J-S64041-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JACOB PEMBERTON

Appellant No. 523 EDA 2016

Appeal from the PCRA Order January 6, 2016

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0001332-2013

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

JUDGMENT ORDER BY STEVENS, P.J.E.: FILED SEPTEMBER 27, 2016

Jacob Pemberton (“Appellant”) appeals from the order entered by the 

Court of Common Pleas of Bucks County denying as untimely his motion 

requesting leave to reinstate his direct appeal rights nunc pro tunc, which 

the court correctly treated as his first petition for collateral relief under the 

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541 et seq. In 

response, the Commonwealth supports Appellant’s appeal, agreeing that it 

inadvertently misrepresented filing deadlines dispositive to the timeliness 

question presented to the court. As we find the record supports the parties’ 

unified position, we vacate the order denying relief and remand the matter 

for further proceedings.

On June 17, 2013, Appellant pled guilty to the offenses of Attempted 

Murder, Robbery, Criminal Conspiracy, and related offenses. Initially, on 
J-S64041-16

- 2 -

September 4, 2013, the court imposed an aggregate sentence of not less 

than 20 nor more than 40 years’ incarceration, but, on December 17, 2013, 

it granted Appellant’s motion to modify sentence and imposed a new 

aggregate sentence of incarceration of not less than 17 1⁄2 to 35 years. 

Appellant filed a timely direct appeal, but this Court, on September 8, 2014, 

dismissed the appeal for Appellant’s failure to file an appellate brief.

On April 13, 2015, Appellant filed with the lower court a Motion 

seeking leave to file post-trial motions and a direct appeal nunc pro tunc. 

The court properly treated this motion as a PCRA petition. See 

Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999). On July 8, 2015, the 

Commonwealth filed a motion to dismiss the PCRA petition on jurisdictional 

grounds, claiming that Appellant had actually filed an untimely postsentence motion in 2013, which, in turn, meant his judgment of sentence 

became final on October 4, 2013. As Appellant’s PCRA petition of April 13, 

2015, was clearly filed more than one year later, it was time-barred under 

Section 9545(b)(1), the Commonwealth posited. The court heard argument 

on the issue and, on January 6, 2016, agreed with the Commownealth’s 

position and dismissed Appellant’s petition as untimely.

After Appellant filed the present appeal, the parties came to an 

agreement that Appellant had, in fact, filed a timely post-sentence motion. 

Pursuant to Pa.R.Crim.P. 720(A)(1), Appellant had ten days after receiving 

sentence on September 4, 2013, to filed a timely post-sentence motion. His 

filing twelve days later, on Monday, September 16, 2013, was nevertheless 
J-S64041-16

- 3 -

timely pursuant to 1 Pa.C.S. 1908, which provides “[w]henever the last day 

of any [period of time . . . is referred to in any statute] shall fall on a 

Saturday or Sunday . . . such day shall be omitted from the computation.” 

The parties further agree that, because the post-sentence motion was 

timely, all subsequent filings made by Appellant were timely, as well, 

including his motion for nunc pro tunc relief construed as a PCRA petition.

Our review of the record supports the parties’ mutual position that 

Appellant’s motion met the jurisdictional requirements of the PCRA. 

Accordingly, deeming the PCRA court’s denial of relief on jurisdictional 

grounds erroneous, we vacate the order entered below and remand this 

matter to the PCRA court for further proceedings consistent with this 

decision.

Order Vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/27/2016