J-S29011-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SELINA E. PROPER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1289 WDA 2021

Appeal from the Judgment of Sentence Entered September 28, 2021

In the Court of Common Pleas of Clearfield County 

Criminal Division at No(s): CP-17-CR-0000495-2020

BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: FILED: OCTOBER 25, 2022

Selina E. Proper appeals from the judgment of sentence ordering her to 

pay a fine, costs of prosecution, and restitution in the amount of $1,248.88 

after she pleaded guilty to disorderly conduct. Proper filed an untimely postsentence motion challenging the legality of the imposition of restitution, along 

with a motion to allow her to file the post-sentence motion nunc pro tunc. 

Following a hearing on those motions, the trial court entered an order directing 

the Commonwealth to provide documentation and argument relevant to the 

restitution within ten days so that the court could rule on the post-sentence 

motion. Before those ten days elapsed, and while the motion was still pending, 

Proper filed a notice of appeal to this Court. Given this procedural landscape, 

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* Retired Senior Judge assigned to the Superior Court.
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we find Proper’s judgment of sentence was not yet final at the time she filed 

her notice of appeal, and her appeal is therefore interlocutory. Accordingly, 

we quash the appeal. We also direct the trial court to allow the Commonwealth 

the opportunity to comply with the trial court’s order directing the 

Commonwealth to provide documentation and argument on the restitution 

issue, and for the trial court to then rule on Proper’s post-sentence motion.

Proper was charged with, inter alia, public drunkenness, see 18 Pa. 

C.S.A. § 5505, and disorderly conduct for engaging in fighting, see 18 Pa. 

C.S.A. § 5503(a)(1), after she reportedly hit her neighbor in the head with a 

baseball bat during an altercation. Ultimately, Proper agreed to plead guilty to 

the disorderly conduct charge. The plea agreement called for a sentence of 

fines and costs.

The trial court held a sentencing hearing on September 28, 2021. At the 

hearing, the Commonwealth announced that the sentence to be imposed 

involved prosecution costs, a fine, as well as restitution to the victim in the 

amount of $1,248.88. The Commonwealth did not provide any documentation 

substantiating this figure, but represented that the restitution amount 

included restitution for the victim’s relocation costs. Proper objected to the 

imposition of the restitution because it was the first she had heard of it. 

However, she agreed with the court that she could follow up her objection by 

requesting a restitution hearing. The court then sentenced Proper to the costs 

of prosecution, a $250 fine, and restitution in the amount of $1,248.88.
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On October 13, 2021, more than ten days after her sentencing on 

September 28, 2021, Proper filed an untimely “post-sentence motion to 

correct non-waivable illegal sentence.” See Pa.R.Crim.P. 720 (A)(1) 

(providing that a defendant must file a post-sentence motion within ten days 

of the imposition of sentence in order for the motion to be timely). 

In the motion, Proper challenged the legality of the restitution portion 

of her sentence. Proper noted that a sentencing court must order restitution 

as part of a direct sentence for a crime only where property has been stolen 

or where the “victim ... suffered personal injury directly resulting from the 

crime.” 18 Pa. C.S.A. § 1106(a). According to Proper, Section 1106(a) was 

inapplicable to her case as she did not plead guilty to a property crime or to 

causing personal injury. Instead, Proper maintained in the motion, she only 

pleaded guilty to disorderly conduct and did not admit she was criminally 

responsible for any injury sustained by the victim. Proper further maintained 

that in order for the court to sentence her to pay restitution, the 

Commonwealth was required to, but had not, shown a direct causal connection 

between the disorderly conduct and the victim’s relocation. 

In the same motion, Proper requested that the court allow her to file the 

post-sentence motion nunc pro tunc. To that end, Proper alleged a breakdown 

in the judicial process had prevented her from filing the motion within ten days 

of the imposition of her sentence. 
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The court held a hearing on the motions on October 25, 2021. At the 

hearing, the Commonwealth reported that the $1,248.88 restitution amount 

also included $248.88 in lost wages, in addition to the relocation costs. 

Proper’s argument at the hearing focused on the relocation costs. She 

asserted that she had illegally been sentenced to pay restitution for the 

relocation costs because the relocation was not directly related to the 

disorderly conduct charge to which she pleaded guilty. Moreover, Proper 

asserted that she had not heard any facts or evidence regarding the restitution 

amounts or the relocation of the victim, claiming that “just because the 

Commonwealth says it doesn’t make it so.” N.T, 10/25/21, at 6. The 

Commonwealth was not entirely clear whether, or to where, the victim had 

moved. See id. at 6-8. The court stated that it “want[ed] proof of the moving, 

plus all expenses; and it [also] want[ed] it provided to [Proper].” Id. at 8.

Proper asked about the timing for filing an appeal, and the court replied:

If you need to file an appeal, go file your appeal, because I want 

proof that they provided you documentation as to the restitution. 

I’m not going to make a decision until I find out that’s been done. 

And then I’m going to have [the Commonwealth] say how it 

relates to – what the nexus is from the offense to the award of 

restitution, and they shall do that within 10 days.

Id. at 9-10. When asked by Proper whether the ten days tolled her deadline 

to file an appeal, the court reiterated Proper had three days, or until October 

28, 2021, to file an appeal. See id. at 10. The trial court then filed an order 

mirroring its instruction to the Commonwealth to provide a “correlation 

between the award of restitution amounts” within ten days and advising the 
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parties it would issue an order on Proper’s post-sentence motion thereafter. 

Trial Court Order, 11/1/21 (single page).

Two days after the hearing, on October 27, 2021, Proper filed a notice 

of appeal to this Court. Proper complied with the trial court’s order to file a 

Pa.R.A.P. 1925(b) statement of matters complained of on appeal. In response, 

the trial court issued its Pa.R.A.P. 1925(a) opinion. In the opinion, the court 

found that: restitution had been mandated by 18 Pa.C.S.A. § 1106; Proper’s 

filing of her notice of appeal rendered the court unable to rule on Proper’s 

post-sentence motion pursuant to Pa.R.A.P. 1701(a); the court properly 

ordered restitution for the victim’s lost wages as there was a direct, causal 

correlation between the lost wages and the disorderly conduct conviction; and 

finally, the court improperly awarded restitution for the victim’s relocation 

costs as there was no direct, causal correlation between the relocation and 

the disorderly conduct conviction. The court therefore stated it “believe[d] the 

appropriate resolution of [Proper’s] claims is [to] remand to allow this Court 

to rule on [Proper’s] outstanding Post Sentence Motion and amend the 

restitution.” Trial Court Opinion, 11/30/2021, at 5.

We agree with the trial court to the extent that this appeal is not properly 

before us. As noted above, Proper filed an untimely post-sentence motion and 

a motion to file that post-sentence motion nunc pro tunc. The court did not 

dismiss the post-sentence motion as untimely. Instead, it entered an order 

directing the Commonwealth to respond to Proper’s post-sentence motion by 
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providing documentation and argument relating to the restitution within ten 

days. The court stated that it would rule on the post-sentence motion once 

those ten days had elapsed. Importantly, that ten day deadline fell outside 

the period for Proper to file a timely appeal. Because of that timing, and before 

the Commonwealth’s deadline to supplement the record, Proper filed a notice 

of appeal. Under these circumstances, we conclude that the trial court, despite 

some possibly intemperate and contradictory language in the heat of 

addressing a busy schedule, explicitly granted Proper nunc pro tunc relief.1 

This means, in turn, that when Proper filed her notice of appeal, her 

post-sentence motion remained pending and her judgment of sentence was 

therefore not yet final or appealable. As this Court previously explained in a 

case where the appellant also prematurely filed a notice of appeal while his 

post-sentence motion was still pending:

If post-sentence motions are timely filed, [ ] the judgment of 

sentence does not become final for purposes of appeal until the 

trial court disposes of the motion, or the motion is denied by 

operation of law. Moreover, the comments to [Pa.R.Crim.P.] 1410 

[now Pa.R.Crim.P. 720] explicitly provide that “no direct appeal 

may be taken by a defendant while his or her post-sentence 

motion is pending.” Application of these authorities convinces us 

that at the time [the] appellant filed his notice of appeal, the 

judgment of sentence had not been made final via either the 

disposition of [the] appellant’s post-sentencing motions by the 

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1We note that if we were to conclude the trial court had not granted nunc pro 

tunc relief, we would be addressing the merits of Proper’s challenge to the 

imposition of restitution on the current record. See Commonwealth v. 

Barger, 956 A.2d 458, 464 (Pa. Super. 2008) (en banc) (holding that a 

challenge to the trial court’s authority to impose restitution concerns the 

legality of the sentence and is therefore non-waivable).
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trial court or the entry of an order denying the motions by 

operation of law.

Commonwealth v. Borrero, 692 A.2d 158, 159-160 (Pa. Super. 1997) 

(citations omitted).

The Borrero court found that since the appellant’s judgment of 

sentence was not final and the appeal was therefore interlocutory, the Court 

was required to quash it “[b]ecause we are precluded from exercising 

jurisdiction over appeals from nonfinal orders or judgments.” Id. at 160. In 

line with Borrero, we must likewise quash Proper’s notice of appeal as 

interlocutory.2

In conjunction with that quashal, we provide the following instructions. 

The Commonwealth must be afforded the opportunity to comply with the 

court’s order directing it to respond to Proper’s post-sentence motion by 

providing documentation and argument on the restitution challenged by 

Proper as illegal in her post-sentence motion. The Commonwealth will have 

ten days to do so, as originally ordered by the trial court. Once those ten days 

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2 The Borrero Court went on to note that the trial court may have been under 

the mistaken assumption, shared by the trial court here, that the appeal 

divested the trial court of jurisdiction to decide the post-sentence motion. 

However, as the Borrero Court found, the appeal did not divest the trial court 

of jurisdiction under the circumstances of that case. The Court explained this 

was so because the judgment of sentence was not final, and consequently not 

appealable, and “a trial court may proceed further in any matter in which a 

nonappealable order has been entered, notwithstanding the filing of a notice 

of appeal.” Id. at 161 n.4. 
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have elapsed, the trial court may proceed to rule on the post-sentence motion 

filed by Proper.

Notice of Appeal quashed with instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/25/2022