J-S35037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FRANCIS GALLO,

Appellant No. 62 EDA 2015

Appeal from the Judgment of Sentence October 8, 2014

in the Court of Common Pleas of Delaware County

Criminal Division at No.: CP-23-CR-0001793-2014

BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JUNE 02, 2015

Appellant, Francis Gallo, appeals from the judgment of sentence 

imposed after the revocation of his probation.1 Appellant’s counsel seeks to 

withdraw from representation pursuant to Anders v. California, 386 U.S. 

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). 

We quash and deny counsel’s application to withdraw as moot.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Appellant purports to appeal from the court’s denial of his post-sentence 

motion. (See Notice of Appeal, 12/31/14, at 1). However, an appeal 

properly lies from the judgment of sentence. See Commonwealth v. 

Rojas, 874 A.2d 638, 642 (Pa. Super. 2005). We have amended the 

caption accordingly.
J-S35037-15

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On March 28, 2014, Appellant entered a negotiated guilty plea to one 

count of possession of marijuana.2 While serving his twenty-four month 

probationary sentence, (see Guideline Sentence Form, 4/11/14, at 1), 

Appellant failed to report, and tested positive for morphine and oxycodone. 

(See Request for Bench Warrant, 6/13/14, at 1). At his October 8, 2014 

Gagnon II3 hearing, he stipulated to the probation violation. (See N.T. 

Gagnon II Hearing, 10/08/14, at 3). The same day, the court adopted 

Adult Probation’s recommendation and imposed a sentence of not less than 

nine nor more than twenty-three months’ incarceration, plus drug and 

alcohol evaluation, and community service. (See id. at 4, 9; see also

Judgment of Sentence, 10/08/14, at 1). On December 9, 2014, the court 

denied Appellant’s nunc pro tunc post-sentence motion. Appellant filed a 

notice of appeal on December 31, 2014. On March 12, 2015, counsel filed 

an application to withdraw and an Anders brief on the basis that the appeal 

is frivolous.4

Preliminarily, we must address this appeal’s timeliness. As this Court 

recently stated:

Rule 720 of the Pennsylvania Rules of Criminal Procedure in 

general governs the timing of post-sentence motion procedures 

____________________________________________

2 35 P.S. § 780-113(a)(16).

3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

4 Appellant did not respond to counsel’s application to withdraw.
J-S35037-15

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and appeals. See Pa.R.Crim.P. 720. The disposition of a motion 

to modify a sentence imposed after a revocation hearing, 

however, is governed by Rule 708 (Violation of Probation, 

Intermediate Punishment, or Parole: Hearing and Disposition). 

See Pa.R.Crim.P. 720 Comment. Rule 708(E) states: “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.” Pa.R.Crim.P. 708(E) (emphasis added). Rule 708 

makes clear Rule 720 does not apply to revocation cases. Id.

Comment. See also Commonwealth v. Parlante, 823 A.2d 

927, 929 (Pa. Super. 2003) (internal citation omitted) (stating: 

“An appellant whose revocation of probation sentence has been 

imposed after a revocation proceeding has 30 days to appeal her 

sentence from the day her sentence is [imposed], regardless of 

whether . . . she files a post-sentence motion. Therefore, if an 

appellant chooses to file a motion to modify her revocation 

sentence, she does not receive an additional 30 days to file an 

appeal from the date her motion is denied”).

Time limitations for taking appeals are strictly construed 

and cannot be extended as a matter of grace. This Court can 

raise the matter sua sponte, as the issue is one of jurisdiction to 

entertain the appeal. Absent extraordinary circumstances, this 

Court has no jurisdiction to entertain an untimely appeal.

Commonwealth v. Burks, 102 A.3d 497, 499 (Pa. Super. 2014) (some 

case citations omitted).

Here, the court revoked Appellant’s probation and resentenced him on 

October 8, 2014. Although Appellant filed a post-sentence motion nunc pro 

tunc on November 5, 2014, this did not toll the thirty-day appeal period. 

See id. Therefore, Appellant had until November 7, 2014 to file an appeal, 
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regardless of the post-sentence motion.5 However, he did not file his notice 

of appeal until December 31, 2014.

Therefore, Appellant's failure to file his notice of appeal within thirty 

days of the sentence imposed after the probation revocation divested this 

Court of appellate jurisdiction. See id. Accordingly, we quash this appeal 

as untimely.

Appeal quashed. Counsel’s application to withdraw denied as moot.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/2/2015

____________________________________________

5 Counsel advised Appellant at sentencing that he had thirty days from the 

date of sentencing to file a notice of appeal. (See N.T. Hearing, 10/08/14, 

at 9).