J-S55028-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MADENA SIMS

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 377 WDA 2020

Appeal from the Judgment of Sentence Entered February 10, 2020

In the Court of Common Pleas of Allegheny County at

No(s): CP-02-CR-09334-2019

COMMONWEALTH OF PENNSYLVANIA

v.

MADENA SIMS

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 378 WDA 2020

Appeal from the Judgment of Sentence Entered February 10, 2020

In the Court of Common Pleas of Allegheny County at

No(s): CP-02-CR-09333-2019

BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY McCAFFERY, J.: FILED MARCH 19, 2021

Madena Sims (Appellant) appeals from the judgments of sentence 

entered in the Allegheny County Court of Common Pleas, at two related 

dockets (as detailed infra), following a waiver trial and convictions for 

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* Retired Senior Judge assigned to the Superior Court.
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disorderly conduct.

1

 Appellant’s court-appointed counsel, James Baker, 

Esquire (Plea Counsel)2, has filed a petition to withdraw from representation 

and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).3 We grant Plea 

Counsel’s petition to withdraw, and affirm Appellant’s judgments of sentence.

I. Facts & Procedural History

Appellant and Stella Henderson (Complainant) are neighbors in a 

multistory apartment building.4 N.T. Trial, 2/10/20, at 23. Appellant resides 

on the third floor of the building, while Complainant occupies a unit on the 

first. Id. Tensions between the former friends grew following two separate 

events: the first, a physical altercation in which Appellant’s finger was broken; 

and the second, a dispute involving the parties’ trash cans. Id. at 15, 25, 35, 

77. At the time of the events herein, Appellant was subject to a no-contact 

order, imposed as a result of the parties’ trash dispute. Id. at 15-16, 26. On 

July 15, 2019, at approximately 10 o’clock in the morning (Workplace 

Incident), Complainant was leaving for work when she encountered Appellant, 

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1 18 Pa.C.S. §§ 5503(a)(1), 5503(a)(4).

2 Plea Counsel serves as an Assistant Public Defender at the Office of the Public 

Defender, Allegheny County.

3 Collectively referred to as “Anders Brief.”

4 Appellant was known to the Complainant as “Angel.” N.T. Trial, 2/10/20, at 

66 (“Well, I don’t know her as Stella, I know her as Angel.”). 
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who “was out her [third story] window waiting for [Complainant] to come 

outside[.]” N.T. Trial, at 24. Appellant yelled at Complainant to “get [her] 

garbage.” Id. She then began calling Complainant “B-I-T-C-H’s and saying 

[Complainant was] a home wrecker[.]” Id. Complainant testified, Appellant 

then “pulled her breast out and licked [it] at me. And then [Appellant] got on 

the phone with her daughters and told her daughters, ‘Come get this B-I-TC-H, I’m tired of her.’” Id. at 25-26, 27-28. Complainant claims she did not 

respond, continued towards her vehicle, and left for work. Id. 26, 28.

Approximately 20 minutes later, one of Appellant’s daughters arrived at 

Complainant’s workplace and began a conversation with Complainant on the 

sidewalk. N.T. Trial, at 28. Appellant arrived moments later with a second 

daughter “to jump” Complainant. Id. at 28-29. “[T]hings started getting a 

little hostile[,]” so Complainant withdrew to the inside of her workplace. Id. 

at 29, 42. Complainant’s boss, as well as a friend who had been walking by 

at the time, blocked Appellant and her daughters from entering the store. Id. 

at 29, 43. Tensions flared between the parties after Appellant “spit on 

[Complainant’s] boss, three times[,]” and Complainant “shook up a two liter 

bottle [of soda]” and threw it at Appellant. Id. at 43. Afterwards, Appellant 

and her daughters left, and Complainant called the police. Id. at 43, 44.

Later that night, in the early morning hours of July 16, 2019, 

Complainant heard Appellant and a friend return to Appellant’s third floor 

apartment (2AM Incident). N.T. Trial, at 30. Complainant testified she went 
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outside to speak with friends, who had “heard about [Appellant and her friend] 

coming to fight [Complainant], so they came to [Complainant’s] house to see 

if [she] was okay[.]” Id. At which time, Appellant began yelling from her

third floor window. Id. The argument caused a disturbance loud enough to 

prompt a neighbor to phone the police. Id. Sargent John Snyder of the 

Wilkinsburg Police Department responded to the scene at roughly 2 o’clock in 

the morning. Id. at 11. While questioning two pedestrians, Sgt. Snyder heard 

“yelling and screaming coming from around the corner.” Id. Upon arrival to 

the apartment building, Sgt. Snyder testified “[Complainant] was talking back, 

but the majority of the yelling, the profanity, the vulgarity was coming from 

the third-floor window[.]” Id. Sgt. Snyder also testified that while he spoke 

with Complainant outside, Appellant continued “yelling out the windows 

profanity, nasty stuff. No threats or hates, just nasty stuff . . . calling 

[Complainant] a bitch, nasty ho, whore[,] that kind of stuff.” Id. at 13, 31. 

Appellant would not answer the door when Sgt. Snyder attempted to speak 

with her. Id. at 13-14. 

Later that afternoon, again, the parties became disputatious (Phone 

Incident). N.T. Trial, at 32. Complainant was sitting on her porch when 

Appellant arrived home and allegedly confronted her. Id. at 32. Complainant 

called the police again. Id. Complainant testified the police spoke to both 

her and Appellant. Id. at 32-33. Not ten minutes after police left, 

Complainant alleges to have received a telephone call from Appellant using an 
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unlisted number. Id. at 33-34. The caller told Complainant, “You know you’re 

getting your ass whooped, right?” Id. at 34. Complainant claims to have 

received numerous calls from an unlisted number in the past, all of which she 

attributes to Appellant. Id. at 34, 35-37.

Charges against Appellant were filed in the Court of Common Pleas of 

Allegheny County at two separate dockets. On October 4, 2019, Appellant 

was charged at trial docket CP-02-CR-0009333-2019 (Docket 9333) with 

indecent exposure, disorderly conduct, and harassment with respect to the 

Workplace and 2AM incidents.5 On October 8, 2019, Appellant was separately 

charged with terroristic threats and harassment at docket CP-02-CR-09334-

2019 (Docket 9334) with respect to the Phone Incident.6 On February 10, 

2020, the charges proceeded to a consolidated waiver trial. Prior to the 

commencement of trial, the Commonwealth withdrew Appellant’s charge for 

indecent exposure. N.T. Trial, at 3. At the conclusion of trial, Appellant’s 

remaining charges at Docket 9333 were amended to separate counts of 

summary disorderly conduct.7 Id. at 91-92. Likewise, Appellant’s harassment 

charge at Docket 9334 was also amended to one count of summary disorderly 

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5 18 Pa.C.S. §§ 3127(a), 5503(a)(1), 2709(a)(1), respectively. 

6 18 Pa.C.S. §§ 2706(a)(1), 2709(a)(1). 

7 18 Pa.C.S. § 5503(a)(1).
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conduct.8 Id. Then, at Docket 9333, Appellant was found guilty of summary 

disorderly conduct under subsection 5503(a)(1) on two counts. Id. at 93. At 

Docket 9334, Appellant was found not guilty of terroristic threats and guilty 

of summary disorderly conduct pursuant to subsection 5503(a)(4). Id. at 93. 

A sentencing hearing was held immediately following announcement of the 

verdicts. N.T. Trial, at 93. At Docket 9333, Appellant received an aggregate 

sentence of 180 days’ non-reporting probation, one 90 day term for each of 

her two disorderly conduct convictions. See Amended Sentencing Order, 

3/17/20. She was also ordered to pay summary court costs of $574.49. Id. 

At Docket 9334, Appellant was also sentenced to 90 days’ of non-reporting 

probation, to run concurrently with her sentence at Docket 9333. Id. As a 

condition of her probation, Appellant was ordered to have no contact with 

Complainant. Id.

On March 9, 2020, Appellant submitted an untimely post-sentence 

motion along with a Petition to Accept Post-Sentence Motion Nun Pro Tunc

(NPT Petition). In the NPT Petition, Appellant’s trial counsel stated he was 

notified by Appellant three days prior “that she desired to file a post-sentence 

motion.” Petition to Accept Post-Sentence Motion Nun Pro Tunc, 3/9/20, at 2. 

Counsel concluded “a weight of the evidence claim must be raised on 

[Appellant’s] case[,] and to deny the NPT Petition would be to “den[y 

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8 18 Pa.C.S. § 5503(a)(4).
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Appellant] her absolute[,] constitutional right to a direct appeal[.]” Id. at 3, 

4. The next day, on March 10, 2020, Appellant’s NPT Petition was denied, as 

was her post-sentence motion. See Orders, 3/10/20. 

On March 11, 2020, Appellant filed timely notices of appeal from each 

of her dockets.9 Appellant was ordered to file a Pa.R.A.P. 1925(b) concise 

statement, which she timely filed on June 1, 2020.10 In the concise statement, 

Plea Counsel averred he was unable to discover any non-frivolous appealable 

matters and stated his intention to file an Anders brief and motion to 

withdraw his representation. Appellant’s Concise Statement of Errors 

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9 Appellant has thus complied with Pa.R.A.P. 341(a) (“[A]n appeal may be 

taken as of right from any final order of a government unit or trial court.”), 

and Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (“[W]hen a single 

order resolves issues arising on more than one lower court docket, separate 

notices of appeal must be filed.”).

10 Appellant’s Pa.R.A.P. 1925(b) concise statement was originally due April 2, 

2020. See Order 3/12/20. However, owing to the COVID-19 crisis, a judicial 

emergency was declared in the Fifth Judicial District of Pennsylvania and filing 

deadlines were suspended from March 16th through June 1, 2020. See 

Amended Fifth Judicial District Emergency Operations Plan, No. 23 WM 2020, 

5/28/20, at 6. Appellant’s deadline to file her concise statement was thus 

extended from April 2, 2020, to June 19, 2020, pursuant to the court’s 

amended operations plan. Id. (“New deadlines shall be calculated by adding 

[78 days] to the original deadline.”). Nevertheless, we acknowledge 

Appellant’s diligence. On April 28, 2020, before the expiration of the court’s 

original suspension of filing deadlines, Appellant submitted a request for an 

extension of time to file her Pa.R.A.P. 1925(b) concise statement. See 

Petition for Extension of Time to File Concise Statement of Errors Complained 

of on Appeal, 4/28/20. Appellant’s petition was granted by order of the trial 

court and her filing deadline was extended to June 1, 2020. See Order, 

4/30/20.
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Complained of on Appeal, 6/1/20, at 3. Appellant’s concise statement also 

asserts a challenge to the weight and sufficiency of the evidence. Id. at 3-4. 

On June 29, 2020, the trial court filed a Pa.R.A.P. 1925(a) supplemental 

opinion. Appellant’s cases were consolidated sua sponte by order of this 

Court. See Order, 3/18/20. On October 1, 2020, Plea Counsel filed a Petition 

for Leave to Withdraw and accompanying Anders brief. To his brief, Plea 

Counsel attached a letter sent to Appellant explaining her options to either 

“discontinue [the] appeal[,] . . . hire private counsel to prepare an alternative 

brief, or” prepare a pro se brief. Anders Brief, Appx. D, 10/1/20, at 4. On 

January 5, 2021, this Court received Appellant’s pro se Letter to the Superior 

Court in Response to Anders Brief.

II. Petition to Withdraw and Anders Brief

Preliminarily, we must address Plea Counsel’s petition to withdraw and 

the accompanying Anders brief, both alleging the instant appeals are 

frivolous. Plea Counsel must first “petition to withdraw stating that he or she 

has made a conscientious examination of the record and determined that the 

appeal would be frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 

1195 (Pa. Super. 2018) (en banc) (citation omitted). Anders withdrawal may 

be granted if, in addition to the petition to withdraw, counsel also files a brief 

satisfying the requirements set forth in Santiago, supra. Id. at 1195-96. 

This Court must then address the petition to withdraw and accompanied 
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Anders brief before we may review the merits of the issues presented therein. 

Id. 

Counsel’s Anders brief must:

(1) provide a summary of the procedural history and facts, with 

citations to the record; (2) refer to anything in the record that 

counsel believes arguably supports the appeal; (3) set forth 

counsel’s conclusion that the appeal is frivolous; and (4) state 

counsel’s reasons for concluding that the appeal is frivolous. 

Counsel should articulate the relevant facts of record, controlling 

case law, and/or statutes on point that have led to the conclusion 

that the appeal is frivolous.

Id. at 1196, quoting, Santiago, 978 A.2d at 316. In addition, counsel must 

provide the client a copy of the Anders brief, along with a letter advising the 

client of the option to retain new counsel or proceed pro se. Yorgey, 188 

A.3d at 1195-96 (citation omitted). Indeed: 

Anders specifically contemplates that, after counsel files the

Anders brief, an appellant may file a pro se brief. . . . [P]art of 

counsel’s duty under Anders is to advise the appellant of the right 

to raise points in addition to those in counsel’s Anders brief. 

Thus, when conducting an Anders review, this Court will consider 

not only the brief filed by counsel but also any pro se appellate 

brief.

Commonwealth. v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007) (citations 

omitted). “Once counsel has satisfied the above requirements, it is then this 

Court’s duty to conduct its own review of the trial court[ ] proceedings and 

render an independent judgment as to whether the appeal is, in fact, wholly 

frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 

2007) (en banc) (citation omitted). If we agree with counsel’s assessment, 
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“we may grant counsel’s request to withdraw and dismiss the appeal[.]” 

Yorgey, 188 A.3d at 1196, citing Anders, 386 U.S. at 744.

Our thorough review of Plea Counsel’s submissions reveal he has 

satisfied the substantive requirements of Anders and Santiago. First, Plea 

Counsel submitted a petition to withdraw, stating, “[u]ndersigned [c]ounsel 

has made a full and thorough examination of the record and case law to 

conclude that [Appellant’s] issues are frivolous.” See Petition for Leave to 

Withdraw: Anders Brief, 10/1/20, at 2-3. In addition, Plea Counsel also filed 

the required Anders brief, detailing: the relevant factual and procedural 

history of the case with citations to the record, Anders Brief at 7-14; his 

conclusion the appeal is frivolous, id. at 16, 24; and supporting reasons for 

why the appeal is frivolous, id. at 16-23, 24-28. Finally, attached to his brief 

is a letter addressed to Appellant advising her of the option to retain new

counsel or proceed pro se. See Anders Brief, Appx. D, at 4; see also 

Yorgey, 188 A.3d at 1195-96. We may therefore proceed to conduct an 

independent review of the record to determine whether the appeal is wholly 

frivolous.11 See Goodwin, 928 A.2d at 291. In his Anders brief, Plea 

Counsel raises the following issues:

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11 While we conclude Plea Counsel’s submissions comply with the substantive 

requirements of Anders and Santiago, we clarify the technical requirements 

of the Anders brief. Counsel’s brief must include either a reference to 

anything in the record arguably supporting the appeal, or an affirmative 

statement “there were no such references for him to make.” Santiago, 978 

A.2d at 360 (“Without one or the other, we are not assured, as Anders
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[1] Is [Appellant’s] claim that there was insufficient evidence to 

convict her of each count of summary disorderly conduct 

frivolous?

[2] Is [Appellant’s] claim that the verdict on each summary 

disorderly conduct was against the weight of the evidence 

frivolous?

Anders Brief at 6.

III. Sufficiency of the Evidence

Plea Counsel concludes it would be frivolous to challenge Appellant’s 

convictions for summary disorderly conduct on the basis of insufficient 

evidence. Anders Brief at 16. He asserts Appellant’s conduct “‘disturb[ed] 

the peace and dignity of the community.’” Id. at 17, citing, Commonwealth 

v. Greene, 189 A.2d 141, 144 (Pa. 1963). Plea Counsel also submits 

precedent requires affirmance in cases of “multiple, prolonged and vocal 

disagreements with a neighbor[,]” which occur in public areas. Id. at 22. In 

response, Appellant simply asserts, “[t]he evidence used is insufficient.” 

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requires, that counsel fully performed his duty as Santiago’s advocate[.]”). 

Here, we are satisfied Plea Counsel has “fully performed his duty as 

[Appellant’s] advocate to independently search the record as a trained 

advocate with an eye to uncovering appealable error[.]” See Santiago, 978 

A.2d at 360. Plea Counsel’s reference to his “full and thorough examination 

of the record[,]” is evidenced in his “candid assessment of the complete lack 

of merit in his client’s case,” thereby satisfying the substantive requirements 

of Anders and Santiago. See Petition for Leave to Withdraw: Anders Brief, 

10/1/20, at 2-3; see also Santiago, 978 A.2d at 359. Our independent 

review of the record confirms Plea Counsel has fulfilled his professional 

obligations as Appellant’s counsel. See Commonwealth v. Cox, 231 A.3d 

1011, 1016 (Pa. Super. 2020) (in context of Anders withdraw, this Court may 

overlook procedural deficiencies in appellate court filings to ensure Anders

counsel has not overlooked non-frivolous issues).
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Appellant’s pro se Letter to the Superior Court in Response to Anders Brief, 

1/5/21, at 4.

Our independent review of the trial court proceedings is guided by wellestablished principles:

The standard we apply in reviewing the sufficiency of the evidence 

is whether viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying [the above] test, we may not 

weigh the evidence and substitute our judgment for the factfinder. In addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a defendant’s guilt 

may be resolved by the fact-finder unless the evidence is so weak 

and inconclusive that as a matter of law no probability of fact may 

be drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

considered. Finally, the trier of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

is free to believe all, part or none of the evidence.

Goodwin, 928 A.2d at 291 (citation omitted). For ease of review, we also set 

forth the relevant statutory provisions:

(a) Offense defined.—A person is guilty of disorderly conduct if, 

with intent to cause public inconvenience, annoyance or alarm, or 

recklessly creating a risk thereof, he:

(1) engages in fighting or threatening, or in violent or 

tumultuous behavior; [or]

* * *

(4) creates a hazardous or physically offensive condition by 

any act which serves no legitimate purpose of the actor.
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18 Pa.C.S. § 5503(a)(1), (4).

Here, the trial court explained:

[T]he Commonwealth presented evidence that [Appellant] 

threatened and shouted profanities towards [Complainant] from 

the third-floor window, [and] exposed her breast and licked it in 

an apparent threat towards [Complainant]. [Appellant] was so 

loud in her shouting at 2:00 a.m. such that a neighbor called the 

police. Furthermore, the Commonwealth presented evidence that 

[Appellant] called [Complainant] from a blocked phone number 

and threatened to “kick her ass.”

Trial Ct. Op., 6/29/20, at 4-5. 

Based on our independent, comprehensive review of the trial court 

proceedings in the light most favorable to the verdict winner, see Goodwin, 

928 A.2d at 291, we decline to find the evidence was insufficient to support 

Appellant’s convictions for disorderly conduct. Not only does Appellant 

concede she “did by provocation breach the peace of the community[,]” the 

testimony introduced at trial reveals she participated in, if not instigated, three 

separate events resulting in “vociferous shouting and yelling which 

provoke[ed] retaliation and public commotion[.]” See Appellant’s pro se

Letter to the Superior Court in Response to Anders Brief, 1/5/21, at 2; see 

also Greene, 189 A.2d at 144. Pertinently, Appellant was subject to a nocontact order, imposed as a result of the parties’ contentious history. N.T. 

Trial, at 15-16, 26. With regard to the Workplace Incident, Appellant 

screamed profanities from her third-floor window before Complainant left for 

work, id. at 24-28, and then solicited the assistance of her daughters in 
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traveling to Complainant’s workplace where Complainant’s boss and friend 

had to restrain the parties from attacking each another. Id. at 28-29. Not 

only was Complainant’s boss placed in the middle of the parties’ dispute, he 

was spit on three times. Id. at 43. The parties’ dispute continued into the 

early hours of the morning. Id. at 30. The early morning behavior caused 

such a disturbance a neighbor phoned the police and the responding officer 

heard screaming from around the corner. Id. at 11, 30. Appellant was brazen 

enough to continue screaming “profanity” and “nasty stuff” in the presence of 

the Wilkinsburg Police Department, at 2 o’clock in the morning. Id. at 13, 31. 

And yet, the dispute did not end. The very next day, another argument 

between the parties resulted in a threatening telephone call. Id. at 34. 

In consideration of the foregoing, the evidence is not “so weak and 

inconclusive that as a matter of law no probability of fact may be drawn from 

the combined circumstances.” See Goodwin, 928 A.2d at 291. We also 

emphasize the trial court was free to believe all, part, or none of the testimony 

introduced at trial. Id. Thus, the evidence was sufficient to establish 

Appellant recklessly created the risk of public inconvenience, annoyance, or 

alarm by engaging in fighting, threatening, or violent behavior. See 18 

Pa.C.S. § 5503(a)(1). The evidence also sufficiently establishes Appellant 

recklessly created a hazardous or physically offensive condition which served 

no legitimate purpose. See 18 Pa.C.S. § 5503(a)(4); see also Greene, 189 

A.2d at 144. Thus, after an independent review of the record, we conclude 
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Appellant’s challenge to the sufficiency of the evidence is wholly frivolous. 

See Goodwin, 928 A.2d at 291. 

IV. Weight of the Evidence 

Plea Counsel also avers Appellant’s challenge to the weight of the 

evidence is equally frivolous. Anders Brief at 24. He maintains a “mere 

conflict in testimony” is not adequate grounds to award a new trial, id. at 25, 

quoting, Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000), and 

Appellant cannot show that “the trial court abused its discretion by ignoring 

evidence of greater weight.” Id. at 27-28, citing, Commonwealth v. 

Champney, 832 A.2d 403 (Pa. 2003). In response, Appellant argues, “the 

weight of the evidence and sentencing was not fair.” Appellant’s pro se Letter 

to the Superior Court in Response to Anders Brief, 1/5/21, at 2. She 

adamantly denies the allegations asserted by the Commonwealth, and 

maintains her shouting profanity and communicating a threat over the 

telephone were all done in self-defense. 12 Id. at 3-4. 

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12 Appellant also advances two other arguments. The first is a challenge to 

the effectiveness of her trial counsel. Appellant’s pro se Letter to the Superior 

Court in Response to Anders Brief, 1/5/21, at 2-4. As the instant case 

appears before this Court on direct appeal, Appellant’s ineffectiveness claim 

is misplaced, and must be advanced pursuant to the Post Conviction Relief 

Act. See 42 Pa.C.S. §§ 9541-9546; see also Commonwealth v. Grant, 813 

A.2d 726 (2002) (confirming that, absent certain unusual circumstances, 

ineffectiveness claims are to be raised via the PCRA and not on direct appeal). 

The second claim is that she “was charged with [h]arassment twice for the 

same incident[,] and found guilty, causing Double Jeopardy.” Appellant’s pro 

se Letter to the Superior Court in Response to Anders Brief, 1/5/21, at 2-4. 

We note our review is limited to those facts which are contained in the certified
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Before we independently evaluate the legitimacy of Appellant’s weight 

challenge, we may, sua sponte, assess whether the challenge properly invokes 

this Court’s jurisdiction. See Commonwealth v. Capaldi, 112 A.3d 1242, 

1244 (Pa. Super. 2015) (citation omitted). 

[A] weight of the evidence claim must be preserved either in a 

post-sentence motion, by a written motion before sentencing, or 

orally prior to sentencing. Failure to properly preserve the claim 

will result in waiver, even if the trial court addresses the issue in 

its opinion. 

Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014) 

(citations omitted). A post-sentence motion containing a challenge to the 

weight of the evidence must be filed within 10 days after the imposition of 

sentence. See Pa.R.Crim.P. 607, 702(A)(1). Ordinarily, failure to file a postsentence motion within the applicable time constraints results in waiver of the 

issues presented therein. Commonwealth v. Wrecks, 931 A.2d 717, 719 

(Pa. Super. 2007). 

However, a defendant may request nunc pro tunc consideration of an 

untimely post-sentence motion within thirty days of the judgment of sentence. 

Capaldi, 112 A.3d at 1244. A defendant seeking relief nunc pro tunc must 

request consideration of a post-sentence motion nunc pro tunc and the trial 

____________________________________________

record, and we may not stray dehors the record. Commonwealth v. 

O’Black, 897 A.2d 1234, 1240 (Pa. Super. 2006) (citations omitted). Here, 

the certified record is entirely lacking in support of Appellant’s challenge. Her 

claim is therefore not properly before the Court. Id.
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court must expressly grant the nunc pro tunc relief. Id., citing

Commonwealth v. Dreves, 839 A.2d 1122, 1128-29 (Pa. Super. 2003) (en 

banc). Moreover, “a trial court’s resolution of the merits of [a] late postsentence motion is no substitute for an order expressly granting nunc pro tunc 

relief.” Id. (citation omitted). 

Applying the preceding standards, we deem the present challenge

waived. First, Appellant’s sentence was imposed on February 10, 2020. She 

filed a post-sentence motion challenging the weight of evidence 28 days 

later, on March 9th. Appellant also filed a separate and distinct NPT Petition. 

Thus, by filing a separate petition requesting relief nunc pro tunc and detailing 

the circumstances giving rise to the late filing of her post-sentence motion, 

Appellant has satisfied the first prerequisite to receiving nunc pro tunc relief. 

See Capaldi, 112 A.3d at 1244. 

Even so, Appellant has not secured from the trial court an express grant 

of nunc pro tunc relief and has therefore failed to fulfill the second 

prerequisite. See Capaldi, 112 A.3d at 1244. On March 10, 2020, Appellant’s 

NPT Petition was denied. See Order, 3/10/20. The trial court denied 

Appellant’s NPT Petition by striking the word “granted” from the proposed 

order and instead wrote, “denied.” See id. Similarly, the trial court struck 

the word “granted” from the proposed order attached to Appellant’s untimely 

post-sentence motion and cited to the order denying Appellant’s NPT Petition. 

Id. Critically, the certified record on appeal contains no order from the trial 
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court expressly granting Appellant nunc pro tunc relief.13 See Capaldi, 112 

A.3d at 1244. We are therefore without jurisdiction to address Appellant’s 

challenge to the weight of the evidence.14 Id. For the foregoing reasons, we 

conclude Appellant’s weight claim is frivolous.

Additionally, our independent review of the record reveals no nonfrivolous issues that may be brought on appeal.

Petition to Withdraw granted. Judgments of Sentence Affirmed.

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13 Our complete review of the record reveals the trial court proceeded as 

though the NPT Petition had been granted. See Trial Ct. Op., 6/29/20, at 3. 

However, stare decisis compels our conclusion that nun pro tunc relief was not 

expressly conferred. Notwithstanding the trial court’s resolution of Appellant’s 

untimely post-sentence motion, as discussed above, the certified record on 

appeal contains no express grant of nunc pro tunc relief. See Capaldi, 112 

A.3d at 1244. 

14 We acknowledge Plea Counsel’s Anders Brief contained no mention of the 

trial court’s treatment of the NPT Petition or the absence of an express order 

granting nunc pro tunc relief. Nonetheless, we find this omission 

inconsequential to our disposition of the present appeal because Appellant’s 

underlying weight claim would be frivolous. Our thorough review of the record 

does not occasion a finding the trial court abused its discretion in the weight 

afforded the testimony adduced at trial, nor were its judgment manifestly 

unreasonable. See Widmer, 744 A.2d at 753. For these reasons, if 

jurisdiction had been properly invoked, we would conclude Appellant’s weight 

claim is frivolous. See Yorgey, 188 A.3d at 1196.
J-S55028-20

- 19 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/19/2021