited him from 

possessing a firearm, possessing or using controlled substances or alcohol, 

and engaging in behavior which presented a clear and present danger to 

himself or others. 

Less than one month after he was sentenced to probation, Allen was 

arrested for, among other offenses, attempted homicide, aggravated assault 

and persons prohibited from possessing a firearm at docket number CP-16-

CR-462-2021. He was subsequently detained for violating several conditions 

of his probation, and waived his right to a Gagnon I hearing on October 25, 

2021. Allen’s Gagnon II hearing was scheduled for November 18, 2021, but 

was continued several times for a variety of reasons. 

The Gagnon II hearing was ultimately held on July 11, 2022. Following 

the hearing, the trial court found that Allen had violated his probation by 

possessing a firearm and by engaging in behavior that endangered himself 

and others. The court therefore revoked Allen’s probation, and immediately 

resentenced him to one to two years in state prison. It entered its sentencing 

order that same day, July 11, 2022. 
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On July 21, 2022, Allen filed a timely post-sentence motion. The court 

denied the motion on July 27, 2022. However, Allen did not file a notice of 

appeal from his judgment of sentence until August 25, 2022. 

This Court issued a rule to show cause why the appeal should not be 

quashed as untimely, as post-sentence motions do not toll the 30-day appeal 

period for revocation-of-probation sentences, and Allen’s appeal was filed 

more than 30 days after sentencing. See Pa.R.Crim.P. 708(E) (providing that 

a motion to modify a sentence imposed after a revocation shall be filed within 

ten days of the date of sentencing and will not toll the 30-day appeal period). 

Counsel for Allen filed a response to the rule-to-show-cause order. In 

the response, counsel conceded Allen’s notice of appeal was facially untimely 

but argued this Court should not quash the appeal in the interests of justice. 

Primarily, counsel asserted he did not file the appeal in the instant case until 

August 25, 2022 because the issues raised in this appeal were related to the 

charges at docket number CR-462-2021. He noted that Allen pled guilty to 

charges at that docket on July 15, 2022, which was four days after his 

probation in the instant matter had been revoked, and was not sentenced on 

the charges at docket number CR-462-2021 until August 24, 2022. According 

to counsel, he waited to file the appeal in the instant matter until after Allen 

was sentenced in the other matter as “some of [the] issues [in the instant 

appeal] were not fully ripe until [Allen] was sentenced at CR-462-2021.” Letter 
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in Response to Show Cause Why Appeal Should Not be Quashed, 9/28/2022, 

at 1 (unpaginated). 

This Court discharged the rule-to-show-cause order and allowed the 

appeal to proceed. The discharge order, however, specifically advised counsel 

that the issue of timeliness may be revisited by the panel assigned to review 

the merits of the appeal and counsel “should be prepared to address in 

Appellant’s brief any concerns that panel may have regarding the issue.” 

Order, 1/10/2023 (single page). 

Counsel chose not to do so. However, we still must address the issue 

given that the timeliness of an appeal implicates our jurisdiction. See 

Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000) (stating 

that the question of the timeliness of an appeal is jurisdictional). We find 

Allen’s appeal is untimely under Rule 708 of the Rules of Criminal Procedure, 

and we therefore do not have jurisdiction to consider the merits of the appeal. 

Rule 708 governs hearings and dispositions related to the violation of 

probation, intermediate punishment or parole. It provides that at the time of 

sentencing, the court must advise the defendant on the record of the right to 

file a motion to modify sentence and to appeal. See Pa.R.Crim.P. 708 

(D)(3)(a). The trial court did that here. See N.T., 7/11/22, at 47. Rule 708(E) 

also specifically addresses motions to modify sentences: 

A motion to modify a sentence imposed after a revocation shall be 

filed within 10 days of the date of imposition. The filing of a motion 

to modify sentence will not toll the 30-day appeal period.
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Pa.R.Crim.P. 708(E). 

Despite the clarity of this second statement, the Comment to Rule 708 

provides even further clarification by stating:

Under this rule, the mere filing of a motion to modify sentence 

does not affect the running of the 30-day period for filing a timely 

notice of appeal. Any appeal must be filed within 30 days of the 

imposition of sentence unless the sentencing judge within 30 days 

of the imposition of sentence expressly grants reconsideration or 

vacates the sentence. See Commonwealth v. Coleman, 721 

A.2d 798, 799 fn.2 (Pa. Super. 1998).

Pa.R.Crim. P. 708 Cmt. 

Here, Allen’s probation was revoked on July 11, 2022, and he was

resentenced that same day. Even though Allen filed a timely post-sentence 

motion, Rule 708 makes abundantly clear that he still only had 30 days to file 

an appeal from the imposition of the sentence on July 11, 2022, or by August 

10, 2022. He did not file his notice of appeal, however, until August 25, 2022. 

His appeal is therefore untimely.

The Comment to Rule 708 does provide two exceptions to this deadline, 

specifically where the trial court expressly grants reconsideration or vacates 

the sentence. The trial court took neither of these actions here. And while 

Allen argued in his response to the rule-to-show-cause order that we should 

allow his untimely appeal to proceed based on the interests of justice, that is 

not one of the exceptions listed by the Comment or specified as an exception 

in the Rule itself. Compare, e.g., Pa.R.Crim.P. 106, 500, 564, 578, 587 

(providing for the taking of actions or the allowance of noncompliance when 
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warranted by “the interests of justice”). In any event, we note that Allen 

abandoned this argument on appeal. He did not renew this - or for that matter 

any - argument regarding the timeliness of his appeal in his appellate brief 

despite this Court’s instruction in its order discharging the rule-to-show-cause 

advising him to do so.2

Based on the clear dictates of Rule 708, Allen’s notice of appeal was 

untimely and we therefore are constrained to quash the appeal. 

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2023

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2 We also note that this Court declined to quash an untimely appeal from a 

revocation-of-probation sentence in Commonwealth v. Parlante, 823 A.2d 

927, 929 (Pa.Super. 2003), because the trial court in that case misinformed 

Parlante that she had 30 days to appeal her sentence after the denial of any 

post-sentence motion she filed. Here, unlike in Parlante, the trial court did 

not misadvise Allen that he could file a notice of appeal more than 30 days 

after the imposition of his revocation-of-probation sentence.